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Electronic Discovery

Thursday’s ILTACON 2016 Sessions: eDiscovery Trends

As noted yesterday, Monday and Tuesday, the International Legal Technology Association (ILTA) annual educational conference of 2016 (otherwise known as ILTACON) is happening this week and eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  This is the last day to check out the show at the Gaylord National Resort & Convention Center if you’re in the Washington/Baltimore area with a number of sessions available and over 195(!) exhibitors providing information on their products and services.

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

9:00 AM – 10:00 AM:

The Intersection Between Records Information Management & Info Governance: While the scope of information governance is broad (business units/practice areas, legal, IT, privacy and security), it is nearly impossible to have an effective information governance program without strong records and information management (RIM). Join us for a discussion on the scope of information governance, the key contributions to expect from the different parts of the law firm and how a robust records management program supports the overall goals of information governance.

Speakers include: Tera Ladner, Director, Information Governance Aflac, Inc.

11:00 AM – 12:00 PM:

How Future Technology Will Affect Litigation Support: A panel of e-discovery industry leaders and visionaries will discuss what future technologies will have an effect on litigation support and e-discovery. Find out what these leaders think will happen in the next few years and what you need to be ready for with the coming changes in technology.

Speakers include: Stephen Dooley, Assistant Director of Electronic Discovery and Litigation Support Sullivan & Cromwell LLP; Craig Ball, ESI Special Master and Attorney Craig D. Ball, P.C.; Jay Leib, Founder and CEO NexLP; Sheila Mackay, Vice President Xerox Legal Business Services; Dave Copps, Founder & CEO Brainspace; Brendan Hall, Vice President, Business Development Xerox Legal Business Services.

1:30 PM – 2:30 PM:

A Road Map To Gathering and Analyzing Client Discovery Data Across Matters, 1:30 PM – 2:30 PM ET: Business intelligence was introduced to the corporate sector 20 years ago, and it is now being incorporated into legal technology. Corporations have used this time to gather and analyze data. They have built data warehouses to link sales data to weather data to bolster on-call staff for the drive-thru window when rain is forecast. In the legal profession, we are starting to use business intelligence to analyze contractor review speeds and related work product. That’s just the beginning! A panel will explore how legal departments are using business intelligence across matters to reuse work product such as privilege calls, relevance and specific coding calls — all on the same documents and previously reviewed!

Speakers include: Jon Canty, Manager Sandline Discovery LLC; Tom O’Connor, Senior EDiscovery Consultant Advanced Discovery; Richard Dilgren, National Director, Data Science & Strategy FRONTEO; Kate Head, Client Executive Advanced Discovery.

So, what do you think?  Did you attend ILTACON this year?  What did you think of the conference?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Wednesday’s ILTACON 2016 Sessions: eDiscovery Trends

As noted yesterday and Monday, the International Legal Technology Association (ILTA) annual educational conference of 2016 (otherwise known as ILTACON) is happening this week and eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show at the Gaylord National Resort & Convention Center if you’re in the Washington/Baltimore area with a number of sessions available and over 195(!) exhibitors providing information on their products and services.

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

9:00 AM – 10:00 AM:

Refining Your E-Discovery Reporting: With roughly 10 billion different metrics available around the e-discovery process, how do we cut through the noise and produce relevant reporting?  During this workshop, we’ll walk through a realistic scenario and ask the audience to participate in a choose-your-own adventure style interactive experience and then foster discussion amongst our panelists as to what they would choose at each decision point and why.  This will be a collaborative learning experience that will teach you to think through a situation and choose the right reporting at the correct time to make the best legal and business decisions possible.

Speakers include: Scott M. Cohen, Director of E-Discovery Support Services Winston & Strawn LLP; Daniel S. Meyers, President, Consulting & Information Governance Transperfect Legal Solutions; Scott B Reents, Senior Attorney Cleary Gottlieb Steen & Hamilton LLP; David B Smith, Chief, eDiscovery Planning & Logistics U.S. Securities & Exchange Commission; James Sherer, Counsel Baker & Hostetler LLP.

1:30 PM – 2:30 PM:

When Project Management and E-Discovery Management Collide: When project management collides with litigation support management, the balancing act of dividing roles and resources can be complex. When does it make sense to adopt legal project management (LPM) tools or engage with legal project managers? Do these efforts add value to the client? We’ll explore the pros and cons of LPM and give practical suggestions all law firms should consider.

Speakers include: Florinda Baldridge, Global Director of Practice Support Norton Rose Fulbright; Mary Pat Poteet, Managing Consultant; Lidia Lumovic, Global Project Manager Baker & McKenzie; David Bryant Isbell, Director, Global Practice Support Baker & McKenzie; Rebecca Benavides, Director, Legal Project Management Norton Rose Fulbright.

3:30 PM – 4:30 PM:

The Future of Law Firms in the E-Discovery Space: A Client’s Perspective: With the rise of legal service providers and more clients taking work in-house, the value chain in the e-discovery world has been somewhat disrupted. To combat this, we need to delve into clients’ long-term strategies for managing electronic discovery. Who is responsible for various tasks today? What is the plan for the future? How might these strategies effect how we work and how we’re staffed? How are firms and vendors responding to the new models? Let’s get the client’s perspective!

Speakers include: Eric Lieber, Director of Legal Operations & Litigation Support Toyota Motor Sales; Joan Washburn, Director of Litigation and eDiscovery Services Holland & Knight LLP; Thomas Biegacki, Business Development Executive Integreon; EJ Bastien, Lead eDiscovery Program Manager Microsoft Corporation.

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

Today is the last day to participate in the quarterly eDiscovery Business Confidence Survey being conducted by Complex Discovery and ACEDS!  It’s a simple nine question survey that literally takes about a minute to complete.  The more respondents there are, the more useful the results will be!  Click here to take the survey yourself.  Don’t forget!

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.

Tuesday’s ILTACON 2016 Sessions: eDiscovery Trends

As noted yesterday, the International Legal Technology Association (ILTA) annual educational conference of 2016 (otherwise known as ILTACON) is happening this week and eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show at the Gaylord National Resort & Convention Center if you’re in the Washington/Baltimore area with a number of sessions available and over 195(!) exhibitors providing information on their products and services.

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

8:30 AM – 10:00 AM:

Understanding Client Systems for Better Collaboration During Litigation: A panel of in-house e-discovery leaders and outside technology consultants will share challenges they have faced when preserving and collecting data from corporate technology systems during litigation. Learn what in-house leaders wish their outside counsel knew about the technology their companies use and gain a better understanding of common technology systems that need to be considered during litigation data preservation and collection.

Speakers include: Glenn O’Brien, E-Discovery Manager Liberty Mutual Insurance Company; John Thompson, Sr. Manager – Litigation Support/Legal Operations Sanofi; John Goff, Manager of Information & Electronic Records PulteGroup; Mike Alsup, Chairman Gimmal LLC; Johnny Lee, Principal – Forensic Advisory Services.

11:00 AM – 12:30 PM:

Preparing an ROI for eDiscovery Services: A Litigation Technology Operations Workshop: In this hands-on, interactive workshop, participants will create a simulated return on investment (ROI) analysis for e-discovery services. This collaborative exercise will highlight several different approaches to a project and expose clues to reaching your firm’s ROI goals.

Speakers include: Mary Pat Poteet, Managing Consultant; Sheila Mackay, Vice President Xerox Legal Business Services; Bret Libigs, Enterprise Accounts Relativity by kCura.

1:30 PM – 2:30 PM:

The Lean, Mean E-Discovery Machine: Project Management in Litigation Support: Everyone talks about project management (PM), but do litigation and practice support technologists truly know why and how it is beneficial in e-discovery? Do specific deliverables and quality check points matter, or is project management an ad hoc exercise? Three high-level e-discovery strategists will examine aspects of the business side of e-discovery, such as estimating and budgeting, and offer insight into how to measure your PM maturity, the success of your e-discovery projects, and the specific processes and workflows that have yielded successful outcomes. Learn what works — and what doesn’t — when implementing a project management program while striving to manage change in e-discovery.

Speakers include: Michael Quartararo, Director of Litigation Support Services Stroock & Stroock & Lavan LLP; Dera Jardine Nevin, Director of eDiscovery Proskauer Rose LLP; Daryl Shetterly, Director, DRS Operations Orrick, Herrington & Sutcliffe LLP.

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

Time is running out to participate in the quarterly eDiscovery Business Confidence Survey being conducted by Complex Discovery and ACEDS!  It’s a simple nine question survey that literally takes about a minute to complete.  The more respondents there are, the more useful the results will be!  Click here to take the survey yourself.  Deadline is August 31.  Don’t forget!

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.

Welcome to ILTACON 2016: eDiscovery Trends

The International Legal Technology Association (ILTA) annual educational conference of 2016 (known as ILTACON) kicked off yesterday with several networking events, and begins in earnest today with the first day of sessions.  eDiscovery Daily will be reporting this week about the latest eDiscovery trends being discussed at the show.  Over the next four days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.

If you’re in the Washington/Baltimore area, come check out the show at the Gaylord National Resort & Convention Center – there are a number of sessions available and over 195(!) exhibitors providing information on their products and services.  Perform a “find” on today’s ILTACON conference schedule for “discovery”, “litigation support” or “information governance” and you’ll get at least 4 sessions with hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

11:00 AM – 12:00 PM:

Federal Rules of Civil Procedure Amendments and Their Effect on Litigation Support Strategies: Significant amendments to the Federal Rules of Civil Procedure became effective on December 1, 2015. How have courts interpreted and applied these new changes? Do the amendments provide the basis for corporations to change their approaches to the preservation, collection, review and production of electronically stored information? If so, have they actually changed? What opportunities do the amended rules provide for litigation support departments to educate and consult with clients and drive their e-discovery strategies? Join a panel of experts to learn more about these recent developments.

Speakers include: Eric Lieber, Director of Legal Operations & Litigation Support Toyota Motor Sales; Honorable Andrew J Peck, US Magistrate Judge of New York and Rodney Holaday, Partner Vorys, Sater, Seymour and Pease LLP.

Information Governance: Regulating Data Privacy Within and Beyond Borders: What are the recent changes to the EU data protection rules, and how do they affect your firm? Large and small, all firms need to know what the changes mean for their business and their clients.

Speakers include: Johan T. Widjaja, Assistant Director Information Governance Morgan, Lewis & Bockius, L.L.P.; John Christian Montana, Principal Montana & Associates; Chris Gallagher, Senior Vice President, National Discovery Solutions & LPO Services Special Counsel.

2:30 PM – 3:30 PM:

Information Governance Best Practices: Building More Than a Great Wall (Corporate Legal Day): ILTA corporate law department members have identified the top aspects of having an integrated information governance (IG) program. The program should value business information as company assets; employ physical, technical and administrative safeguards to protect and manage information assets; educate and train personnel; and use metrics to measure and improve performance. Why do so many organizations not have an IG program? It all comes down to perceived cost, and we’re here to squelch the rumors.

Registration is exclusive to ILTA law department and legal operations staff. You must register for either the full ILTACON 2016 event or the ILTACON 2016 Monday Day Pass AND the free Corporate Legal Day.

Speakers include: Kevin Behan, Director, eDiscovery Health Care Service Corporation; Theodore Spurlock, Technology Manager PNC Bank Legal Department; Mike Ferrara, Senior Manager Duff & Phelps, LLC; Ronke Ekwensi, VP Information Mgmt & Policy; Information Governance; Data Privacy; E-Discovery Baxalta Corporation.

4:00 PM – 5:00 PM ET:

Security and Information Governance: Together in Perfect Harmony, 4:00 PM – 5:00 PM ET: Information governance and security shouldn’t be conflicting goals. You can satisfy the goals of your clients, general counsel, knowledge managers and technologists by aligning your information governance and security policies so they complement one another and advance your firm’s strategic goals. Security policies can reinforce information governance imperatives, and good information governance should be part of your security assessments. Join us as we examine the benefits of harmonizing these two disciplines, best practices and how to identify opportunities within your organization.

Speakers include: James A. Merrifield, Records & Information Governance Manager Robinson & Cole LLP; Leigh Isaacs, Director, Records & Information Governance White & Case LLP; Terry Coan, Senior Director HBR Consulting LLC.

And, of course, you don’t want to miss the Exhibit Hall Opening Reception from 7:00 PM – 9:00 PM ET, where booths will be decorated as different countries. As always, this is a great opportunity to visit with exhibitors and tour the Exhibit Hall in a relaxed setting and hors d’oeuvres and beverages will be served.

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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.

Can Pokémon GO Right Into Your Organization’s Data?: eDiscovery Trends

Unless you’ve been living under a rock for the past month, you’ve undoubtedly heard about Pokémon GO, the new location-based augmented reality smartphone game, which has been downloaded by more than 130 million people worldwide in a little over a month.  Believe me, my kids have clamored for it.  But, if you have it installed on a BYOD device for the workplace, could you be putting your organization’s data at risk?

That’s a question raised by this article in Inside Counsel by Amanda Ciccatelli (Pokémon GO exposes the risks of BYOD policies).  In the article, Ciccatelli cites a recent blog post on Data Security Law Blog (of Patterson Belknap Webb & Tyler LLP) which notes that the app poses issues for businesses with bring-your-own-device (BYOD) policies, where employees use their own devices for work purposes.  Those policies, while enhancing employee productivity and satisfaction, can open up potential security risks if not structured – and followed – correctly.

“Because Pokemon GO has been so enormously popular – reportedly the most downloaded mobile game ever, with more than 25 million users playing each day – the security concerns of the game have received wide publicity,” Michael Whitener with VLP Law Group told Inside Counsel in a recent interview.

As a result, some security organizations, including the International Association of IT Asset Managers (IAITAM), have called on corporations to ban the use of Pokémon GO. In fact, IAITAM has described the game as “a nightmare for companies that want to keep their email and cloud-based information secure.”

Whenever a third-party mobile app is downloaded, there are two potential data security concerns, according to Whitener. First, the mobile app customer may be allowing the mobile app vendor access to certain of the customer’s personal information, which the customer may be agreeing to via the vendor’s terms of use.

Second, the mobile app, due to security flaws, may provide a handy backdoor for hackers into the customer’s mobile network – not just on the customer’s phone, but potentially to the servers of the customer’s employer too.

The original terms of use of Pokémon GO allowed the game’s creator, Niantic Labs, to access the entire Google profile of the user, including their history, past searches and anything else associated with their Google login ID.  Niantic later corrected this, but it’s unclear how Niantic may have used the information collected and whether it’s been destroyed.  And, of course, imitation Pokémon GO applications have sprung up with malware that could allow hackers to access users’ personal correspondence and other information or even remotely gain full control of the victim’s phone.

Ciccatelli’s article notes that “a realistic BYOD policy will address such issues as employee obligations to implement device security software, employee expectations of privacy when using devices for business purposes, prohibitions on device use by friends and family, and permissible and impermissible apps”.  In other words, sorry Kiley and Carter, Pokémon GO won’t be coming to my iPhone for the foreseeable future.

So, what do you think?  Does your organization have a BYOD policy that regulates the installation of third-party apps?  Please share any comments you might have or if you’d like to know more about a particular topic.

Time is running out to participate in the quarterly eDiscovery Business Confidence Survey being conducted by Complex Discovery and ACEDS!  It’s a simple nine question survey that literally takes about a minute to complete.  The more respondents there are, the more useful the results will be!  Click here to take the survey yourself.  Deadline is August 31.  Don’t forget!

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.

MAJOR Announcement from EDRM!: eDiscovery Trends

After over 11 years establishing itself as the leading standards organization for the eDiscovery market, EDRM has been acquired!

As they announced in their press release here yesterday, Duke University School of Law has acquired EDRM.  The release stated: “The move advances the missions of both organizations. For EDRM, Duke provides an institutional home with a large and respected organization, ensuring the continued vitality of EDRM. Duke Law and its Center for Judicial Studies gain resources that expand the center’s involvement in electronic discovery and information governance in support of its mission to promote better understanding of the judicial process and to generate ideas for improving the administration of justice.”

“This agreement sets the stage for an expansion of EDRM efforts in industry education and standards,” stated Dean David F. Levi in the press release. “E-discovery is a major component of today’s litigation practice, and EDRM provides valuable resources to educate not only experienced practitioners, but also law students and new lawyers about practical discovery problems they will encounter. This acquisition is also an important step in Duke’s continued efforts to bring together the judiciary, legal practitioners, educators and government organizations to advance the understanding of the judicial process and improve the complex processes in the administration of justice.”

“We are proud of the significant impact EDRM has made on education and practices in electronic discovery and information governance since 2005,” stated George Socha, co-founder of EDRM. “The achievements of EDRM are a direct result of the hard work of many legal and technology practitioners whose efforts and expertise have improved e-discovery and information governance practices and ultimately the judicial process. Tom Gelbmann and I extend to each of them our sincere appreciation, and we encourage continued participation in this exciting next phase with Duke Law.”

Socha will remain with EDRM after the acquisition. EDRM co-founder Gelbmann plans to work with Duke Law for the transition of EDRM programs and will retire later this year. “We are fortunate,” stated Levi, “that Tom Hnatowski, former chief of the Magistrate Judges Division of the Administrative Office of the United States Courts, agreed to join the Judicial Studies Center to manage day-to-day operations running EDRM. Tom brings a wealth of experience and a unique perspective to the improvement of the administration of justice with his many years working with U.S. magistrate judges, the front-line judicial officers who handle discovery issues on a daily basis.”

An email providing details was sent to all EDRM members on Tuesday evening in advance of Wednesday’s public announcement.  In a follow-up response to queries from EDRM members, Socha noted that the “good work” being performed on existing projects “will continue under Duke Law.  Not only will it continue, but we hope to be able to expand it.”  And, he also indicated that “EDRM under Duke will continue to be open to existing members’ contributions”, which “always have been at the core of what has made EDRM successful – indeed, of interest to anyone.”

Hopefully, it sounds as though the acquisition will enable EDRM to continue to provide useful standards models and mechanisms to the industry, even though the day-to-day leadership will change.  As an EDRM Education partner, eDiscovery Daily will certainly continue to provide eDiscovery news and analysis as we always have and will certainly make our readers aware of new deliverables from the EDRM community.

From a personal standpoint, I’m certainly glad to see that George Socha will remain with EDRM, even as he continues in his new role at BDO.  I’m also certainly sad to see Tom Gelbmann retire soon as I have thoroughly enjoyed working with him as a colleague within EDRM through the years – he is truly as nice a guy as there is and I will miss working with him.  Nonetheless, it certainly sounds as though George and Tom found a good new home for the organization that they created 11 years ago – one that should enable it to continue to thrive for years to come.

So, what do you think?  Will the acquisition of EDRM be a good thing for the eDiscovery industry?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

Considering All of the Considered TAR Responses: eDiscovery Trends

Our webinar panel discussion conducted by ACEDS a couple of weeks ago has generated some interesting discussion and debate over the past week or so about the content of the webinar, what it should have covered and what it was intended to cover.

The webinar panel discussion, titled How Automation is Revolutionizing eDiscovery was sponsored by CloudNine and presented on August 10 (here is a link to last week’s blog post with an embedded video of the webinar).  Our panel discussion provided an overview of eDiscovery automation technologies and we took a hard look at the technology and definition of TAR and potential limitations associated with both.  Mary Mack, Executive Director of ACEDS moderated the discussion and I was one of the panelists, along with Bill Dimm, CEO of Hot Neuron and Bill Speros, Evidence Consulting Attorney with Speros & Associates, LLC.

On the next day, ACEDS published A Considered Response from Gordon Cormack, which was a letter from Gordon Cormack, Professor with the School of Computer Science at the University of Waterloo in Ontario, Canada who is an expert in the area of technology-assisted review in litigation and has co-authored several influential works with Maura Grossman, a fellow researcher at the University of Waterloo (and, before that, an attorney with Wachtell, Lipton, Rosen & Katz).  Cormack and Grossman authored the 2011 Richmond Journal of Law and Technology (JOLT) study (that I inaccurately referred to in the webinar as a “white paper” – sorry about that) titled Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, which was discussed to some extent during the webinar that both Cormack and Grossman attended.

In his letter, Dr. Cormack expressed several concerns about the content of the webinar, including their belief “that the webinar presented the false impression that we, and the courts, are resting on our laurels and that no legitimate empirical work has been done with respect to TAR.”  He provided links to several other works that have been authored by Cormack and Grossman that were not discussed during the webinar and also noted his opinion that the webinar lacked “any constructive suggestion as to how to proceed” (among other concerns he noted).

Then, last week, ACEDS also published responses from two of the presenters, Bill Speros (Reconsidering Dr. Cormack’s Considered Response) and Bill Dimm (ACEDS Commentary: Bill Dimm Responds to Gordon Cormack) where both “Bills” (Speros and Dimm) provided responses to the concerns that Dr. Cormack raised in his letter the previous week.

I feel that both Speros and Dimm made several good points in both clarifying the intended scope of the webinar and also in what we feel the webinar accomplished.  Dimm noted that “our goal was to deliver a large amount of information that is useful to a broad e-discovery audience within the confines of a 60-minute webinar” (of which about 40 minutes were devoted to TAR) and that we covered the JOLT report as extensively as we did (instead of other Cormack/Grossman works) “because it is the study that judicial opinions rely upon, and we’re not aware of any subsequent study comparing the quality (not merely the cost) of TAR results to those of human review.”

Speros identified several constructive suggestions that we felt the webinar provided, including “Clarifying the (general lack of) judicial acceptance of TAR”, “Differentiating alternative TAR techniques and technologies” and “Developing independent and valid TAR assessments”.  Speros also noted that “rather than attacking Dr. Cormack and his work, the webinar’s content spoke to the quality of the court’s interpretations [of the JOLT report] in a manner entirely consistent with thoughtful and professional analysis” – a position with which I agree wholeheartedly.

So, what is my response to Dr. Cormack’s letter?

As the other presenter in the webinar, I don’t have much to add to the responses provided by Speros and Dimm, except that they essentially reflect my own thoughts about the intent and accomplishments of the webinar.  Our goal was to challenge several industry-accepted assumptions about TAR and to take a look at the current state of acceptance of TAR, both judicially and within organizations contemplating the use of TAR.  And, I feel we accomplished that.

Nonetheless, I have tremendous respect, not just for my co-presenters, but also for Gordon Cormack and Maura Grossman and the numerous contributions that they have made to the industry through their research and various works (including the 2011 JOLT report).  I consider this to be a healthy discussion and debate among industry thought leaders and look forward to hopefully seeing that healthy discussion and debate continue.  I encourage you to view the webinar and read the commentaries by Cormack, Speros and Dimm and draw your own conclusions.

So, what do you think?  Do you have an opinion on the webinar or on the topic of TAR in general?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

It Took a While, But the Sedona Conference Has Finalized its Guide for “Possession, Custody, or Control” of ESI: eDiscovery Best Practices

A year ago in April (i.e. April 2015), The Sedona Conference® released a new public comment version of a guide designed to provide guidance to defining the phrase “possession, custody, or control” as it’s used in Federal Rules 34 and 45 (we covered it here).  Earlier this month, the final version of that guide was released.

As we noted then, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s possession, custody, or control.  But, the Rules are silent on what the phrase “possession, custody, or control” means and case law is inconsistent (across circuits and even within circuits at times).  And, determining whether ESI should be considered to be in a responding party’s “possession, custody, or control” has become more complex, with the growing popularity of technologies and trends such as social media and cloud computing.

So, The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, or Control was created to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (ESI) subject to Rule 34 and Rule 45 requests for production.  A secondary purpose of the Commentary is to advocate abolishing use of the common-law “practical ability test” for purposes of determining Rule 34 and Rule 45 “control” of ESI, which has led to “inequitable” situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI.

The final 103 page PDF guide includes the following actual principles (minimally changed from the public comment version).  They are:

  • Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
  • Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
  • Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
  • Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting, and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
  • Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to override conflicting state or federal privacy or other statutory obligations, including foreign data protection laws.
  • Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation), does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.

One change from the public comment version was to replace the word “trump” with “override”.  Hmmm, wonder why?  :o)

The remainder of the guide covers 1) the background that led to the new principles, including inconsistent interpretations of “possession, custody, or control” within the Rules, a deeper look at the “practical ability test” and effect of new technologies on the analysis and 2) a detailed look at each of the new principles with commentary.  They dropped the Appendix with case law where “possession, custody, or control” was at issue.

As usual, the Commentary is free and you can download it (both the Final and the Public Comment versions) here.

So, what do you think?  Will these new principles lead to a consistent application of “possession, custody, or control” within the courts?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. 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.

CloudNine Highlights Expanding eDiscovery Partnership with Complete Legal Services

Long-term Relationship Continues To Provide Kansas City Community With Nationally Recognized Legal Technology And Services

CloudNine, the eDiscovery Company (cloudnine.com) that empowers legal and business professionals with eDiscovery automation software and professional services that simplify litigation, investigations, and audits, today highlighted the evolution and growth of expanding partnership with Kansas City-based Complete Legal Services.

Initiated in 2014 with the objective of providing Kansas City law firms with immediate access to the best available eDiscovery technology and services, the partnership has contributed to CloudNine’s growth into a national legal technology leader and Complete Legal Services’ development into one of the region’s most proven and trusted litigation support companies. Today Complete Legal Services serves dozens of leading law firms and hundreds of eDiscovery professionals with a complete suite of litigation support and corporate investigative services that leverage CloudNine’s Simplified eDiscovery Automation platform.

“Our uncompromising commitment to helping clients solve eDiscovery challenges with the best combination of software, services and support, continually drives us to seek technology partnerships that help us deliver quality service with superior results,” shared Jeff Dreiling, co-founder of Complete Legal Services. “Through our long-term collaboration with CloudNine, we have been the beneficiaries of the evolution of their nationally recognized, fully integrated eDiscovery platform. Their technology has allowed us to increase our ability to help clients solve complex discovery challenges and the consistency of the partnership, based on a mutual loyalty to each other and our customers, has allowed us to expand our portfolio of professional services with full confidence in the underlying technology and supporting business relationship.”

“Choosing the right partner to provide services and support for legal discovery is one of the most important factors in achieving positive audit, investigation, and litigation outcomes,” highlighted Brad Jenkins, CEO of CloudNine. “Complete Legal Services has been that right partner to many Midwestern law firms and corporations for many years, and we are grateful to count them as one of our trusted long-term service partners. Their success has directly contributed to our growth and we look forward to their continued expansion.”

About CloudNine, The eDiscovery Company

Founded in 2002 and based in Houston, Texas, CloudNine is a technology company with deep expertise in the analysis, processing, and review of electronically stored information (ESI). Currently used by more than 50 of the top 250 Am Law firms as well as in many of the world’s leading corporations, CloudNine has been highlighted in reports and surveys by Gartner, 451 Research, Blue Hill Research, and Corporate Counsel. CloudNine also publishes the eDiscovery Daily Blog, a trusted source of information for the legal industry.

A leader in eDiscovery automation, you can learn more about CloudNine by calling us at 713.462.3885, emailing us at info@cloudnine.com, or by visiting us online at cloudnine.com.

About Complete Legal Services, LLC

Complete Legal Services, LLC (http://www.completelegalkc.com), is a Kansas City-based legal support company serving the legal community and redefining litigation support through technology powered solutions. Composed of experienced members of the litigation support industry, Complete Legal delivers superior quality and service to clients. We process electronic discovery, provide online hosting services, scan and photocopy paper documents, provide legal software training and trial consulting services. To learn more about Complete Legal Services, contact us by phone at 913.297.1730 or visit us online at www.completelegalkc.com.

 

Press inquiries may be made to Chief Marketing Officer, CloudNine, via PR@cloudnine.com or 512-934-7531.

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I Wouldn’t Con You, But ILTACON is Just a Week Away: eDiscovery Trends

Believe it or not, it’s almost time for another ILTACON!  ILTACON is the annual conference for the International Legal Technology Association (ILTA).  This year, it is being held in the shadow of Washington, DC in Alexandria, VA at the Gaylord National Resort & Convention Center.  And, once again, eDiscovery Daily will be covering the show!  If you’re in the DC area next week, you may want to check out a few of these sessions regarding eDiscovery and Information Governance.

Technically, ILTACON opens in 6 days with the annual golf tournament, orientation and opening reception happening on Sunday.  Oh, and every day starts with Yoga and Zumba at 6:30am!  However, the Keynote and Educational Sessions start a week from today, on Monday, the 29th.  Here are a few sessions to check out:

Monday, 08/29/2016:

Federal Rules of Civil Procedure Amendments and Their Effect on Litigation Support Strategies, 11:00 AM – 12:00 PM ET: Significant amendments to the Federal Rules of Civil Procedure became effective on December 1, 2015. How have courts interpreted and applied these new changes? Do the amendments provide the basis for corporations to change their approaches to the preservation, collection, review and production of electronically stored information? If so, have they actually changed? What opportunities do the amended rules provide for litigation support departments to educate and consult with clients and drive their e-discovery strategies? Join a panel of experts to learn more about these recent developments.  Speakers include: Eric Lieber, Director of Legal Operations & Litigation Support Toyota Motor Sales; Honorable Andrew J Peck, US Magistrate Judge of New York and Rodney Holaday, Partner Vorys, Sater, Seymour and Pease LLP.

Security and Information Governance: Together in Perfect Harmony, 4:00 PM – 5:00 PM ET: Information governance and security shouldn’t be conflicting goals. You can satisfy the goals of your clients, general counsel, knowledge managers and technologists by aligning your information governance and security policies so they complement one another and advance your firm’s strategic goals. Security policies can reinforce information governance imperatives, and good information governance should be part of your security assessments. Join us as we examine the benefits of harmonizing these two disciplines, best practices and how to identify opportunities within your organization.  Speakers include: James A. Merrifield, Records & Information Governance Manager Robinson & Cole LLP; Leigh Isaacs, Director, Records & Information Governance White & Case LLP; Terry Coan, Senior Director HBR Consulting LLC.

And, of course, you don’t want to miss the Exhibit Hall Opening Reception from 7:00 PM – 9:00 PM ET, where booths will be decorated as different countries. As always, this is a great opportunity to visit with exhibitors and tour the Exhibit Hall in a relaxed setting and hors d’oeuvres and beverages will be served.

Tuesday, 08/30/2016:

Preparing an ROI for eDiscovery Services: A Litigation Technology Operations Workshop, 11:00 AM – 12:30 PM ET: In this hands-on, interactive workshop, participants will create a simulated return on investment (ROI) analysis for e-discovery services. This collaborative exercise will highlight several different approaches to a project and expose clues to reaching your firm’s ROI goals.  Speakers include: Mary Pat Poteet, Managing Consultant; Sheila Mackay, Vice President Xerox Legal Business Services; Bret Libigs, Enterprise Accounts Relativity by kCura.

The Lean, Mean E-Discovery Machine: Project Management in Litigation Support, 1:30 PM – 2:30 PM ET: Everyone talks about project management (PM), but do litigation and practice support technologists truly know why and how it is beneficial in e-discovery? Do specific deliverables and quality check points matter, or is project management an ad hoc exercise? Three high-level e-discovery strategists will examine aspects of the business side of e-discovery, such as estimating and budgeting, and offer insight into how to measure your PM maturity, the success of your e-discovery projects, and the specific processes and workflows that have yielded successful outcomes. Learn what works — and what doesn’t — when implementing a project management program while striving to manage change in e-discovery.  Speakers include: Michael Quartararo, Director of Litigation Support Services Stroock & Stroock & Lavan LLP; Dera Jardine Nevin, Director of eDiscovery Proskauer Rose LLP; Daryl Shetterly, Director, DRS Operations Orrick, Herrington & Sutcliffe LLP.

Wednesday, 08/31/2016:

The Future of Law Firms in the E-Discovery Space: A Client’s Perspective, 3:30 PM – 4:30 PM ET: With the rise of legal service providers and more clients taking work in-house, the value chain in the e-discovery world has been somewhat disrupted. To combat this, we need to delve into clients’ long-term strategies for managing electronic discovery. Who is responsible for various tasks today? What is the plan for the future? How might these strategies effect how we work and how we’re staffed? How are firms and vendors responding to the new models? Let’s get the client’s perspective!  Speakers include: Eric Lieber, Director of Legal Operations & Litigation Support Toyota Motor Sales; Joan Washburn, Director of Litigation and eDiscovery Services Holland & Knight LLP; Thomas Biegacki, Business Development Executive Integreon; EJ Bastien, Lead eDiscovery Program Manager Microsoft Corporation.

Thursday, 09/01/2016:

How Future Technology Will Affect Litigation Support, 11:00 AM – 12:00 PM ET: A panel of e-discovery industry leaders and visionaries will discuss what future technologies will have an effect on litigation support and e-discovery. Find out what these leaders think will happen in the next few years and what you need to be ready for with the coming changes in technology.  Speakers include: Stephen Dooley, Assistant Director of Electronic Discovery and Litigation Support Sullivan & Cromwell LLP; Craig Ball, ESI Special Master and Attorney Craig D. Ball, P.C.; Jay Leib, Founder and CEO NexLP; Sheila Mackay, Vice President Xerox Legal Business Services; Dave Copps, Founder & CEO Brainspace; Brendan Hall, Vice President, Business Development Xerox Legal Business Services.

Click here for more information on registering for the conference.  Hope to see you there!

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

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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.