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Here’s a Webcast to Help Plaintiff’s Attorneys Conquer Their Biggest eDiscovery Challenges: eDiscovery Webcasts

As we learned in Tom O’Connor’s recent five part blog series, it seems as though the eDiscovery deck is stacked against plaintiff’s attorneys.  Defendants seem to have all the resources, the technical know-how and the interest of the major eDiscovery vendors while the plaintiffs often have few resources, technical knowledge or eDiscovery experience.  How do plaintiff’s attorneys bridge that gap?  Here’s a webcast that will help put those plaintiff’s attorneys on a more equal footing with their defendant counterparts.

Wednesday, June 26th at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Conquering the Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys. In this one-hour webcast that’s CLE-approved in selected states, we will discuss the biggest eDiscovery challenges facing plaintiff’s attorneys and provide best practices for addressing those challenges to give plaintiff’s attorneys the best chance to get the evidence they need for their case. Topics include:

  • Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys
  • Ethical Duties and Rules for Understanding Technology
  • Does the eDiscovery Market Care About Plaintiff’s Attorneys?
  • Understanding the Fundamentals of eDiscovery
  • Your Clients May Have More ESI Than You Think
  • How to Request the Right Form of Production from Opposing Counsel
  • Mechanisms and Approaches for Getting the Data to Make Your Case
  • What You Need to Know About Technology Assisted Review
  • Resources You Need to Bridge Your Understanding Gap

As always, I’ll be presenting the webcast, along with Tom O’Connor, whose aforementioned white paper regarding the biggest eDiscovery challenges facing plaintiff’s attorneys was published last month on the blog.  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you’re a plaintiff’s attorney looking to better handle eDiscovery challenges or a defense attorney wondering what “secrets” we’re passing onto those plaintiff’s attorneys, this webcast is for you!

So, what do you think?  Are you a plaintiff’s attorney who feels that the eDiscovery deck is stacked against you?  If so, please join us!  If not, please join us anyway!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

If You’re Reading This, It Probably Doesn’t Apply to You: eDiscovery Best Practices

On the veritable eve of the annual Georgetown Law Center eDiscovery Training Academy (covered by us here), Craig Ball (who is in the midst of that very academy now) has asked the question Have We Lost the War on E-Discovery?  But, if you’re reading that (or this blog post), it probably doesn’t apply to you.

In Craig’s post from last Thursday, he notes that the idea that there is a war on eDiscovery “[s]ounds like a paranoid notion, but the evidence is everywhere.”  He observes that he is “flummoxed by how the tide has turned to anti-discovery topics”, such as proportionality, privacy, General Data Protection Regulation (GDPR) and cybersecurity.  He notes that “[t]hese are important topics” and that “[d]iscovery needs to be just, speedy and inexpensive”, but asks “why do we keep forgetting that there’s a comma in there?  Will we ever balance our self-interest in advancing our client’s wishes against our common interest in a justice system that serves everyone?”

Craig also notes that “Impractical, misplaced and mistimed topics like blockchain,” (oops, we did that in a blog series and webcast) “Dark Web and AI serve to eat up time that should be devoted to e-discovery topics about which lawyers still desperately need practical instruction.”  In asking you whether there is a war on eDiscovery, Craig also challenges you to “[l]ook at the agenda of any major e-discovery conference” and “[c]ount the hours devoted to practical e-discovery skills that support the finding and turning over of relevant evidence”, then “count the hours devoted to telling lawyers how to limit discovery, challenge discovery, assert proportionality, protect privacy, enforce data security, manage data breaches, delegate discovery to vendors, cut costs or cede their roles to robots.”

Craig, in referencing the “last round of e-discovery rules amendments”, also observes that requesting parties are not winning the war on eDiscovery and notes that “Corporations spent more money lobbying for the 2015 e-discovery rules changes than has ever been spent in support of procedural rules amendments since 1939.   Final score: Funders 1, Founders 0.”

Craig is not wrong about any of this.  He was one of the experts that discussed the challenges facing plaintiff’s attorneys in Tom O’Connor’s recent series on our blog.  There are a lot of challenges and we will touch on that tomorrow and later this month in our monthly webcast.

But, here’s the problem.  Most of the people who are in this predicament are probably not reading about this in Craig’s blog – or here.  They aren’t requesting those hours of instruction on practical eDiscovery skills.  They aren’t reading the blogs and other publications to learn more about what they should be doing (at least when we do cover those topics).

If they did, the webinars and blogs and conferences might just cover those topics more.  They cover what their viewers/readers/attendees are asking for.  And, it’s not usually the practical eDiscovery skills because many of the people who view the webinars, read the blogs and attend the conferences have learned about those already.  They are among the small percentage who have obtained that knowledge already and want to move onto newer topics that are more interesting to them.  It’s the rest of the people who haven’t.  And, unfortunately, they are the ones who are not reading Craig’s blog, or this one.

So, what do you think?  Do you want to see more practical eDiscovery skills covered on this blog?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

If You’re “Certifiable”, You Must Be “Committed”: eDiscovery Trends

Despite what the title might suggest, this is an eDiscovery related post, not a psychological one.  Certifications have become increasingly important in eDiscovery today and a couple of recent events illustrate how “committed” CloudNine is to eDiscovery professionals who are “certifiable”.

I can’t believe it has taken me this long to mention it, but I was recently interviewed by Jared Coseglia, founder and CEO of TRU Staffing Partners for Legaltech® News regarding our training and certification program for our CloudNine LAW product (The LAW PreDiscovery Certification is Back).  In that interview, Jared and I discussed the direction of LAW and how much CloudNine has invested in the product since we acquired it (along with Concordance and Early Data Analyzer, now rebranded as CloudNine Explore) in terms of doubling our development and customer success staff for the products.  As a result (shameless plug warning!), we have rolled out a number of new features and capabilities, including our new 64-bit ingestion “Turbo Import” module that has increased ingestion speed as much as 1200 percent in our tests.

But, another big part of LAW being back has been re-instituting the training and certification program for LAW.  While all these changes in functionality mean updates to the training and certification program, we have been working hard to make those updates to support a training and certification program that reflects those updates.  The end result is a certification program that reflects the most recent updates to the product and CloudNine will be looking to implement a two-year renewal to make sure that certified LAW professionals have certified training on the latest features.

If you’re an organization that uses LAW (or develops the product, like we do), that up-to-date certification will become more and more important in hiring eDiscovery professionals with experience in LAW.  Let’s face it, given the choice between two otherwise equivalent professionals – one who has an up-to-date certification in LAW and one who doesn’t – who wouldn’t pick the one who has the up-to-date certification every time?

Which leads me to the other event: yesterday’s announcement that CloudNine has renewed its partnership affiliation with the Association of Certified eDiscovery Specialists (ACEDS).  How far has ACEDS come in the past three plus years?  ACEDS today has 20 chapters across the globe, and over 10,000 professionals tuned into their weekly newsletter, which is great and it’s due to the leadership of ACEDS executive director Mary Mack and VP of Client Engagement Kaylee Walstad (and the team that support them).

Like CloudNine and our eDiscovery Daily Blog, ACEDS has been committed to education of eDiscovery professionals in a variety of ways, through webinars (some of which we have partnered with them on) and other educational programs, and especially through certifications.  It wasn’t that long ago that an industry survey showed that eDiscovery professionals were only slightly more than 50-50 on eDiscovery certifications, but the ACEDS certification today has clout like never before.  The ACEDS certification could make the difference between getting that important eDiscovery job and not getting it.  So, if you’re certifiable – and you’re committed – that could actually be a good thing (at least from an eDiscovery standpoint, if not a psychological one).

So, what do you think?  Do you have an ACEDS certification or some other eDiscovery related certification?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Does Louisiana’s Tech Ethics Opinion Miss the Mark? Depends on Who You Ask: eDiscovery Trends

Last week, I read an article from Bob Ambrogi on Above the Law, that discussed his opinion (as well as that of Nicole Black, discussed in her Sui Generis blog) that the recently adopted Louisiana ethics opinion misses the mark with regard to guidance to lawyers regarding their ethical duty to understand technology.  When I saw that, I reached out to my good buddy Tom O’Connor (and the longest tenured Louisiana attorney I know, sorry Craig), for his take.  Did he agree with that assessment?  As Tom put it in his own Techno Gumbo blog (channeling his internal Lee Corso), “not so fast, my friend”.

The first shortcoming that Bob and Nicole point out has to do with language that seems to indicate that the duty to be competent in technology should kick in only if a lawyer “chooses” to use technology.  Two quotes from the opinion are as follows:

Spanning the bottom of page 1 and top of page 2: “The consensus is that if a lawyer is going to use technology, that lawyer has a duty to comply with Rules 1.1, 1.3, 1.4, 1.6 and 1.15 of the ABA Model Rules of Professional Conduct.”

First paragraph at the top of page 7: “Additionally, lawyers have ethical rules that require confidentiality of client information.  Thus, if a lawyer chooses to use technology in the lawyer’s practice, basic issues must be addressed.”

Bob identified a second shortcoming of the opinion via the Conclusion on page 9, that it “is directed solely at a lawyer’s own use of technology”, which “misses a critical component of the duty of technology competence – understanding the client’s use of technology”.

Here is that Conclusion: “A lawyer must consider the benefits and risks associated with using technology in representing a client.  When a lawyer uses technology in representing a client, the lawyer must use reasonable care to protect client information and to assure that client data is reasonably secure and accessible by the lawyer.”

Bob also referenced that “the ABA’s first opinion to address Model Rule 1.1, Comment 8 — Formal Opinion 477 issued in 2017 — makes the point repeatedly that the duty of technology competence encompasses the ability to understand how the client uses technology, what technology systems the client uses, and the client’s degree of technology sophistication.”

Tom noted that ABA Model Rule 1.1, Comment 8 was “horribly vague” when it was passed in August of 2012 and merely says  “ … a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  He also noted that Formal Opinion 477 dealt specifically with Securing Communication of Protected Client Information, the actual title of the Opinion and was “a specific technical discussion and not that of an overall duty of technical competence.”

Tom also noted that “everyone discussing this topic, quotes the The State Bar of California’s Formal Opinion No. 2015-193 with its ‘6 things ever lawyer needs to know about technology’ emphasis”, but that opinion is positioned as “advisory only” and “specifically refers ONLY to eDiscovery matters.”  Despite the fact that California is the only state to issue an eDiscovery competence opinion, they are one of only 14(?) states now that still hasn’t adopted the ABA Model Rule for technology competence.  Go figure.

With regard to whether the Louisiana opinion implies a choice of whether or not to use technology. Tom says “I personally think that’s splitting hairs in a way the Code doesn’t intend.  Perhaps a better word would have been ‘when’ not ‘if’, but still, do we seriously think anyone is NOT using technology? I mean they could choose not to use a phone either but I’m guessing their work would diminish. Rapidly.”  And, he notes that only two states have passed a subsequent CLE requirement for gaining that tech competence, so, by that standard, nearly every state (except for Florida and North Carolina) falls short.  That may be the real indicator that we still have a long way to go on attorney tech competence across the country.

I hit the highlights of the respective arguments, but I encourage you to read each of their articles/posts for more information.

So, what do you think?  Did Louisiana miss the mark with its ethics opinion on lawyers’ use of technology?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Conclusions

Finally, I asked several of our stalwarts to address the questions I posed back in the Introduction to this article.

With regards to the question “Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?”, Craig said:

“Plaintiffs mistakenly assume they don’t have anything to preserve, process and search.  They often have much more than counsel appreciate yet lack wherewithal to deal with it.  Plaintiffs’ lawyers who fail to bring the same diligence and skill they demand from the defense to their own client’s data are easy targets for costly do-overs and serious sanctions.  Defense counsel often harbor the same mistaken assumptions about asymmetry and fail to exploit this pressure point.  That luck won’t last, so plaintiffs’ lawyers better get on the stick when it comes to defensible legal holds, collection, processing and review.”

Craig had also addressed the question “Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources?  Or does it depend on the type of plaintiff?” with his comments on shortsightedness by saying:

“… plaintiffs’ lawyers tend to rashly agree to almost anything to get something.  They accede to bad protocols, shoddy searches and dumbed-down forms of production by being in too big a hurry to get their hands-on production and start taking depositions.” 

With regards to the question “Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?”, all our experts agree that plaintiffs want native files more than defendants because they want the original metadata while defendants are far more likely to already have invested substantial sums in database technology into which they have loaded their data and can use that to screen their productions.

Lastly, with regards to question “Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting?  Should there be a model for requesting parties?”, our experts felt it leaned towards a defense model not because it was more focused on producing then presenting, but because the people who first originated it and later promoted it were defense oriented so that was their natural inclination.

A larger problem for plaintiffs’ attorneys beyond the EDRM focus is changing their paradigm from documents to data. As Craig Ball noted:

“Plaintiffs’ lawyers are hamstrung by paper presumptions unsuited to a digital universe. Lacking insight into modern information systems, they don’t know how to fight back like coders instead of cavemen.  So, they flail and whine that the production ‘just feels like it should be more’ without being able to articulate why and how or produce evidence to support their motions – crucially lacking the ability to educate the bench and secure relief.  Plaintiffs get run over roughshod trying to argue what they need to prove.”

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Tuesday, after the Memorial Day weekend.

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

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

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

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

Lack of Competence Challenges

The next most popular choice for plaintiff eDiscovery pain points was lack of competence. This point was reflected in several different ways. Craig Ball stated it most directly when he called it “the big one” and noted the failings in the Plaintiffs’ bar by saying:

“Plaintiffs’ lawyers have been slow to integrate eDiscovery into their practices, so few plaintiffs’ lawyers are conversant in the argot and processes of eDiscovery.  This isn’t a slam.  Defense lawyers can call on resources unavailable to plaintiffs’ lawyers.  A defense firm will have an eDiscovery specialist or practice group to guide them and may be able to draw on resources supplied by an insurance carrier or the client’s IT staff and the client’s in-house eDiscovery workflows, tools and teams.  How many plaintiffs’ lawyers can responsibly delegate eDiscovery to their clients?  How many have eDiscovery specialists as full-time staffers?”

But clearly, he felt the Plaintiffs’ bar wasn’t picking up the slack in those shortcomings by becoming ESI proficient themselves. As he put it, “The answers are out there; but they’re not going to find the lawyers.  The lawyers have to look for them.”

Bob Eisenberg also felt it was an often-overlooked problem with the defense side, calling it a “… lack of eDiscovery expertise and interest …”

The answer tied most closely to competence was lack of tools and/or training.  Bob linked it to his answer on competence, saying that the lack of competence:

“… results, in many instances, in a failure to deploy, on an in house basis (as opposed to transactionally), necessary eDiscovery technical tools and over-reliance on outside expertise which can result in unnecessarily costly services when eDiscovery is required and problems arising from little or no in house expertise to oversee and assure both the validity and cost-efficiency of eDiscovery.”

Craig was quite specific as to the reason this was an issue when he termed it this way:

“Virtually no one offers eDiscovery training geared to the scale, needs and resources of plaintiffs’ lawyers. The Willie Sutton Rule applies.  Service providers, CLE providers, software developers, all tend to go where they think the money is, being the big firms and big corporations.  Providers shy away from plaintiffs’ lawyers out of fear of being blackballed by corporate clients and, understandably, because plaintiffs’ lawyers need more handholding and support.  Too, the collection, processing and review tools on the market are frequently priced out-of-reach to the solo and small firm practitioner and geared to the needs of producing parties.  Without tools and foundational training to explore ESI, plaintiffs’ lawyers can’t get closer to competence.”

The issue of protocols did have several mentions and was specifically called out by Jean and Drew.  Jean felt that too often protocols were misused, often being conflated with confidentiality or protective orders. Drew went even further and said that agreeing on an exchange protocol was too often “…like birthing a baby..”.

Ariana referenced the issue when she noted as her second issue “Data dumps in various formats without explanation or corresponding load files, select metadata, OCR, etc.”

For specific issues by an expert, Bob referred to a lack of understanding of their own internal IG systems by many defense counsel. Craig addressed what he called “shortsightedness” by Plaintiffs, which he described as their strong belief that “… if only they can get to the defendants’ ‘documents,’ they can make their case and prevail.” But as he goes on to say, “It’s not documents so much anymore; it’s data”, an observation clearly related to the competence issue.

Finally, Ariana bemoaned: “Inexperienced lawyers who choose not to reach out to those who have the experience, acumen, and wherewithal to go toe to toe with the opponent (especially if the opponent is sophisticated and/or is using a reliable service provider) will find themselves at a serious disadvantage.”

We’ll publish Part 5 – Conclusions – on Friday.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday and part two was last Thursday, here is the third part.

Cooperation Challenges

Now let’s turn to some of the individual responses.  As I mentioned in part two, the most popular choice for plaintiff eDiscovery pain points was cooperation. Bob Eisenberg, like several others, had an answer that bordered on the protocol issue, saying that:

“… there is, it seems, frequently, an almost cavalier attitude to understanding eDiscovery technical aspects and a lack of necessary skills in connection with the subject of forms of production, for instance. This sometimes extends to eDiscovery jurisprudence, as well and leads to inefficiencies and lack of defensibility in the production of ESI.”

Drew had a similar response in saying that the lack of cooperation was often manifested in a “hard line attitude” with a common approach by defense teams of saying that their proposal was an  “…industry preferred standard” with no room for negotiation or, alternatively, wrangling over minutiae of details such as metadata or load file separators.

Both Jean and Ariana mentioned the example of a repeated insistence on the use of search terms in the blind by Defense teams. As Ariana stated,

“Application of search terms that are unilaterally selected by and applied by opponent with production that follows without QC/validation/testing and then the inevitable erected proportionality argument by the opponent that it need do no more.”

Craig had an interesting response that seemed to address cooperation so I counted it there, when he said that,

“As well, plaintiffs’ lawyers do an abysmal job of drafting requests with the specificity and precision needed to forestall successful proportionality objections.”

Finally, both Craig and Drew had an answer that addressed motion practice, Craig with his reference to the ongoing use of outdated boilerplate pleadings by both sides and Drew with his comment regarding “an increased focus by Defense teams on arguing ‘discovery about discovery’ motions, especially with regard to 30(b)(6) depositions.”

We’ll publish Part 4 – Lack of Competence Challenges – on Wednesday.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was Tuesday, here is the second part.

Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys

With regard to my question regarding the top 3 pain points in plaintiffs’ eDiscovery work, I thought that the most common answer or problem would be something technical such as exchange protocols and/or load files.  But the clear winner was actually cooperation. The issue of protocols came in behind that along with competence, followed by lack of tools.  After that each of the people responding had an answer somewhat unique to themselves.

Here are the actual answers from each of the experts regarding the top 3 pain points for plaintiffs:

  • Craig: Short Sightedness, Competence, No tools/training
  • Bob: Cavalier Attitude, No knowledge of IG, Lack of tools
  • Drew: Cooperation, Protocols, Motion practice
  • Jean: Producing party issues, Protocols, Search terms
  • Ariana: Competence, Data Dumps, Search terms

Before I look at each of the responses, I should note that Craig Ball had a very insightful overview about the general differences between plaintiff and defense firms in eDiscovery.

“The challenges faced by plaintiffs’ lawyers confronted by eDiscovery flow from structural differences in practice.  Plaintiffs’ lawyers operate as small firms and solos who finance their cases and are compensated on contingency.  So, plaintiffs’ lawyers tend toward frugality (as they are spending their own money) and shy away from capital expenditures that cannot be reliably expensed against the matter. Plaintiffs’ lawyers tend not to possess (or need) the costly in-house IT operations of large defense firms and, crucially, plaintiffs’ lawyers don’t have large support staffs for IT and litigation support because the cost of same can’t be spread across hundreds or thousands of lawyers.”

“Without in-house eDiscovery teams at the ready, plaintiffs’ lawyers are more apt to “wing it” or seek expertise only when obliged to do so on an ad hoc basis.”

We’ll publish Part 3 – Cooperation Challenges – next Monday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held tonight(!) at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets – it’s not too late!  You can even buy tickets at the door!  And, remember, it’s for a great cause.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Approximately 2/3 of my consulting practice revolves around issues with ESI production. Much of that work involves asymmetrical cases where one side, typically corporate defendants, has the vast majority of discovery. And since my experience is not untypical, what we see in eDiscovery practice is a heavy focus in the eDiscovery world on defense strategy, both in actual practice and educational conferences.

But what about strategy for the Plaintiff’s bar? Do they have different even dramatically different needs simply because they have less ESI?  In discussing this article, I was asked the following questions which we will consider below:

  • Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?
  • Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources? Or does it depend on the type of plaintiff?
  • Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?
  • Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting? Should there be a model for requesting parties?

To research this issue, I decided to begin by asking several attorneys with Plaintiffs’ side experience, past and present, the following question, “What would you say are your top 3 pain points in plaintiffs’ eDiscovery work?”

My query went to the following attorneys:

  • Craig Ball, well known consultant, ESI expert, Special Master, former plaintiffs’ attorney and author of the Ball in Your Court blog;
  • Ariana Tadler, Managing Partner at Milberg Tadler Phillips Grossman LLP & Founding Principal at Meta-e Discover
  • Bob Eisenberg, Director, eDiscovery & Information Governance at Larson Security LLC and Program Director at the Cleveland-Marshall College of Law (CMLaw) eDiscovery Professional Certificate Program
  • Drew Ashby, Wrongful Death and Catastrophic Injury Trial Attorney at The Cooper Firm
  • Jean Martin, head of the Morgan & Morgan Complex Litigation Group in Wilmington, North Carolina

In this paper, we will take a look at their responses and comments regarding the biggest eDiscovery challenges facing plaintiff’s attorneys, as follows:

  1. Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys
  2. Cooperation Challenges
  3. Lack of Competence Challenges
  4. Conclusions

We’ll publish Part 2 – Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys – on Thursday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held this Thursday, May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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

Twenty-One Points, Less Than 350 Words: eDiscovery Best Practices

Yesterday, I wrote about whether judges, like lawyers, should have an explicit technical competence requirement as well.  Leave it to Craig Ball to take a somewhat complex technical concept and break it down to the fewest possible words – i.e., in a “nutshell”.  Hey, judges!  This might be a good place to start!

As Craig notes in the latest blog post on his terrific Ball in Your Court blog (Electronic Storage in a Nutshell), he finished the E-Discovery Workbook for the 2019 Georgetown E-Discovery Training Academy (which we covered here).  The readings and exercises in the Workbook “plot the path that evidence follows from the familiar information items called ‘documents’ that lawyers use in court back to the featureless stream of binary electrical impulses common to all information stored electronically.”  While the Workbook is nearly 500 pages, the technology of eDiscovery is its centerpiece, and Craig has added a 21-point synopsis of the storage concepts, technical takeaways and vocabulary covered.

I won’t steal his thunder and go into all 21-points, but it starts from the premise that “Common law imposes a duty to preserve potentially-relevant information in anticipation of litigation” and ends with the understanding that “Hashing facilitates identification, deduplication and de-NISTing of ESI in e-discovery”.  In between are concepts about things like storage media, how computers store data, how file types and file formats are identified, different types of metadata, what happens to files when they’re deleted and how they can be recovered, and so forth.  21 points, comprised of only 349 words (that’s the count you get when you copy and paste them into Word – sans outline, at least).  And, you thought that “Cliff” was good at summarizing large amounts of text (think about it).  Sometimes, you feel like a nut!  ;o)

With regard to the Georgetown E-Discovery Training Academy, Craig notes (as he did in our blog post covering the coming Academy) that no member of the Academy faculty is compensated and that they are all volunteers.  Which is pretty incredible considering that some of them are devoting up to a week to teach eDiscovery concepts.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held next Thursday May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Do you feel you have an adequate understanding of technical concepts like electronic storage?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

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

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