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Electronic Discovery

Seriously, Your “Mashup” of eDiscovery Market Estimates Can’t Possibly Be Any Earlier, Right?: eDiscovery Trends

The appearance of the mashed potato graphic can only mean one thing (besides making me hungry, that is!).  It’s time for the eDiscovery Market Size Mashup that Rob Robinson compiles and presents on his Complex Discovery site each year.  It’s also become an annual tradition for him to release it earlier and earlier each year.  And, this year is no exception.

Last year, Rob released his annual mashup over the Christmas holidays.  This year, Rob released his worldwide eDiscovery services and software overview for 2018 to 2023 – before Thanksgiving!  I almost missed it.  At this rate, I predict it before Halloween next year…  :o)

This is the seventh(!) year we have covered the “mashup” and we can continue to gauge how accurate those first predictions were.  The first “mashup” covered estimates for 2012 to 2017 and, last year, we took a look how close the estimate was for 2017 way back when.  This year, we can look at the original 2018 estimate for 2013 to 2018. We’ve also covered the estimates for 2014-2019 (in two parts), 2015 to 2020, 2016 to 2021 and 2017 to 2022 and will undoubtedly look at those in future years.

Taken from a combination of public market sizing estimations as shared in leading electronic discovery publications, posts, and discussions (sources listed on Complex Discovery), the following eDiscovery Market Size Mashup shares general market sizing estimates for the software and services area of the electronic discovery market for the years between 2018 and 2023.

Here are some highlights (based on the estimates from the compiled sources on Rob’s site):

  • The eDiscovery Software and Services market is expected to grow an estimated 13.09% Compound Annual Growth Rate (CAGR) per year from 2018 to 2023 from $10.11 billion to $18.7 billion per year. Services will comprise approximately 69.9% of the market and software will comprise approximately 30.1% by 2023.
  • The eDiscovery Software market is expected to grow at an estimated 13.23% CAGR per year from $3.02 billion in 2018 to $5.62 billion in 2023. In 2018, software comprises 29.9% of the market and, by 2023, 62% of the eDiscovery software market is expected to be “off-premise” – a.k.a. cloud and other Software-as-a-Service (SaaS)/Platform-as-a-Service (PaaS)/Infrastructure-as-a-Service (IaaS) solutions.
  • The eDiscovery Services market is expected to grow at an estimated 13.03% CAGR per year from 2018 to 2023 from $7.09 billion to $13.08 billion per year. The breakdown of the services market by 2023 is expected to be as follows: 65% review, 19% processing and 16% collection.

If we look at the original “mashup” that we covered for 2013 to 2018, the original eDiscovery Software and Services market estimate for 2018 was $11.02 billion, the original Software portion of the estimate was $3.31 billion and the original Services portion of the estimate was $7.72 billion.  So, the original software estimate was overstated at .29 billion, while the original services estimate was overstated by .63 billion.  Overall, that’s an overstatement of .92 billion.  Not surprising, since the CAGR for both has declined in the latest estimates.  Here is the variation in CAGR over all seven “mashups” we have covered.

A couple of other notable stats:

  • The U.S. constitutes approximately 64% of worldwide eDiscovery software and services spending in 2018, with that number decreasing to approximately 59% by 2023.
  • Off-Premise software spending constitutes approximately 52% of worldwide eDiscovery software spending in 2018, with that number increasing to approximately 62% by 2023. This is a slower move to off-premise than previously forecasted.

So, what do you think?  Do any of these numbers surprise you?  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.

A New Product Helps You Get “Context” on Judge’s Opinions and Expert Witnesses: eDiscovery Trends

A legal analytics product being launched last week by LexisNexis analyzes the language of specific judges’ opinions to identify the cases and arguments each judge finds persuasive as well as analytics on expert witnesses.  And, we remember one judge who, sadly, passed away over the weekend.

According to Bob Ambrogi’s LawSites blog (‘Context,’ Launching Today from LexisNexis, Applies Unique Analytics to Judges and Expert Witnesses), the new product, Context, is “déjà vu all over again” (my second favorite Yogi Berra line). The original version of these judge analytics was launched by Ravel Law in 2015. After LexisNexis acquired Ravel in June 2017, development pivoted to incorporating Ravel’s tools into the Lexis Advance legal research platform. The first stage of that incorporation came last June, when Lexis Advance integrated Ravel’s case law visualization tools as a product called Ravel View. Last week’s launch of Context is the second major step in that integration.

Last week’s launch, with judge analytics and expert witness analytics, is the first phase of Context. Future releases will add court analytics, company analytics, and lawyer and law firm analytics.

Bob broke down the capabilities, as follows:

Judge Analytics

What makes this product unique among litigation analytics tools is that it analyzes the language of court documents.  Unlike other products, which can only tell you information such as how long a particular type of case is likely to last, how a judge is likely to rule on a particular type of issue, or how other lawyers have fared before a particular judge, Context analyzes the text of court documents to find language and citations that could prove persuasive to a particular judge. Specifically, it tells you how a judge has ruled on 100 different types of motions and the judges, cases and text the judge most commonly relied on in making those rulings.

Say you are filing a motion for summary judgment. Using Context, you could look up the judge and determine the rate at which that judge grants or denies summary judgment. You could see all of the specific cases in which the judge made these rulings. Then, going deeper, you can see the opinions that the judge most frequently cites in summary judgment cases, and even the specific text from those opinions that the judge most frequently relies on.

With this information, you can tailor your memorandum to fit the judge. You can cite the judges, cases and even passages that you know the judge has relied on in the past and finds persuasive.  Context’s judge analytics cover all federal judges, including appellate judges, and some, but not all, state court judges.  And, there is no backward time limit to Context’s coverage. If a judge has been on the bench for decades, the entirety of the judge’s output is included in Context’s analytics.

Expert Witnesses

The expert witness analytics released last week are a new analytics product not previously offered as part of Ravel’s original set of analytics tools. The reason for that is simple: Ravel did not have data on expert witnesses, but LexisNexis has an extensive set of such data, covering more than 380,000 experts.

For each expert covered by Context, a user can see an overview that provides biographical and experiential information about the expert. For many experts, this includes not only the expert’s current CV, but also prior versions of the CV as it has been presented over the years. The overview also shows whether the expert is typically hired by plaintiffs or defendants, the number of cases per year the expert is engaged in, and the expert’s experience by jurisdiction and areas of law.

Pricing and Availability

LexisNexis is offering 30 days of free access to Context to any Lexis Advance subscriber who registers at www.lexisnexis.com/context. The free trial will run from Jan. 2 to Jan. 31, 2019. In addition, LexisNexis is providing free access starting today to all law school faculty, and to all law students who have a Lexis Advance ID starting Jan. 2.   You can read more about Context (and see screen shot examples of the product) via the link to Bob’s article above.

*  *  *  *  *  *  *  *  *  *

Also, The Sedona Conference® yesterday announced the passing of U.S. Magistrate Judge Craig Shaffer of the District of Colorado, who passed away after a battle with cancer in the early hours of Saturday, December 1.  Judge Shaffer—“Craig” to everyone in The Sedona Conference—was a regular dialogue leader at Working Group 1 meetings and a member of the faculty of three Sedona Conference Institute programs.  In addition to his long legal career, Craig was an invaluable contributor to several Working Group Series publications, including the Commentary on Proportionality in Electronic Discovery (May 2017) and Commentary on Defense of Process (September 2016). He was also one of the original signatories to the Cooperation Proclamation and served on The Sedona Conference Advisory Board since 2006.  You can read more about Judge Shaffer at the TSC website here.

While I never met Judge Shaffer personally, I am certainly aware of him by reputation and it’s clear he has had a significant impact on the legal profession.  My thoughts and prayers are with his family.

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.

Hewlett-Packard/Autonomy Deal Results in More Indictments: eDiscovery Trends

There continues to be more legal fallout from the Hewlett-Packard (HP) 2011 acquisition of Autonomy (which we covered here) and HP’s allegations that there were “serious accounting improprieties, disclosure failures and outright misrepresentations at Autonomy” before the acquisition (which forced HP to take an $8.8 billion charge in 2012.  Then, earlier this year, former Autonomy CFO Sushovan Hussain was convicted of 16 counts of wire and securities fraud related to the $10.3 billion transaction.  Now, more indictments have been handed down.

According to Bloomberg (Ex-Autonomy CEO Michael Lynch Indicated for Fraud Tied to 2011 HP Deal, written by Joel Rosenblatt), Michael Lynch, the former CEO of Autonomy, stepped down Friday as an adviser to U.K. Prime Minister Theresa May after he was charged with fraud in the U.S.  Prosecutors had long identified Lynch, 53, as a co-conspirator with Hussain.  The indictment, filed in San Francisco federal court, also names 46-year-old Stephen Keith Chamberlain, who was Autonomy’s vice president for finance, as a defendant. Lynch and Hussain also face a $5.1 billion civil case filed by HP in London.  Autonomy was the U.K.’s second-largest software business at the time.

Lynch used false and misleading statements from 2009, 2010 and early 2011 “to make Autonomy more attractive to a potential purchaser like HP,” according to the indictment, which says Lynch made $815 million when HP acquired his Autonomy shares.

Lynch’s lawyers called the indictment a travesty, saying it shouldn’t have been brought in the U.S. as it “targets a British citizen with rehashed allegations about a British company regarding events that occurred in Britain a decade ago.” They said the U.S. is making Lynch a “scapegoat” for HP’s “long history of failed acquisitions.”  But, Hewlett Packard Enterprise Co. (which was formed in the breakup of HP’s corporate computing divisions from its printer and PC business in 2015) praised the indictment.  “HPE believes that the facts uncovered during the course of this matter will further demonstrate the harm that was caused by Dr. Lynch, Mr. Chamberlain, Mr. Hussain and others to HP,” spokesman Emmanuel Fyle said in an email.

The charges were filed as lawyers representing Invoke Capital, a London-based venture capital firm founded by Lynch, are resisting a court order requiring Hussain to disclose details about his financial dealings with Lynch that prosecutors said raise concerns about “potential hush money.” Hussain, whose sentencing date was postponed, was required to disclose his stake, with Lynch, in Invoke and startup company Darktrace Ltd.

The government has argued that Lynch’s reassembling of his Autonomy inner circle at the new firm, including Hussain, isn’t illegal by itself but may have created financial relationships that prevented some of those people from coming forward as witnesses.

It certainly appears that the fallout from this 2011 acquisition will continue for some time to come.

So, what do you think?  Will we see an eDiscovery deal like that again?  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.

Here’s a Webcast to Learn about Important eDiscovery Developments for 2018: eDiscovery Webcasts

I know it seems like we just conducted a webcast (we did, two days ago), but we already have another one coming up!  2018 has been a very busy and significant year from an eDiscovery standpoint. This year has had everything from new data privacy laws here and in Europe to the use of Internet of Things (IoT) devices in discovery to important trends regarding the use (or non-use) of Technology Assisted Review (TAR) to a landmark SCOTUS case regarding accessing cell phone location data without a warrant.  Here’s a webcast that will discuss what do you need to know about these and other important 2018 events and how they impact your eDiscovery efforts.

Wednesday, December 12th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast 2018 eDiscovery Year in Review. In this one-hour webcast that’s CLE-approved in selected states, we will discuss key events and trends in 2018, what those events and trends mean to your discovery practices and provide our predictions for 2019. Topics include:

  • Technology Competence Trends and Developments
  • CLOUD Act and the Microsoft Ireland Case
  • General Data Protection Regulation (GDPR) and California Data Privacy Law
  • Data Privacy and Cybersecurity Trends and Challenges
  • SCOTUS Ruling in Carpenter v. US
  • Technology Assisted Review (TAR) Trends
  • Internet of Things (IoT) Devices as Sources of ESI
  • Business and Investment Trends within eDiscovery
  • Form of Production Trends and Disputes
  • New Resources for eDiscovery Best Practices

As always, I’ll be presenting the webcast, along with Tom O’Connor.  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).  If you want to learn how key events and trends in 2018 can affect your eDiscovery practice, this webcast is for you!

So, what do you think?  Were you busy this year and have FOMO (fear of missing out) on important info for 2018?  If so, please join us!  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.

Court Orders Defendants to Resubmit Production of “Inferior” Quality Documents: eDiscovery Case Law

In Dunne v. Resource Converting, LLC et al., No. 4:16 CV 1351 DDN (E.D. Mo. Oct. 30, 2018), Missouri Magistrate Judge David D. Nocel granted the plaintiff’s motion to compel and to enforce, ordering the defendants to “resubmit to plaintiff the subject low-quality documents in a non-blurry, legible form digitally accessible to plaintiff, and with the same bates-stamp numbers as the original production”.  Judge Nocel also ordered the defendants to pay plaintiff’s attorneys’ fees and expenses associated with his motion to compel, but decided that the plaintiff’s request for an independent forensic expert to preside over the technical discovery requests and responses was not warranted at this time.

Case Background

In this dispute, this Court issued an order in November 2017 granting plaintiff’s motion to compel the production of discovery documents post-dating August 21, 2015.  The plaintiff alleged that counsel for the defendants Resource Converting, LLC, Tim Danley, and Rick Kersey (“the RCI defendants”) improperly advised the RCI defendants not to search for such documents; subsequently, the Court set a compliance deadline requiring the RCI defendants to respond by December 6, 2017 and the RCI defendants then produced 24,196 pages of documents on that date.

Nonetheless, the plaintiff filed a motion, arguing that the RCI defendants had still not complied with this Court’s order, by: (1) failing to adequately search for and produce key documents, or in the alternative by deliberately removing them; (2) deliberately producing documents of an inferior quality, such that some of them are effectively illegible; (3) artificially inflating the number of documents produced and the cost to plaintiff incurred in reviewing them by producing the exact same documents multiple times; and (4) “providing vague supplemental responses to [plaintiff’s] specific requests that simply tell [plaintiff] to go fish in 24,000 pages of documents.”. The plaintiff provided unproduced email correspondence between a non-party and the RCI defendants to substantiate claim #1 above and also argued that the RCI defendants withheld insurance agreements applicable to the litigation, correspondence with their insurers, and materials related to changes to its website.  In response, the RCI defendants described the plaintiff’s motion as a “scorched-earth discovery battle” with “patently false” allegations.

Judge’s Ruling

With regard to the absence of key documents, Judge Nocel stated: “Plaintiff requests that the Court appoint an independent forensic expert to preside over the technical discovery requests and responses, as authorized by Federal Rule of Evidence 706. The parties have had several opportunities for discovery in several venues and from parties and nonparties alike, and, considering the proportionality of the Federal Rules of Civil Procedure to the needs of the case, the Court is not convinced that an independent forensic expert is warranted at this time…The RCI defendants are still obligated to supplement their production with any documents that are responsive to plaintiff’s requests, id. at (e), and they must disclose any relevant insurance agreements.”

As for the claim of inferior document quality, Judge Nocel did agree with the plaintiff that the “files were heavily pixelated to an extent that, to the Court’s perception, made some files difficult to read and others effectively illegible”.  But, he also indicated that the RCI defendants did produce the original native documents “in color, high-quality form”, “in the form of .mbox files”, but that “the .mbox file-type is not compatible with commonly-used document-review programs” and that those native files “are not bates-stamped, and so they do not correspond to the files for which plaintiff’s counsel has already spent hours reviewing and notating”.  As a result, Judge Nocel ordered the defendants to “resubmit to plaintiff the subject low-quality documents in a non-blurry, legible form digitally accessible to plaintiff, and with the same bates-stamp numbers as the original production” and also ordered the defendants to pay plaintiff’s attorneys’ fees and expenses associated with his motion to compel.

So, what do you think?  Should the defendants have had to resubmit the production?  And, should the Court have granted appointment of an independent forensic expert?  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.

Today, You Can Help The “Luddite” Lawyer Learn to Embrace Technology: eDiscovery Webcasts

Even if that “Luddite” lawyer is you… :o)

Technology Assisted Review (TAR) has been court approved for nearly seven years now and other technologies and approaches have been proven to save time and money while even improving quality within the discovery process. Yet, many lawyers still have yet to embrace these new technologies and approaches. Why, and what needs to happen to change things?  Today’s webcast will take a look at what needs to happen to help the “Luddite” legal professional learn to embrace technology.

Today at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast The “Luddite” Lawyer: Will Lawyers Ever Embrace Technology?. In this one-hour webcast that’s CLE-approved in selected states, we will discuss a lawyer’s ethical duty to understand technology, how to address today’s challenges and embrace approaches for addressing those technologies, pertinent case law regarding the use of technology and resources for more information. Topics include:

  • Ethical Duties and Rules for Understanding Technology
  • Addressing Discovery of Various Sources of ESI Data
  • Understanding the Goals for Retrieving Responsive ESI
  • Considerations and Challenges for Using Technology Assisted Review
  • Considerations for Form of Production
  • Key Case Law Related to Technology Challenges
  • Resources for Expanding Your Technical Expertise
  • Recommendations for Becoming Technology Competent
  • Resources for More Information

As always, I’ll be presenting the webcast, along with Tom O’Connor.  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).  If you want to learn how to become competent working with the latest technologies, this webcast is for you!

So, what do you think?  Are you a technology “Luddite” or do you work with one?  If so, please join us!  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.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, Part Five

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, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published on November 16, part two was published last Monday, part three was published last Tuesday and part four was published yesterday.  Here’s the fifth and final part.

What can we do to Help Lawyers become Technologically Proficient?

What is the solution moving forward?? Well as I said above, “read the rule book shankapotomous.”. Get educated. Go to conferences and CLE sessions. Help promote more education.  Once again Craig Ball is more eloquent than I am when he ventures “Evidence is digital.  That’s not changing.  Embrace the inevitable.  We don’t need conferences to mourn the passing of paper.  We need Manhattan Projects to educate lawyers about ESI.”

And, so we return to a recurrent theme among ED commentators. We need not just better but far more education.  That is the best way to reduce ED costs.

But I’ll also offer my 10 Tips for Working with eDiscovery. This may be a good checklist for you in moving forward.

  1. Read the Rules: The Federal Rules of Civil Procedure lay out the framework for your obligations in handling e-discovery and differ in several aspects from traditional discovery rules. In addition, your state may have its own ED rules which differ from the FRCP.  You need to understand the procedural requirements for the various jurisdictions where you may have litigation arise so start here.
  2. Read the Decisions: Federal judges, notably Facciola, Grimm and Waxse, have spent considerable time issuing opinions which give details on interpreting and implementing the Federal rules. Reading these decisions is essential to understanding how to handle eDiscovery so start with a good book on ED basic then read a good case update blog, preferably one which has an RSS feed.
  3. Know the Terms: eDiscovery isn’t rocket science but it is technical in nature. But you learned the Rule against Perpetuities in law school so believe me you can handle this.  Judges do not want to waste time settling arguments between attorneys who don’t know the difference between a PST and an MSG file so get a good ED glossary (the Sedona Conference has one) and make sure you know all the terms.
  4. Know Where Your Data Is: You can’t find it to identify, collect and preserve if you don’t know where it is. So, get with your client’s IT folks and make a map of their network with locations, custodians, OS and applications lists and descriptions of data amounts.  Why? Because a map shows us how to go places that we haven’t been before without getting lost.  Plus, they are incredibly useful in court to show a judge the complexity of your data collection problem.
  5. Talk to The IT Department: They know how to make the map. You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.
  6. Talk to The Records Management People: Records Management is the flip side of the eDiscovery coin and your clients RM staff can help avoid the need to waste time and money restoring backup tapes that don’t contain relevant data. Wait, your client DOES have a Records Management Policy, right?
  7. Make a Records Management Policy: Good records management will save time and money when clients have to collect data and will help avoid sanctions when you have to explain to a judge why some documents are no longer available because they were deleted in the ordinary course of business by the records retention policy.
  8. Make A Litigation Hold Policy: Every client needs to have a clear and concise litigation hold policy to deal with procedures for data retention when the litigation hold letter arrives. And it will.
  9. Enforce the Litigation Hold Policy: Repeat after me: “repeatable, defensible process”. Don’t put the lit hold policy in a manual that just goes on the shelf. This is the biggest mistake you can make and more cases are lost here than in any other phase of electronic discovery. Your opponent marks up a motion for sanctions, you say “but Your Honor, we have a lit hold policy” and the judge says “show me how you implemented it in this case.” And you can’t.
  10. Meet with Your Client’s Inside Counsel: Why? To discuss all of the above. They will need to understand, and be able to explain, all of it in order to work with you. And you need to be sure they can do exactly that.

Finally. let me leave you with a word of caution. As much as we talk about technology and its importance, keep in mind that technical understanding is the underpinning of legal competence.  eDiscovery is still discovery.

The ultimate solution to the eDiscovery quandary is more than just knowing the rules, avoiding e-jargon and understanding the technology. The fact is that eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage. In my estimation, true technical competence means knowing the technological underpinnings of each of those steps and then understanding the best process for making them all work together.

It is the process not the technology that is the ultimate key. As my colleague John Martin has said for years, “it’s the archer not the arrow”.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  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.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, 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, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published on November 16, part two was published last Monday and part three was published last Tuesday.  Here’s the fourth part.

What are Some Good Resources to Help Lawyers Improve their Technology Expertise?

Craig Ball once made a great point in responding to a post of mine about educating lawyers when he said “We not only need to persuade lawyers to take the plunge, we need to insure there’s a pool for them to jump into. By that I mean, there just isn’t a clear path to accessible resources for the lawyer who wants to get a handle on the technology. Do they go to a community night course on computers? Pursue online education? Wait for the next Georgetown Academy?  I don’t think I’ve even seen a really good reading list on the topic (and much as I’d like for it to be, consuming the offerings on my web site isn’t enough).”

Browning Marean of DLA Piper replied that since there is no general technology educational resource for attorneys and it is unlikely that there ever will be, first because the field is constantly changing and no clear standards have yet to emerge and second because of the reluctance of traditional legal educational institutions to undertake any form of “vocational” training as we discussed above, he felt the only clear option is a constant monitoring of ED websites. Among his favorites were the K&L Gates case law site, Ralph Losey’s e-Discovery Team® site and the EDRM web site.  To that list I’d add eDiscovery Daily, the Association of Certified eDiscovery Specialists (ACEDS) blog and of course Craig Ball’s Ball in your court blog.

Beyond that, I’d also suggest the following books which are worth consulting as well:

A Process of Illumination: The Practical Guide To Electronic Discovery, Mary Mack (available on Amazon here)

The Discovery Revolution, George L. Paul and Bruce H. Nearon, ABA publication (available on Amazon here)

e-Discovery for Everyone, Ralph Losey (available on Amazon here)

Electronic Discovery and Evidence, Fourth Edition, Michael Arkfeld (available for purchase at Law Partner Publishing/LexisNexis here)

Managing E-Discovery and ESI: From Pre-Litigation to Trial 1st Edition, Michael D. Berman, Courtney Ingraffia Barton, Paul W. Grimm, ABA Press (available on Amazon here)

Project Management in Electronic Discovery: An Introduction to Core Principles of Legal Project Management and Leadership In eDiscovery, Michael Quartararo (available on Amazon here)

Electronic Discovery and Digital Evidence in a Nutshell, Shira Scheindlin & The Sedona Conference® (available on Amazon here)

Electronic Discovery for Small Cases: Managing Digital Evidence and ESI, Bruce Olson & Tom O’Connor, ABA publication (available on Amazon here)

We’ll publish the final part, Part 5 – What can we do to Help Lawyers become Technologically Proficient? – tomorrow.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  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.

Will Lawyers Ever Embrace Technology?: eDiscovery Best Practices, 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, eDiscovery Project Management from Both Sides, which we covered as part of a webcast on October 31.  Now, Tom has written another terrific overview regarding the state of lawyer adoption of technology titled Will Lawyers Ever Embrace Technology? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was published last Friday and part two was published yesterday.  Here’s the third part.

How Can We Change the Situation?

To begin to answer that question, let’s take a look at the ethical obligation that lawyers have to be technically competent and the state of technology education for lawyers today.

a. Technical Competence

First let’s acknowledge that we have an ethical obligation to be technically competent. Perhaps we always did. As one of my good friends in the Louisiana Bar Association pointed out to me when I asked why the LSBA hadn’t produced a specific rule for such a duty, “well we always just assumed it was just part of the general duty of competence. We didn’t issue that sort of rule when the telephone came out, or the fax machine, or the telegraph or the car. We figured the benefits of technology were both necessary AND apparent.”

And certainly at least one judge has felt this way for quite some time. In Mancia v. Mayflower Textile Services Co., Judge Paul Grimm used a detailed examination of Rule 26(g), Fed. R. Civ. P., which requires every discovery disclosure, request, response or objection be signed by an attorney of record. The signature “certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry,” the request is reasonable and the disclosure is complete and correct. In Judge Grimm’s opinion, he calls Rule 26(g) is “the least understood or followed of the discovery rules.” and he clearly states that much of the blame for high priced e-discovery costs lies here. Not following a clearly defined ethical duty. Or as I once wrote, hey shankapotamous, read the rule book.

But even so, in 2012 the ABA issued a model rule on the issue in its Model Rules of Professional Conduct and, so far, 32 states have adopted a similar rule. You can read more about that on Bob Ambrogi’s LawSites blog site here.

b. Education

But what do we do to gain technical competence. How do we become what Craig Ball has called Homo Electronicus?

Certainly, we can do so, right? We’re lawyers. We’re smart. We can do things.

Well, not if law schools have anything to say about it. Browning Marean and I spent years trying to begin a law school curriculum that included computer education with no success. Why? Because legal education still has its own old paradigm. The one that working with a keyboard is not “professional” and is best done by support staff and hourly employees. You know, secretary types.

We were actually told by the dean of one leading law school when we spoke to him about a legal technology training initiative, “We train architects, not carpenters.”

Great attitude Dean. You might want to tell those architects that they don’t have to use slide rules any longer.

And that’s the second part of the problem. Even with schools that have begrudgingly started eDiscovery courses. (And the number of those being taught by full time faculty as part of the standard curriculum can be counted on … ok, two hands) But the threshold question here is not knowledge of eDiscovery technology, it’s the lack of the most basic computer technical knowledge.

Because where many people commenting on this subject see it as a parable for why we should be using concept searching in eDiscovery matters I see it just another example of attorneys caught in the old paradigm of working with paper documents and being totally unaware of the most basic technical concepts. Law students need a good case book on eDiscovery, sure but first they need a discussion about technology in general. Some commentators say this isn’t really necessary because the new generation is computer savvy. Well maybe.  If by tech savvy you mean they can check email and do legal research. But even if they are tech savvy, they are still the new generation. What about the NOW generation?

What can we do about it?  Judge Facciola once suggested some form of national technology competency standards. Seem like fanciful speculation? Well, remember that all bankruptcy practitioners must take a 2-hour course in the ECF system before they can file documents because electronic filing of documents is required in all bankruptcy courts. Why then could courts not institute a similar requirement before they allow an attorney to file a motion involving eDiscovery?

Some Judges have indeed adopted local rules to that effect but the lack of action by law schools and bar associations is the real failing here. Heck, if an eDiscovery question started appearing on bar exams, you be darn sure law schools would start teaching it.

We’ll publish Part 4 – What are Some Good Resources to Help Lawyers Improve their Technology Expertise? – next Monday.

So, what do you think?  Do you think that lawyers are where they need to be in becoming technologically proficient?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Happy Thanksgiving from CloudNine!

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.