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Electronic Discovery

There’s a New TAR Case Law Primer Published by The Sedona Conference: eDiscovery Best Practices

One of the major topics discussed during last month’s panel discussion at The Masters Conference and also last week during our ACEDS webinar was the debate over the current state of judiciary acceptance of technology assisted review (TAR).  Whether intentional or not, to help with that debate The Sedona Conference® has just published the Public Comment Version of a new TAR Case Law Primer.

This was a project of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1).  As noted in the Preface of the Primer, it is “the product of more than a year of development and dialogue within WG1. It was originally conceived as a chapter of a larger Commentary on the use of TAR in civil litigation, but the rapid development of the case law, the volume of court decisions, and the importance of those decisions in shaping legal practice in real time required that an exposition of the case law be made available on a faster timetable than WG1’s usual dialogue and consensus-building process allowed. For that reason, the Primer strives to present the case law in as neutral a fashion as possible. It avoids making any recommendations regarding particular TAR methodologies, nor does it propose any principles, guidelines, or best practices for TAR application, independent of those suggested by the courts themselves.”

The 33 page PDF file covers several topics related to Technology Assisted Review, including:

  • Da Silva Moore: Obviously as the first case to authorize the use of TAR, Judge Andrew Peck’s Da Silva Moore ruling merits its own section as a logical starting point, with the advantages of TAR and the emphasis on process (including advice to “follow the Sedona Cooperation Proclamation model”);
  • Other Courts’ Encouragement of the Use of TAR and Additional Cases Reflecting the Parties’ Use of TAR: The Primer touches on other cases where the use of TAR was either encouraged or used;
  • Disputed Issues Regarding TAR: This is the significant portion of the Primer, touching on issues ranging from efforts by requesting parties (and by courts) to compel the use of TAR, two contradictory decisions about whether it’s OK to switch to TAR in the middle of discovery, cases that address the appropriateness of using search terms to cull the document population before applying TAR, issues associated with disclosure of seed/training/validation sets and advance court approval of the use of TAR (such as the Dynamo Holdings case, which recently had another significant opinion about the results of the TAR process, despite cooperation between the parties).

The Primer also provides a review of evolving views of TAR and the state of international adoption, with discussion of both the Pyrrho Investments and Brown v BCA Trading cases.  The final section is an Index of Cases (at least those covered in the Primer).

The Conclusion section (just before the Index of Cases) offers this conclusion:

“While the case law reflects a broad consensus that TAR is an acceptable search and review methodology, certain issues regarding the details of its use remain unresolved. The general principles set forth in the cases discussed in this Primer should provide useful guidance to courts and parties seeking to use TAR to achieve the goals of Federal Rule 1 (the just, speedy, and inexpensive resolution of legal proceedings) and Rule 26(b)(1) (proportionality). The Bench and Bar should continue to actively monitor research and case law developments in this area.”

You can download the Primer here.  The Sedona Conference encourages Working Group Series members and others to spread the word and share this link so they can get comments in before the public comment period closes on October 15, 2016 (consider the word spread!). Questions and comments regarding the Primer may be sent to comments@sedonaconference.org.

So, what do you think? What do you consider to be the state of judicial acceptance of TAR?  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.

Here’s an Interesting Interview Conducted Using a Cool Conversation Tool: eDiscovery Trends

If you regularly read sites that discuss legal technology and other important issues for the legal profession, you’re certainly familiar with the site Above the Law, which takes a behind the scenes look at the world of law and covers it on several levels, including big law, small firms, law schools, finance, CLE and, of course, eDiscovery.  Regarding eDiscovery, their latest interview gives you an opportunity to learn more about our company, CloudNine.

In Simplicity And eDiscovery? A Conversation With CloudNine’s Brad Jenkins, written by Zach Abramowitz, our CEO and co-founder discusses the evolution of our company (we’ve been around probably longer than you realize – over 13 years), the challenges of competing in a crowded eDiscovery market and, especially, the challenges of competing in that market without the benefit of outside funding from an investor or venture capital firm.  Brad also discusses our value proposition and how our approach to security is different from other SaaS eDiscovery automation providers in the market, among other things.  If you want to learn more about us as a company, this is a good opportunity to hear it from the guy (well, one of two guys) who started it all.

Another notable aspect of the interview is how it has been (and still might be being) conducted.  Abramowitz is using a mechanism called ReplyAll, which enables you to invite other writers or interesting guests to your site for interviews, roundtables, stories and debates.  So, it’s really a mechanism that facilitates conversations online.  Having commented on a couple of conversations started via ReplyAll, it’s a great way to manage discussions with a limited or (conceivably) unlimited number of participants.

When I mentioned that the interview still might be being conducted, that’s conceivably possible.  When the interview “began” on Tuesday’s article, Abramowitz had asked Brad a few questions, to which he responded.  If you checked yesterday morning, there was another question out there and, later in the day, another response from Brad.  So, the interview may still be going on as we speak!  :o)

So, what do you think?  Have you participated in an online discussion using ReplyAll?  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.

Above the Law Highlights a Conversation with CloudNine’s Brad Jenkins

Extract from Above the Law article by Zach Abramowitz

Today, I’m chatting with CloudNine’s CEO Brad Jenkins to find out more about his company’s story, their approach to the cloud and the future of the ediscovery space.

Zach Abramowitz: Brad, thanks for joining me, tell me a bit of the background behind your company. When did you decide to pivot into software?

Brad Jenkins: Great question and, like most software companies, we had both a tactical reason and a strategic reason for deciding to invest in building our software solution.

The tactical catalyst for our development was simply a 10,000 box scan project where the client asked us how they could best manage their data once it was digitized. From that request, we began developing a custom solution to solve a specific customer problem, and that launched us down the road of software development.

From a strategic perspective, as a litigation services and support company founded in 2002, we certainly were aware of the print-to-digital and digital-to-discovery challenges and opportunities presented to providers over the last decade. Initially, we helped clients address eDiscovery challenges by aggregating best-of-breed technology and supporting that technology with a strong portfolio of professional services. Over time, we became highly aware of the strengths and weaknesses of the leading software platforms and began to develop our technology to address the core needs expressed daily by our customers. Those needs being speed, simplicity, and security. Addressing those underserved needs, we launched our initial software platform which has evolved into our SaaS-delivered CloudNine Simplified eDiscovery Automation platform.

Read the complete conversation with Brad Jenkins on Above the Law.

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Here’s a New Twist to Text Overlays on Image-Only PDF Files That Can Be Even More Problematic: eDiscovery Best Practices

Remember when we discussed the issue of text overlays on image-only PDF files (typically represented as Bates numbers) and the problems they cause?  Well, we found a variation to the issue that is even more of a problem.

Here’s a recap of the issue we identified a couple of years ago.  The client was using the Discovery Client that allows clients to upload their own native data for automated processing and loading into new or existing projects into our CloudNine platform.  The collection was purported to consist mostly of image-only PDF files, which is one way to create PDF files (click back to the old post for more info on both ways to do so).

Like many processing tools, such as LAW PreDiscovery®, CloudNine was programmed back then to handle PDF files by extracting the text if present or, if not, performing OCR on the files to capture text from the image.  Text from the file is always preferable to OCR text because it’s a lot more accurate, so this is why OCR is typically only performed on the PDF files lacking text.

After the client loaded their data, we did a spot quality control check (like we always do) and discovered that the text for several of the documents only consisted of Bates numbers.

Why?

Because the Bates numbers were added as text overlays to the pre-existing image-only PDF files.  When the processing software viewed the file, it found that there was extractable text, so it extracted that text instead of OCRing the PDF file.  In effect, adding the Bates numbers as text overlays to the image-only PDF rendered it as no longer an image-only PDF.

As a result of this issue a couple of years ago, we added logic to the processing engine of CloudNine to perform OCR if there is minimal text per page (to account for the scenarios where there is only a Bates number).  Therefore, the content portion of the text would still be captured, so it would be available for indexing and searching.  Problem solved, right?

For the most part, yes.  Until a couple of weeks ago, where we ran into the situation again on a few PDF files.  Again, these files only generated the Bates numbers during processing.  What made them different?

Ever hear of a watermark?  These documents were stamped DRAFT via a light gray watermark on the PDF file.  Then, they were Bates stamped with the Adobe Acrobat Bates Numbering functionality.

Evidently, because of the watermark, the document image and the text overlaid Bates number were on separate levels of the PDF.  The processing tool failed to pick up the text because it essentially couldn’t find it.  Our production team ultimately had to re-generate the PDF files (by printing them back to PDF) and then OCR them.  That’s one reason why it’s good to have a team in place – to handle anomalies like that which occur.

As we noted a couple of years ago, if you haven’t applied Bates numbers on the files yet (or have a backup of the files before they were applied – highly recommended) and they haven’t been produced, you should process the files before putting Bates numbers on the images to ensure that you capture the most text available.  And, if opposing counsel will be producing any image-only PDF files, you will want to request the text as well (along with a load file) so that you can maximize your ability to search their production.  Doing so will save you additional processing charges.

Of course, your first choice should be to receive native format productions whenever possible – here’s a link to an excellent guide on that subject.

So, what do you think?  Have you dealt with image-only PDF files with text overlaid Bates numbers?  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.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Declines to Sanction Defendant for Deletion of Former Employee’s Email Account: eDiscovery Case Law

In Moore v. Lowe’s Home Centers, LLC, No. 14-01459 (W.D. Wash., June 24, 2016), Washington District Judge Robert J. Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence for deleting her email account after she was terminated, finding a lack of duty preserve or bad faith on the defendant’s part and minimal (if any) prejudice to the plaintiff.

Case Background

In this case involving allegations of unlawful employment practices by the defendant, the plaintiff (employed at the time by the defendant) emailed the defendant’s Human Resources department and other management about her concerns “on at least eleven occasions, articulating concerns about, inter alia, other employees ‘gang[ing] up’ on her, ‘glaring and…nonverbal harassment,’ and criticism of Plaintiff’s frequent restroom use during pregnancy”. At least on one occasion, one of the defendant’s employees sent correspondence to HR suggesting that the plaintiff might sue. The defendant ultimately terminated the plaintiff in February 2013 and the defendant’s “Legal Counsel was allegedly present for at least one meeting where Plaintiff’s termination was discussed.”

On April 25, 2013, the plaintiff’s attorney demanded that the defendant produce the plaintiff’s personnel file, which, according to the Court, formally placed the defendant on notice of potential litigation.  However, according to the defendant, the plaintiff’s email account was deleted on March 30, 2013 as part of a nightly-scheduled exchange task, which automatically deleted employees’ accounts on a certain date following their termination unless the defendant intervened, for example, when there was a Legal Hold.  The defendant allegedly limited its management and HR employees to 50MB of storage capacity in their inboxes, requiring employees to regularly clean out their inboxes manually or with automatic settings.  HR employees had deleted emails from the plaintiff that they acknowledged included emails that the plaintiff produced in discovery.  The plaintiff filed a Motion for Sanctions for Defendant’s Willful Spoliation of Evidence, requesting terminating sanctions.

Judge’s Ruling

Judge Bryan stated that the “parties’ briefing focuses on four issues, which are the focus of the undersigned’s analysis: (1) Defendant’s duty to preserve; (2) whether Defendant acted willfully or in bad faith; >(3) prejudice to Plaintiff; and (4) the appropriate sanction.”  Taken in turn, Judge Bryan ruled that:

  1. “Based on the parties’ submissions, Defendant did not have a duty to preserve Plaintiff’s emails prior to their deletion. Most of Plaintiff’s emails to HR and management do not raise ‘potential claims,’ but rather raise Plaintiff’s concerns about workplace gossip and challenging relationships.”;
  2. “Defendant was not on notice of potential litigation and had no duty to preserve Plaintiff’s emails until April 25, 2013, so Defendant did not act in bad faith by deleting Plaintiff’s emails, especially where there is no evidence that Defendant deleted them in violation of Defendant’s Records Management Policy or its own consistent records practice.”;
  3. “Even if Defendant willfully violated its duty to preserve Plaintiff’s emails, Plaintiff suffers only minimal prejudice, if any. Plaintiff produced eleven emails that substantiate much of the factual basis for most of her claims.”; and
  4. “Because Plaintiff asks only for the sanction of default, a request the Court denies, other remedies need not be addressed.”

As a result, Judge Bryan denied without prejudice the plaintiff’s Motion for Sanctions for Defendant’s Willful Spoliation of Evidence.

So, what do you think?  Should the duty to preserve have been earlier?  If so, would that have changed the result?  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 Voted as a Leading Online Review Platform Provider by Corporate Counsel Magazine Readers

National Survey of In-House Corporate Legal and Compliance Professionals Ranks CloudNine as Second Leading Online Review Platform

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 announced that it has been recognized as a leading online review platform according to the inaugural Best of Corporate Counsel reader ranking survey.

The Best of Corporate Counsel reader ranking survey was published in the July edition of Corporate Counsel Magazine. Voting for this inaugural survey was conducted via online ballot and limited to those working within in-house corporate legal and compliance departments. The ballot consisted of 55 categories, and more than 1,500 votes were cast in this inaugural run. CloudNine was highlighted in the 2016 survey as the second leading online review platform.

“As an eDiscovery technology company focused on simplifying eDiscovery through automation, we are excited that our offerings are positively impacting the way legal professionals conduct discovery, investigations, and audits,” shared Brad Jenkins, Chief Executive Officer of CloudNine. “We are incredibly grateful for the vote of confidence in CloudNine from eDiscovery professionals as highlighted in our ranking as a leading online review platform in the inaugural Best of Corporate Counsel reader ranking survey. We understand the importance of such a rating and are committed to continuing our singular focus of simplifying eDiscovery.”

Try CloudNine at No Risk, Immediately

To sign up for a free trial of CloudNine, visit the CloudNine website (cloudnine.com), request your free account, and begin immediately to use the power and precision of simplified eDiscovery automation in your litigation, investigation, and audits efforts.

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.

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

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Here is Where You Can Catch Last Week’s ACEDS Webinar: eDiscovery Trends

Our webinar panel discussion conducted by ACEDS last week was highly attended, well reviewed and generated some interesting discussion (more on that soon).  Were you unable to attend last week’s webinar?  Good news, we have it for you here, on demand, whenever you want to check it out.

The webinar panel discussion, titled How Automation is Revolutionizing eDiscovery was sponsored by CloudNine.  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.

Thanks to our friends at ACEDS for presenting the webinar and to Bill Dimm and Bill Speros for participating in an interesting and thought-provoking discussion.  Hope you enjoy the presentation!

So, what do you think?  Do you think automation is revolutionizing eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Happy Anniversary to my wife (and the love of my life), Paige!  I’m very lucky to be married to such a wonderful woman!

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.

eDiscovery Daily Has a New Look!: eDiscovery Redesign

If you’ve been reading our blog the past couple of days, you may have noticed that our blog has a new look.

After nearly 6 years and over 1,450 posts, we decided it’s time to freshen our look.  So, our new site has a fresher look, larger fonts for easier reading of the posts, even easier to read than our last redesign back in January 2015.  We hope you like it!

Though we’ve updated the look, we’ve maintained the overall functionality within the blog to preserve the easy ability to look up topics by category or by month and we’ve preserved the search box to enable you to search for any topic you desire to find.  Most importantly, we’ve preserved the entire catalog of posts so that the entire knowledge base that we have built over the last 5 years, 10 months and 25 days (but who’s counting) is still available.  It’s all still there for you, including the almost 500 eDiscovery case law posts covering over 330 cases.

Naturally, when you migrate posts and change layouts, there are going to be a few hiccups.  So, if you see a page that has formatting issues, missing images or get an error when trying to navigate to a particular page, please feel free to drop me a line at daustin@cloudnine.com and let me know about it.  I would appreciate it.

By the way, this redesign is part of a larger redesign of our overall company site at CloudNine to better align our message with the offerings we provide (don’t worry, those haven’t changed).  We’ve redesigned our site to make it easier to get information about us, with a lot more information accessible from the main page.  So, whether you want to understand what we do, understand the professional services we provide, get a sense of some of the clients we’ve assisted and supported, find out about our news and events, find out what clients are saying to us or get to our blog (obviously!), you can get that information from the main page.  Of course, you can also get a free trial of our software.  Navigation to other areas is more intuitive as well.

Even our default domain has changed!  Our new site is cloudnine.com/ – we’re The eDiscovery Automation Company! (our old url – www.cloudnincloudnine.comm – still works too).  And, it looks sharp!  (at least we think so…)

A lot of hard work has gone into the site over the past several months from strategic planning to design to creating a pilot site for demonstration at the ACEDS conference this year to actual development of the new site.  Thanks to all who helped make this site happen and provided feedback along the way, from media members to clients, friends and other advocates.  We also want to thank industry analysts like Gartner, Blue Hill Research, Inside Counsel, 451 Research and KM World for their coverage this year as well – we really appreciate it!

So, what do you think?  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.

Thanks to EDRM, There Will Be a Way to Assess the Data Security of Your Providers: eDiscovery Best Practices

Do you ever wonder or worry about how securely your providers and partners handle your sensitive data during the discovery process?  Then, this latest project from EDRM will help address those worries.

As they announced earlier this week, EDRM has established a new project to develop and provide a security survey. A team of experienced and qualified EDRM members will be working to develop and publish a “straightforward and easy tool for evaluating the security capabilities of corporations, law firms, cloud providers and third parties offering electronic discovery or managed services”.

The goal of the security survey project is to provide organizations with an overview of the critical questions to ask when assessing the data security of an eDiscovery vendor or partner. The overview includes specific sections on risk management, asset security, communications and networking security and identity and access management. The evaluation allows the assessor to determine the level of risk the organization may be assuming by engaging the vendor or partner and to make suggestions to improve security practices and enhance the service provided.

Once created, the security survey will be intended to evaluate an organization’s data security and practices, allowing potential customers to assess the risk of entrusting their sensitive data to the vendor. The tool will also be able to be used to assess data protection from destruction or unauthorized access, as well as to assure regulatory compliance with data-related legislation such as HIPAA, the Sarbanes-Oxley Act and security breach notification laws.

Project leads for this new EDRM project are Julie Hackler, regional sales manager at Avansic, and Amy Sellars, senior litigation attorney with The Williams Companies. As you can guess, project deliverables are in the development stage. If you’re a professional in eDiscovery, data management or security and interested in joining and contributing to the project, you can direct questions or volunteer interest by email to Tom Gelbmann: mail@edrm.net.

So, what do you think?  Do you worry about how securely your providers and partners handle your sensitive data during the discovery process?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

Don’t Miss Today’s Webinar – How Automation is Revolutionizing eDiscovery!: eDiscovery Trends

Today is your chance to catch a terrific discussion about automation in eDiscovery and, particularly an in-depth discussion about technology assisted review (TAR) and whether it lives up to the current hype!

Today, ACEDS will be conducting a webinar panel discussion, titled How Automation is Revolutionizing eDiscovery, sponsored by CloudNine.  Our panel discussion will provide an overview of the eDiscovery automation technologies and we will really take a hard look at the technology and definition of TAR and the limitations associated with both.  This time, Mary Mack, Executive Director of ACEDS will be moderating and I will be one of the panelists, along with Bill Dimm, CEO of Hot Neuron and Bill Speros, Evidence Consulting Attorney with Speros & Associates, LLC.

The webinar will be conducted at 1:00 pm ET (which is 12:00 pm CT, 11:00 am MT and 10:00 am PT).  Oh, and 5:00 pm GMT (Greenwich Mean Time).  If you’re in any other time zone, you’ll have to figure it out for yourself.  Click on the link here to register.

If you’re interested in learning about various ways in which automation is being used in eDiscovery and getting a chance to look at the current state of TAR, possible warts and all, I encourage you to sign up and attend.  It should be an enjoyable and educational hour.  Thanks to our friends at ACEDS for presenting today’s webinar!

So, what do you think?  Do you think automation is revolutionizing eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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