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If You’re Going to Attend Just One Session at LegalTech Next Week, Make it This Session – eDiscovery Best Practices

In just a few days, there will be big happenings in the New York area!  No, I’m not talking about the big game, I’m talking about the biggest legal technology event of the year, LegalTech New York (LTNY).  If you’re going to be attending the conference this year (and, if not, why not?), here is a session that is a “must attend” for anyone who wants to know leading judges’ perspectives on eDiscovery rules changes and best practices.

On Day 2 of the conference, Wednesday, February 5 at 9:00am, eDiscovery industry expert Craig Ball will lead a discussion with five renowned judges who have had significant impact on how lawyers manage legal technology.  The Day Two Keynote General Session Presentation – Judges Panel: Changing Rules and Best Practices in e-Discovery will include Craig and the following judges:

  • Honorable Lee H. Rosenthal, United States District Judge, Southern District of Texas
  • Honorable Shira A. Scheindlin, United States District Judge, Southern District of New York
  • Honorable John M. Facciola, United States Magistrate Judge, District of Columbia
  • Honorable James C. Francis, United States Magistrate Judge, Southern District of New York
  • Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York

Most of these judges were discussed in Lisa Holton’s article (E-Discovery: A Front-Row Seat) as “trailblazing” judges in The American Lawyer (we covered it here) and we’ve covered a number of their decisions and opinions over the history of this blog.

As the summary of the session notes, when it comes to legal technology, few names are more synonymous with the industry than these panelists.  Craig will lead the discussion, as the judges share their views on today’s legal landscape with an eye towards what the future holds.  These eDiscovery pioneers will share their experiences and viewpoints to help attendees best prepare for the law and practice of tomorrow.

Craig referenced the session in his own excellent blog, Ball in Your Court, here. As Craig notes, “The judges will be discussing some of what you might expect, e.g., proposed Rules amendments, predictive coding, Rule 502 and expectations of lawyer technical competence.  We will also be exploring a few fresh issues, like the impact all those little screens are having on everyone in and out of court.”   Craig also indicated that there was “still time to add topics and questions of interest to you” – if there is a topic you would like him to cover, you can post a comment to his blog post here or email him at craig@ball.net.

Because this session is a Keynote General Session, it’s open to all attendees, so, if you’re at the show next week, this session is a must see.  Don’t miss it!

LTNY starts next Tuesday and eDiscovery Daily will be covering the show for the fourth straight year.  We will also be conducted our thought leader interview series at the show again for the fourth straight year as well!  After the show, we will publish the schedule for posting the interviews.  Stay tuned!

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

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

LitigationWorld Quick Start Guide to Mastering eDiscovery – eDiscovery Best Practices

With the Super Bowl coming up in a few days, it seems appropriate to relay a story about the man for whom the trophy to the winning team is named…

During his first year with the Green Bay Packers, legendary coach Vince Lombardi pulled his team together for a stern lecture after his team lost five games in a row.  He scolded them saying “You forgot every basic fundamental about this game.  We are going to have to start all over again, from scratch!”  Then, he picked up a football and said “Gentlemen, the basics.  This is a football!”  To which one of his players responded “Hold on a minute, Coach!  You’re going too fast!”

Sometimes, it seems like we’re “going too fast” when trying to explain eDiscovery to attorneys.  At least it seems that there are a lot of attorneys that don’t understand the simplest basics.  Now, a brand new guide is hoping to help change that.  Earlier this month, TechnoLawyer published LitigationWorld Quick Start Guide to Mastering Ediscovery, written by Tom O’Connor, who is a nationally recognized consultant in legal technology (and past thought leader interviewee on this blog).

After illustrating just how big the knowledge gap can be, how a lack of eDiscovery knowledge can prove disastrous (via the opinion In re Fannie Mae Securities (D.C. Cir. Jan. 6, 2009)) and the ethical duties for lawyers to understand technology, Tom’s Quick Start Guide dives into the “This is a football!” basics of how computers work and why you should care.  It discusses the bits and bytes (literally) of how computers store data that is discoverable and how “deleted” electronically stored information (ESI) is actually often recoverable.  Remember Oliver North and the Iran-Contra affair?  His deleted email was recovered and he was convicted of perjury…way back in 1989.  These are not groundbreaking new concepts, but they are important if you’re going to be responsible for handling data in discovery.

With some basic technical concepts covered, the guide covers the evolution of eDiscovery with the December 2006 amendments to the Federal Rules of Civil Procedure (FRCP), similar amendments adopted by many of the states and, of course, the groundbreaking Zubulake v. UBS Warburg case.  To tie back to the computer fundamentals, Tom asks and answers an important question: “How can you apply current and future rules to ensure your clients preserve all potentially relevant ESI unless you know how it’s stored? You can’t so that’s why you need to understand the basic technological underpinnings of data storage.”

Tom then goes on to cover various forms of production and the advantages and disadvantages of each – his reference to TIFF images as “petrified” is the best adjective I’ve heard yet to describe them – and covers other basic (but important) concepts, such as collection, processing and load files.  He concludes by discussing the importance of learning to “speak geek” about storage technologies and sets the path for you to travel to “true eDiscovery mastery”.

The document is relatively short and sweet, at just 17 pages after the title page and is an easy read, yet contains numerous links to outside resources for those who want to dive deeper.  He references a number of resources and courses available from a variety of eDiscovery pioneers, including Ralph Losey, Craig Ball and Michael Arkfeld.  There is no shortage of resources in this guide for those who want to learn more about eDiscovery.

The free guide is available for download at TechnoLawyer here (you have to be a member of TechnoLawyer to get it, but membership is free, which also gives you access to numerous other resources available on the site).

As Tom notes via a quote from Craig Ball (from this very blog, no less), “Understanding information technology is a necessity for litigators. That’s where the evidence lives.”  As Tom notes, “We all must adapt to this new paradigm of working in the digital world.”  Let’s hope that adaptation occurs sooner rather than later.

So, what do you think?  Do you understand the basic technical concepts you need to as a lawyer?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

Six eDiscovery Predictions for 2014, Part Two – eDiscovery Trends

It’s that time of year, where people make predictions for the coming year for all sorts of things, including electronic discovery trends for the coming year.  Friday, we covered my first three eDiscovery predictions for 2014.  Here are the remaining three predictions.

Prediction 4: Data security will be more of an emphasis than ever, yet we will continue to see more data breach stories than ever.

According to the 2013 survey entitled Security Snapshots: Threats and Opportunities that was conducted by the ABA’s Legal Technology Resource Center (available to members here), “Fully 70% of large firm respondents reported that they didn’t know if their firm had experienced a security breach”.  15% of survey respondents had experienced a security breach.

With notable security breaches happening at major corporations like Target, who recently provided an update to their holiday data breach issue that “the stolen information includes names, mailing addresses, phone numbers or email addresses for up to 70 million individuals”, and at our own Federal government, data security is becoming a major priority for everybody.

Law firms are no different.  As The American Lawyer’s 18th annual survey of law technology noted, eighty-six percent of respondents – technology directors and CTOs from 87 Am Law 200 firms – say they are more concerned about security threats now than they were two years ago.  To address the threat, law firms will have to be prepared to beef up their security infrastructure, either internally or via virtual resources.

Prediction 5: Small to medium sized law firms will need to leverage virtual resources more than ever to compete.

Speaking of virtual resources, it is becoming more difficult for law firms, especially small to medium sized firms, to keep up and compete.  Many small to mid-sized firms lack the project management expertise, the core competency, the infrastructure and the personnel in house to provide the full range of services that clients are demanding, especially for litigation support and discovery services.

Not only that, but maybe it’s not such a good idea for firms to handle all of their litigation support work in house?  “Why should you own and operate a nonlegal e-discovery business within your walls under the guise of a litigation support department?”  Collection, forensic analysis, processing, database creation and other related tasks are highly technical, nonlegal tasks that are the core competency of eDiscovery vendors, not law firms.  Through the use of virtual resources on a continual basis, “you can leverage your mass buying power and negotiate a low rate for all of your clients”.

Those aren’t my words, they’re the words of eDiscovery thought leader Ralph Losey (a little over a year ago) talking about his own firm, Jackson Lewis, and their decision to outsource their litigation support work.  If a firm like Jackson Lewis decides it’s best to make use of dedicated virtual resources, maybe it makes sense for your firm?  Regardless, I expect that more firms will be forced to outsource and leverage virtual resources to compete with the big firms and the small to medium sized firms that already outsource.

Prediction 6: Educating attorneys on eDiscovery best practices will continue to be a slow, painful process.

When we started eDiscovery Daily three years ago, some of my friends questioned whether there would be enough topics to justify a daily blog about eDiscovery.  Not only have there been enough topics, we’ve had to choose which topics to cover regularly.  There is plenty of information out there regarding eDiscovery trends and best practices, not just from this blog, but numerous other sources as well.

And, there are numerous industry thought leaders who have spent considerable efforts to educate attorneys on eDiscovery basic concepts and best practices.  People like Craig Ball, Ralph Losey, George Socha and Tom Gelbmann, Tom O’Connor and others have spearheaded initiatives to help attorneys (and law students aspiring to become attorneys) to understand eDiscovery better (here is a link to last year’s thought leader interviews if you want to check out their thoughts about education).

Unfortunately, many of the attorneys that I talk to still understand very little about eDiscovery.  Most of those don’t think there is a need to learn about it – often, they’ll tell me that they “don’t have big enough cases” to need to know about it.  I’ve heard other industry professionals discuss similar experiences about the attorneys they meet.  So, while we’ve done a lot in the industry to educate lawyers about eDiscovery, it appears we still have a long way to go.

So, what do you think?  Do you have any eDiscovery predictions for 2014?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Is a Blended Document Review Rate of $466 Per Hour Excessive? – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  Published less than two months ago in September, this post quickly vaulted to the top as the most viewed post of all time with over 1,400 lifetime views!  I guess the nerve of the plaintiff’s lead counsel struck a nerve with our readers!  Enjoy!

______________________________

Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon last month.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

Someone Else’s Money – eDiscovery Best Practices

Leave it to Craig Ball to liken lawyers’ delegation of eDiscovery to Prince Akeem’s “royal backside wipers” in the Eddie Murphy movie Coming to America.

In Craig’s blog post E-Discovery and the Zamundan Royal Backside Wipers, he notes “everywhere I’m met with the attitude that electronic discovery isn’t a lawyer’s concern:  ‘It’s something you hire people to do,’ they say.”

“Certainly, we must hire people to do things we cannot possibly do.  But I contend that we hire people to do many things we could learn to do ourselves, and do economically.  Remember Eddie Murphy’s royal backside wipers in Coming to America? All it takes is money to burn; and if it’s someone else’s money, who really cares?”

The problem, as Craig notes, is that lawyers who refuse to educate themselves on eDiscovery and IT concepts run the risk that they may “go the way of the local bookseller and video rental shop”.  “Clients will not pay for Royal Wipers forever, and we should not ask them to do so.”

Craig then proceeds to provide five categories (with over 40 sub-categories) of “top-of-my-head list of lawyer duties” for eDiscovery.  It’s a great list and I won’t steal his thunder – you can click on the link above to view his post and the list.

Working for an eDiscovery provider, you might think that we prefer lawyers to remain ignorant regarding eDiscovery and turn everything over to us.  In fact, I find we get more work from attorneys that understand and appreciate the importance of managing eDiscovery effectively.  Those who understand the issues associated with electronic files, that processing files require a sound process, that you should test your search terms early and that cloud-based eDiscovery is secure are the attorneys who make the best clients as they understand the benefits of the services we provide.  Knowledge is power!

Craig finishes his post relaying the story of a recent speech, where afterward, he was approached by a woman who had expressed “frustration that IT folks use a lot of jargon and initialism when they discuss their work”, to which Craig noted that “perhaps lawyers should learn to speak a little geek”.  “[I]f you’re going to live in France, it makes sense to gain a little fluency in French.”

If not, you may find yourself a bit behind.  Sorry, I couldn’t resist.

So, what do you think?  What do you do to educate yourself on eDiscovery best practices?   Please share any comments you might have or if you’d like to know more about a particular topic.

For more of Craig’s thoughts about lawyers and eDiscovery education, check out his three-part thought leader interview from earlier this year.

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

Is a Blended Document Review Rate of $466 Per Hour Excessive? – eDiscovery Case Law

Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon last month.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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

eDiscovery Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

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

The Sedona Conference Commentary on Ethics & Metadata – eDiscovery Best Practices

One of the most influential organizations in eDiscovery is The Sedona Conference® (TSC), and some of TSC’s most recent contributions have been documented in this blog, including a commentary on proportionality (released in 2010), database principles (2011) and guidance for judges (2012).  Last month, TSC’s Working Group on Electronic Document Retention & Production (WG1) released it’s Second Edition of The Sedona Conference® Commentary on Ethics & Metadata.

As noted in the Preface of the Commentary, it “focuses on the ethical considerations surrounding the inclusion and review of metadata in the non-discovery and discovery contexts.”  It is also “intended to provide practical guidance for lawyers in protecting confidential metadata and to assist the judiciary in fashioning appropriate discovery orders.”

The Commentary was first published for public comment in March 2012. Several recent significant developments in the law – including recommendations adopted by the American Bar Association House of Delegates in August of last year from the ABA Commission on Ethics 20/20 to extend a lawyer’s duty of competence beyond simply competence in the law to competence in technology relevant to advising and representing clients, along with several dozen comments from WG1 members and the general public – spearheaded the updates.

In addition to the Preface and Conclusion, the Commentary is organized into the following sections:

  • Ethics and Metadata – Basic Concepts: Defines metadata and describes the different types of metadata (e.g., Application Metadata, File System Metadata, etc.) in detail, as well as describing a lawyer’s primary four ethical duties regarding metadata.
  • A Lawyer’s Ethical Obligations Regarding Metadata in the Non-Discovery Context: Discusses topics such as the ethical duties of a lawyer sending metadata or receiving metadata (generally), discussion of bar associations’ ethics opinions prohibiting data mining by the receiving lawyer and which jurisdictions generally do and don’t prohibit data mining and at least one bar association’s suggestion that a lawyer’s duties of competence and diligence require a search for and review of metadata included in electronically transmitted documents.
  • A Lawyer’s Ethical Obligations Regarding Metadata in the Discovery Context: Discusses how discovery is different (especially for the receiving lawyer, who is not only generally allowed, but also possibly mandated to search for and examine any produced metadata) and describes in detail the ethical duties of a lawyer producing metadata or receiving metadata in discovery.
  • Multijurisdictional Issues: Focuses on multijurisdictional conflicts in which a lawyer receives metadata in the non-discovery context.
  • Mitigation: Methods for mitigating metadata (when appropriate), including scrubbing, effective management of track changes, warning about electronic redactions and agreements and orders for handling metadata.

You can download a copy of the commentary here.  As always, you can visit the TSC website at to offer your comments on the public forum pages or submit feedback by emailing them at info@sedonaconference.org.

For more on metadata mining ethics, here’s a post from 2011 on an American Bar Association regarding the topic.

So, what do you think?  How do you handle metadata in your practice?   Please share any comments you might have or if you’d like to know more about a particular topic.

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

Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case? – eDiscovery Best Practices

A few weeks ago, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process.  The sticking point may be the ESI consultant in dispute.

As reported by Victor Li in Law Technology News (Judge Refuses to Disqualify EDD Vendor for Playing Both Sides), the defendant in Gordon v. Kaleida Health is taking its fight to the U.S. District Court to have eDiscovery vendor D4 Discovery disqualified from working on the case on behalf of the plaintiffs.  In their initial objection on June 5 and their July 12 filing, Kaleida Health claimed that New York Magistrate Judge Leslie Foschio erred and that D4 should have been disqualified.  As the article notes, “Kaleida’s attorneys at Nixon Peabody had decided to use predictive coding to go through its gigantic cache of 300,000 to 400,000 emails, and had hired D4 (in 2010) to provide scanning and coding services. In 2011, D4 entered into a contract to provide e-discovery consulting services to the plaintiffs. Despite D4’s representation that its consultants had not been involved in the project for Nixon Peabody, Kaleida and Nixon Peabody objected.”

In his ruling, Foschio ruled that there was no conflict of interest for reasons including:

  • D4’s involvement with Kaleida was limited to scanning and coding documents;
  • Kaleida failed to show that D4 had access to any confidential information;
  • D4’s duties to Kaleida were “a routine clerical function” (similar to photocopying documents) while services provided to the plaintiffs were “requiring expert knowledge or skills”;
  • D4 had only been hired to code objective information into assigned fields and was not asked to identify substantive case issues or make subjective decisions about the documents;
  • D4 had actually subcontracted its work for Kaleida to Infovision 21.

Conversely, Kaleida and its attorneys at Nixon Peabody argued that there was a confidential relationship with D4 and that D4 had access to sensitive information, arguing that the plaintiffs’ attorneys at Thomas & Solomon spoke directly to Amir Karahasanovic, the D4 employee who had handled the Kaleida job, violating that confidential relationship.

Li’s article also quotes Electronic Discovery Reference Model (EDRM) co-founder George Socha (a thought leader interviewee on this blog for the past three years), who referenced the EDRM’s Model Code of Conduct (our previous post about it here) as a means to encourage vendors to avoid these types of situations.  In Guideline 9 of Principle 3 (Conflicts of Interest) of the code, it states “Service Providers should not proceed with an engagement where one or more conflicts have been identified until those conflicts have been resolved and the resolution is adequately memorialized to the satisfaction of all parties involved.”

So, what do you think?  Are there some services or situations where it’s acceptable for an eDiscovery provider to work on both sides of a case?  Or should providers only do so if both parties agree?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

When Lawyers Get Sued, They Have Preservation Obligations Too – eDiscovery Case Law

In Distefano v. Law Offices of Barbara H. Katsos, PC., No. CV 11-2893 (JS) (AKT) (D. ED NY Mar. 29, 2013), New York Magistrate Judge A. Kathleen Tomlinson found that the defendant (an attorney who was being sued by the plaintiff she previously represented for breach of contract, negligence/legal malpractice, and breach of fiduciary duty/duty of care) had a duty to preserve information from a discarded computer and ordered a hearing for the defendant to address a number of questions to determine the potential relevance of the destroyed data and whether the defendant had a sufficiently culpable state of mind.

The plaintiff alleged professional negligence by the defendant related to her representation of his franchise business for Cold Stone Creamery stores.  During a Discovery Status Conference, it was revealed that the defendant had gotten rid of her computer before the litigation began, as she noted in her affidavit that she was advised by a third-party individual who fixed her office computers that they could not be repaired.  As she used AOL for email correspondence, she contacted AOL “to inquire if emails from several years ago could be recovered by AOL”, but was told that they “could not recover emails from several years ago for the stated email address”.  After receiving the defendant’s affidavit, the plaintiff filed a motion for spoliation.

With regard to the defendant’s duty to preserve information related to her representation of the plaintiff, Judge Tomlinson stated:

“The Court concludes that Katsos’ duty to preserve documents arose as early as late February 2009, when Michael DiStefano terminated the attorney-client relationship between Plaintiffs and Defendants.”  On February 24, 2009, the plaintiff send the defendant a letter terminating the representation “immediately” and stated that he would “communicate with you further, in writing, so as to explain the reasons why I am discharging you.”  Noting that the “language of Michael DiStefano’s letter gives the appearance that Distefano was not satisfied with Katsos’ work”, Judge Tomlinson also noted that “[i]n assessing whether litigation was reasonably foreseeable in these circumstances, the Court cannot ignore the fact that Katsos is an attorney and should have been attuned to the prospect of litigation.”

To determine the defendant’s culpable state of mind, Judge Tomlinson ordered a hearing on May 13 for the defendant to “be prepared to testify regarding, among other things, the following areas:

  1. Katsos’ normal document preservation/retention/deletion/destruction practices;
  2. the number of computers utilized in her office prior to 2009, when the computers were purchased, and the specific circumstances surrounding the breakdown of each of those computers;
  3. the service agreements for those computers and the vendor(s) used;
  4. whether Katsos maintained a network server;
  5. AOL’s automatic deletion policies to the extent they were explained to Katsos;
  6. a complete list of every email address used by Defendant Law Offices of Barbara H. Katsos, PC and Defendant Barbara Katsos or her staff to communicate with Plaintiffs;
  7. Katsos’ attempts to gain access to the email accounts used by her paralegals and interns referenced in Paragraph 5 of Katsos Aff. II and page 16 of Plaintiffs’ Memorandum;
  8. the document preservation steps undertaken by Katsos when Plaintiffs instituted an adversary proceeding against her in March of 2010;
  9. the retention and utilization of the services of Jan Sloboda.” (the third-party individual that advised her to replace her computers)

The plaintiffs were also ordered to identify “general categories of documents that have been adversely affected” to help determine the relevance of the data in question and were permitted to question the defendant at the hearing.

So, what do you think?  Was this an appropriate course of action to determine whether sanctions are appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

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