Close
Enter your
text here

Federal eDiscovery Rules

Alon Israely, Esq., CISSP of BIA: eDiscovery Trends

This is the third of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Alon Israely. Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA. Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and corporations on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security. Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

I didn’t get to spend as much time on the floor and in the sessions as I would like because, for me, LTNY has become mostly meetings. On the one hand, that doesn’t help me answer your question as completely as I could but, on the other hand, it’s good for ALM because it shows that there’s business being conducted. A big difference between this year and last year (which may be reflective of our activity at BIA, but others have said it as well), is that there has been more substantive discussions and deal-making than in the past. And, I think that’s what you ultimately want from an industry conference.

Also, and I’m not sure if this is because of attrition or consolidation within the industry, but there seems to be more differentiation among the exhibitors at this year’s show. It used to be that I would walk around LegalTech with outside investors who are often people not from the industry and they would comment that “it seems like everybody does the same thing”. Now, I think you’re starting to see real differentiation, not just the perception of differentiation, with exhibitors truly offering solutions in niche and specialized areas.

As for whether ALM should consider moving the show, absolutely! It seems as though the last few years that has been one of the conversation topics among many vendors as they’re setting up before LegalTech as they ask “why is this happening again” with the snow and what-not. We’ve certainly had some logistics problems the past couple of years.

I do think there is something nice about having the show early in the year with people having just returned from the holidays, getting back into business near the beginning of Q1. It is a good time as we’re not yet too distracted with other business, but I think that it would probably be smart for ALM to explore moving LTNY to maybe the beginning of spring. Even a one-month move to the beginning of March could help. I would definitely keep the show in New York and not move the location; although, I would think that they could consider different venues besides the Hilton without affecting attendance. While some exhibitors might say keep it at this time of year to coordinate with their release schedules, I would say that’s a legacy software answer. Being in the SaaS world, we have updates every few weeks, or sooner, so I think with the new Silicon Valley approach to building software, it shouldn’t be as big a deal to match a self- created release schedule. Marketing creates that schedule more than anything else.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I think that they’re going to pass Congress. I’ve been focusing on the changes related to preservation as it seems that most noteworthy cases, especially those involving Judge (Shira) Scheindlin, involve a preservation mistake somewhere. For us at BIA, we feel the Rules changes are quite a validation of what we’re doing with respect to requiring counsel to meet early to discuss discovery issues, and to force the issue of preservation to the forefront. Up until these changes, only savvy and progressive counsel were focused on how legal hold and preservation was being handled and making sure, for example, that there wasn’t some question eight months down the road about some particular batch of emails. The fact that it is now codified and that’s part of the pre-trial “checklist” is very important in creating efficiencies in discovery in general and it’s great for BIA, frankly, because we build preservation software. It validates needing an automated system in your organization which will help you comply.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I hate to sound pessimistic, and obviously I’m generalizing from my experience, but it feels like attorneys are less interested in learning about eDiscovery and more interested in being able to rely on some sort of solution, whether that solution is software or a service provider, to solve their problems. It’s a little bit of a new “stick your head in the sand” attitude. Before, they ignored it; now, they just want to “find the right wrench”. It’s not always just one wrench and it’s not that easy. It is important to be able to say “we use this software and that software and this vendor and here’s our process” and rely on that, but the second step is to understand why you are relying on that software and that vendor. I think some lawyers will just say “great, I’ll buy this software or hire this vendor and I’m done” and check that check box that they now have complied with eDiscovery but it’s important to do both – to purchase the right software or hire the right vendor AND to understand why that was done.

Certainly, vendors may be part of the problem – depending upon how they educate. At BIA, we promote TotalDiscovery as a way of not having to worry about your preservation issues, not having data “fall through the cracks” and that you’ll have defensible processes. We do that but, at the same time, we also try to educate our clients too. We don’t just say “use the software and you’re good to go”, we try to make sure that they understand why the software benefits them. That’s a better way to sell and attorneys feel better about their decision to purchase software when they fully understand why it benefits them.

What are you working on that you’d like our readers to know about?

As I already mentioned, BIA has TotalDiscovery, our SaaS-based preservation software and we are about to release what we call “real-time processing”, which effectively allows for you to go from defensible data collections to searching that collected data in minutes. So, you can perform a remote collection and, within a few minutes of performing that collection, already start to perform eDiscovery caliber searches on that data. We call it the “time machine”. In the past, you would send someone out to collect data, they would bring it back and put it into processing software, then they would take the processed data and they’d search it and provide the results to the attorneys and it would be a three or four week process.

Instead, our remote collection tool lets you collect “on the fly” from anywhere in the world without the logistics of IT, third-party experts and specialized equipment and this will add the next step to that, which is, after collecting the data in a forensically sound manner, almost immediately TotalDiscovery will allow you to start searching it. This is not a local tool – we’re not dropping agents onto someone’s machine to index the entire laptop, we’re collecting the data and, using the power of the cloud and new technology to validate and index that data at super high speeds so that users (corporate legal departments and law firms) can quickly perform searches, view the documents and the hit highlights, as well as tag and export documents and data as needed. It changes the way that the corporate user handles ECA (early case assessment). They get defensible collection and true eDiscovery processing in one automated workflow. We announced that new release here at LegalTech, we’ll be releasing it in the next few weeks and we’re very excited about it.

Thanks, Alon, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

Don’t Get Judge Peck Started on Rule 502(d) Orders: eDiscovery Best Practices

As I noted a couple of weeks ago on this blog, LegalTech® New York 2015 (LTNY) earlier this month had three free judges panel sessions that were CLE or Ethics credit eligible, that included several notable judges, including Judge Andrew J. Peck. These sessions covered the judges’ review of top preservation decisions for 2014, their thoughts on the proposed FRCP amendments and their opinions of what’s wrong with discovery today. In each of those sessions, you heard these questions from Judge Peck at one point during the session.

“How many of you use Federal Rule of Evidence 502(d) non-waiver orders? Or, if you’re inside counsel, (how many) instruct your outside counsel to do so?”

In the last session, fellow panelist and Judge Frank Maas asked a follow-up question, which drew a big laugh: “How many of you have been asked that question at this conference by Judge Peck?”

For those who don’t know, here is the text of FRCP Rule 502(d): “Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.”

In one of the sessions, Judge Peck discussed the significance of Rule 502(d), as follows: “it is a rule that says you don’t have to be careful, you don’t have to show that you’ve done a careful privilege screening, and it says that if the court enters a 502(d) order, it’s a non-waiver of privilege in that case and it’s a non-waiver of privilege in any subsequent state or federal case, even with different parties.”

While making it clear that “I’m never saying that you shouldn’t be as careful as possible to protect your client’s privilege”, Judge Peck related a story of one case where a firm had a potentially privileged group of documents and the associate was reviewing the documents late at night, creating two piles – one for privileged, one for not privileged – got up to get a drink, came back and got the piles mixed up, resulting in privileged documents being inadvertently produced. Naturally, he said, the other side “didn’t just let them off the hook” about whether that waived the privilege or not and there were motions back and forth about it, which a 502(d) order would have eliminated.

With regard to any potential downsides to filing a 502(d) order, Judge Peck made it clear that “in my mind, there is no downside to having such an order”, noting that the only downside he has heard is that “if you’re before the wrong judge, the famous Neanderthal judge that everyone worries about, that judge might say that you need to produce all your documents next week and you don’t need to do a privilege review.” But, he dismissed that as unlikely and, noted that it is “against the rules”.

Judge Peck doesn’t just advocate use of 502(d) orders, he provides a sample order on his page in the Southern District of New York web site, noting that “it’s a simple two paragraph order – the first paragraph gives you the 502(d) protection to the fullest extent and the second paragraph essentially says that nothing in this order will serve to prevent you from doing a careful review for privilege, confidentiality or anything else.” He acknowledged that he “stole that (second) paragraph from a lawyer presenting at the Georgetown conference a few years ago”.

Judge Peck also mentioned The Sedona Conference Commentary on the Protection of Privileged ESI (released last year, it can be downloaded here), which not only includes his sample order, but another (longer) example as well.

So, what do you think? Do you use 502(d) orders in your cases? If not, why not? Please share any comments you might have or if you’d like to know more about a particular topic.

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

James D. Zinn, Managing Director of Huron Consulting Group: eDiscovery Trends

This is the second of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is James D. Zinn. James is Managing Director of Huron Consulting Group. James is responsible for leading Huron Legal’s technology vision and strategy globally. He directs the practice’s software engineering, information technology, and product management teams. James is responsible for driving innovation by identifying and incubating emerging technologies and technology-driven solutions with relevance to Huron Legal. He has more than twenty years of experience developing and delivering services and solutions to clients.

{Editor’s Note: Because of travel issues, James did not make it to LTNY this year, but we were able to re-schedule the interview for after the show.}

What are your general observations about LTNY this year and about emerging trends in general for 2015? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

While I didn’t make it to the show, from what I’ve heard from my colleagues, all of the themes from last year seem to be continuing to mature, including information governance and the convergence of IG and discovery. Also, the focus on security certainly took a step forward this year and the use of predictive coding and other analytical technologies has become a perennial topic and has continued to move forward. So, what I saw was a continued maturing and growth of last year’s themes, which I think will continue throughout 2015.

As for the possibility of moving LTNY to a different time of year, I think that’s a big change. Certainly, New York is much nicer in the fall than in the winter, so I’d love to see a change from that perspective. Realistically, I think that there is a lot of inertia behind the current scheduling, so it would be a big change and disruption to the industry to try and move it.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I don’t think there will be any roadblocks. I think the proposed changes to the Federal rules are useful and I think we’re already starting to see the impact as our clients have started to act consistent with the proposed changes. So, I don’t really see any challenge with them being adopted and incorporated into current practices; in fact, I think that adoption has already begun.

Some of this could be due to the pending rules changes and some could be due to the maturing of organizations and the industry in general. We have seen the increased use of technology to try to wrestle down the volumes of information. We’re seeing more targeted collection, more targeted use of analytics earlier in the process to reduce data volumes, even before the more traditional review stages begin. We are seeing an increasing number of projects where the data volumes are getting culled much more quickly than they have in the past. The days of collecting large volumes and dumping those large volumes indiscriminately into the discovery process and then sorting it all out are evolving into much more careful efforts. As a result, we see the downstream benefits already starting to appear where there’s less need for brute forcing your way through a corpus of documents.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I think that there has been a continued progress in that area. Our client attorneys that we see on a regular basis are absolutely more knowledgeable about eDiscovery, aware of the issues associated with it and how to address those issues more efficiently. From our view, there’s a clear maturing of that knowledge in the industry.

What are you working on that you’d like our readers to know about?

At Huron Legal, we’re continuing to try to support these trends by offering technology everywhere where it can improve the process and make the process as cost-efficient as possible. We’ve continued, much as the industry has, to try to advance and mature those solutions. I mentioned predictive coding earlier and that has been a recurring theme for years and I think predictive coding technology has slowly continued to get better and easier and, as a result, become more adopted within the industry. We’re also seeing a lot more interest in security and with the increase in security breaches and those breaches becoming more publicized, there has been a lot more interest from our clients in understanding how we’re protecting their data, as well as what steps they can also take to protect their data. So, we have a lot of exciting things going on in that area as well.

Also, a little outside the eDiscovery realm but closely related, is cost management. We recently acquired a technology company called Sky Analytics, which focuses on helping lawyers, predominantly corporate law departments, to analyze and understand their external spend (of which discovery is a large component). It helps them to evaluate the efficiency of the services that are being provided by their outside counsel. This fits in well with our efforts to support organizations in managing their legal costs by using analytics and technology to provide meaningful, real-time insight. We’ve made some big strides in this area in the past few months and it will continue to be a significant focus for Huron Legal.

Thanks, James, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine™. Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation support arena. Brad has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions. He’s also my boss! 🙂

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

LTNY seemed reasonably well attended this year and I think it was a good show. I have noticed a drop in the number of listed exhibitors though, from 225 a couple of years ago to 199 this year. Not sure if that’s a reflection of consolidation in the industry or providers simply choosing to market to prospects in other ways. I guess we’ll see. Nonetheless, I thought there were several good sessions, especially the three judges’ sessions that addressed key cases, the rules changes and general problems with discovery. I liked the fact that those were free and available to all attendees, not just paid ones. Not surprisingly, those sessions were very well attended.

Overall, I thought the primary focus of this show’s curriculum in three areas: information governance (which had its own educational track at the show), cybersecurity and data privacy. With the amazing pace at which Big Data is growing, I expect information governance to be a major topic for some time to come, especially with regard to the use of technology to manage growing data volumes. And, as we discussed in this blog a couple of weeks ago, data breaches continue to be on the rise and we’ve already had a major one involving over 80 million records this year. That’s also going to continue to be a major focus.

One issue at the show that I think affected several attendees was the sudden lack of meeting space. The Hilton got rid of its lobby lounge, replacing it with a smaller executive lounge limited to hotel guests. And, ALM booked up the Bridges Bar for private events throughout the show. Meetings and discussions are a big part of LTNY and I hope ALM will take that into account next year and at least make the Bridges Bar available for meetings.

As for whether ALM should consider moving LTNY to a different time of year, there are pros and cons to that. As a person who missed the show entirely last year due to weather and travel issues and was delayed a few hours this year, it would be nice to minimize the chance of weather delays. On the other hand, I suspect that part of the reason that the show is in the winter is that it’s less costly to host then. Certainly, vendors would need an advanced heads up of at least a year if ALM were to decide to move the show to a different time of year. I don’t expect that to happen, despite the recent travel issues for remote attendees.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I’m not an attorney and am no expert on the rules, but, based on everything that I’ve heard, it sounds as though they should pass. I know that large organizations are counting on Rule 37(e) to reduce their preservation burden. I think whether it will or not will depend on judges’ interpretation of Rule 37(e)(2) (which enables more severe sanctions “only upon finding that the party acted with the intent to deprive another party of the information’s use”). That section may result in lesser sanctions in at least some cases, but we’ll see. At eDiscovery Daily, we’ve covered over 60 cases per year each of the past three years, so at some point in a year or two, it will be interesting to look back at trends and what they show.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I think it’s still a battle. We continue to work with a lot of firms whose attorneys lack basic eDiscovery fundamentals and we continue to provide education through this blog and consulting to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production to them, native files with included metadata. I think it’s imperative for providers like us to continue to do what we can to simplify the discovery process for our clients – through education and through streamlining of processes and process improvement. That’s what our corporate mission is and it continues to be a major focus for CloudNine.

What are you working on that you’d like our readers to know about?

Well, speaking of has “anything been done in the past year to improve the situation”, in November, we released CloudNine’s new easy-to-use Discovery Client application to automate the processing and uploading of raw native data into our CloudNine platform. Many of our clients have struggled with having data dumped on their desk at 4:00 on a Friday afternoon and having to fill out forms, swap emails and play phone tag with vendors to get the data up quickly so that they can review it over the weekend. With CloudNine’s Discovery Client, they can get data processed and loaded themselves without having to contact a vendor, whether it is load ready or not.

The application will extract data from archives such as ZIP and PST files, extract metadata, extract and index text (and OCR documents without text) render native files to HTML and identify duplicates based on MD5HASH value. The application will also generate key data assessment analytics such as domain categorization to enable attorneys to develop an understanding of their data more quickly. And, we are just about to release a new version of the Discovery Client that will enable clients to simply process the data and retrieve the processed data to load into their own preferred platform (if it’s not CloudNine), so we can support you even if you use a different review platform.

Our do-It-yourself features such as loading your own data, adding your own users and fields, accessing audit logs and setting user rights gives our clients unique control of their review process and makes it easier for them to understand eDiscovery and feel in control of the process. Simplifying discovery and taking the worry out of it (as much as possible) is what CloudNine is all about.

Thanks, Brad, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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

Sedona Conference Updates Guide for Judges Again – eDiscovery Trends

In 2011, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. As the Preface states, “The Resources are intended to aid State and federal judges in the management of electronically stored information (“ESI”) in civil actions for which the judges are responsible”. In 2012, the Resources guide was updated. Last month, the Resources guide was updated again and the free version is available on the Sedona Conference web site.

As noted in the Preface, “Whatever the judge’s role, the Resources offer a framework for the management of ESI. This December 2014 edition expands that framework and again focuses on the “stages of litigation from the judge’s perspective,” starting with the preservation of ESI through the initial case management order (whatever that may be called in a specific jurisdiction), the resolution of discovery disputes, trial, and post-trial awards of costs.”

Also new is updated case law and other sources of information. And articles that have not been peer-reviewed, but “which are noteworthy in the opinion of the Senior Editors”, have been included in a new “Addendum.” Finally, this December 2014 edition also “includes a new, separate section on judicial ethics in the context of ESI and presents timely matters for judges to consider.” As noted in the Preface, “The Senior Editors trust that this new section will be the beginning of what will be a continuing—and evolving—dialogue on judicial ethics in the ‘Age of the Internet.’”

In addition to the Preface, the guide includes the same four sections as the 2012 version (Introduction, Review of Existing Literature on E-Discovery for Judges, General Recommendations for Judges and The Stages of Litigation from a Judge’s Perspective), as well as the new ESI-Related Ethics for Judges section and the aforementioned new Addendum.

Once again, creation of the new edition was led by senior editors Ronald Hedges and Kenneth Withers with Karen Van Allen once again serving as editorial coordinator. Judicial Reviewers were:

  • Hon. Gill S. Freeman, Circuit Judge, 11th Judicial Circuit Court, Florida
  • Hon. Elizabeth M. Schwabedissen, General Magistrate, 11th Judicial Circuit Court, Florida
  • Hon. Craig B. Shaffer, U.S. Magistrate Judge, District of Colorado
  • Hon. Thomas J. Shields, U.S. Magistrate Judge, Southern District of Iowa
  • Hon. Stephen J. Smith, Administrative Law Judge, State of California

All three versions of the Cooperation Proclamation: Resources for the Judiciary are available here. You’ll have to provide your information to download, but that will get you added to the Sedona Conference email announcement list, which is always a good thing.  You can submit comments or proposed changes by emailing to the co-editors at kjw@sedonaconference.org or r_hedges@live.com.

So, what do you think? Is this an improved guide over the one from two years ago? 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. eDiscoveryDaily 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. 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.

Our 1,000th Post! – eDiscovery Milestones

When we launched nearly four years ago on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis.  Now, after doing so each business day (except for one), I’m happy to announce that today is our 1,000th post on eDiscovery Daily!

We’ve covered the gamut in eDiscovery, from case law to industry trends to best practices.  Here are some of the categories that we’ve covered and the number of posts (to date) for each:

We’ve also covered every phase of the EDRM (177) life cycle, including:

Every post we have published is still available on the site for your reference, which has made eDiscovery Daily into quite a knowledgebase!  We’re quite proud of that.

Comparing our first three months of existence to now, we have seen traffic on our site grow an amazing 474%!  Our subscriber base has more than tripled in the last three years!  We want to take this time to thank you, our readers and subcribers, for making that happen.  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

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 University, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, 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!

I also want to extend a special thanks to Jane Gennarelli, who has provided some serial topics, ranging from project management to coordinating review teams to what litigation support and discovery used to be like back in the 80’s (to which some of us “old timers” can relate).  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 999 previous posts.  Now is your chance to catch up!  😉

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.

Court Orders Sharing of Costs for Forensic Examination of Plaintiff’s Emails – eDiscovery Case Law

In Zeller v. So. Central Emergency Med. Servs. Inc., 1:13-CV-2584 (M.D. Pa. May 20, 2014), Pennsylvania Magistrate Judge Karoline Mehalchick used the Zubulake seven factor test to rule that the costs for restoring and searching the plaintiff’s emails should be shared, up to a maximum contribution by $1,500 by the plaintiff.

In this wrongful termination case based on plaintiff’s claims of retaliation by the defendant after the plaintiff took a leave of absence under the Family and Medical Leave Act (FMLA), the parties began the eDiscovery process to recover the plaintiff’s emails and asked the Court to resolve the issue of “first review” of documents identified as a result of an agreed upon search of Plaintiff’s emails, and the matter of cost-sharing.

The plaintiff asserted that he is entitled to a “first review” of all documents to be produced while the defendants asserted that after forensic retrieval of emails from Plaintiff’s email account, all non-potentially privileged documents should be forwarded directly to the defendants to save time.  Noting that “Plaintiff has no obligation to produce emails that are wholly irrelevant to either party’s claim or defense” and that broad search terms such as the plaintiff’s wife’s name was used, Judge Mehalchick ruled that the plaintiff was entitled to a “first review” of the results of the forensic examination of his email account.

Regarding the cost sharing request by the defendants, Judge Mehalchick referenced Fed. R. Civ. P. 26(b)(2)(B) and determined that the data requested was inaccessible without the forensic examination and used the seven factor balance test below for cost-shifting from Zubulake v. UBS Warburg to decide whether forensic examination costs should be shifted.  The factors are:

  1. The extent to which the request is specifically tailored to discover relevant information;
  2. The availability of such information from other sources;
  3. The total cost of production, compared to the amount in controversy;
  4. The total cost of production, compared to the resources available to each party;
  5. The relative ability of each party to control costs and its incentive to do so;
  6. The importance of the issues at stake in the litigation; and
  7. The relative benefits to the parties of obtaining the information.

Judge Mehalchick stated that “the parties were unable to identify the total cost of production of the search, compared to the amount in controversy and the resources to each party”.  However, with regard to the other five factors, she ruled that “the request is specifically tailored to discovery relevant information”, that “there is no other source which could possibly be available”, that since the parties have agreed on a forensic examiner “neither party has any more ability than the other to control the cost”, that “the information sought is important to the issues at stake in the litigation” and that “it is to the benefit of both parties to obtain the information sought”.

As a result, Judge Mehalchick found “that some cost-shifting is appropriate” and ruled “Plaintiff and Defendant should share equally in the cost of restoring and searching Plaintiff’s emails, up to a maximum contribution by Plaintiff of One Thousand Five Hundred Dollars ($1500.00).”

So, what do you think?  Was the Zubulake test applied appropriately?  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.

Revised Federal Rule Amendments One Step Closer – eDiscovery Trends

As noted by a recent article in Law Technology News, a revised package of amendments to the Federal Rules of Civil Procedure (FRCP) is one step closer to being adopted.

The article Standing Committee OKs Federal Discovery Amendments, written by Thomas Allman, notes that last month, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the 2010 Civil Litigation Conference, held at Duke University’s law school, sponsored and organized by the advisory committee (a.k.a., the “Duke Rules Package”), addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation.

The amendments include significant changes from the original proposals, reflecting feedback from three public hearings that drew more than 120 witnesses and 2,356 written comments.  Many of those comments were focused on controversial Rule 37(e) – discussed on this blog here.

As the article notes, “[t]he next stop is a review by the Judicial Conference in September. If approved, the U.S. Supreme Court will be asked to review and vote on whether to send the amendments to Congress. If that occurs before May 2015, the individual rules will become effective in December 2015, unless Congress disapproves.”

Here is a link to the agenda and the text of the rules as adopted that was published in the Standing Committee’s meeting Agenda Book.

Click here, here, here, here and here for previous posts on this blog regarding the proposed rules changes.

So, what do you think?  Will the rules amendments pass this time?  Should they?  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.

Everything You Wanted to Know about Forms of Production, Don’t Be Afraid to Ask – eDiscovery Best Practices

Last week, we discussed the upcoming Georgetown E-Discovery Training Academy, which will be held starting this Sunday and mentioned in Craig Ball’s excellent blog, Ball in Your Court.  His latest post offers a very comprehensive guide to forms of production that covers all aspects of forms of production from the different types of forms to how to request electronically stored information (ESI) from opposing counsel.

The Lawyer’s Guide to Forms of Production, described by Craig as a “public comment” and “beta” version, “explains the significance of forms of production and lays out options to guide the reader in making sensible selections. It seeks to help lawyers eschew the wasteful and outmoded practice of downgrading digital information to paper-like forms and, instead, embrace forms that function—that is, forms of production that preserve the integrity, efficiency and functionality of digital evidence.”

It’s a 46 page Guide, with another 20 pages of attachments, and covers numerous topics, including:

  • Growing Tension between parties striving to receive productions in useful formats and producing parties seeking to “downgrade” the production format to paper-like images;
  • Options for Forms of Production including Paper, Images, Native, Near-Native (such as enterprise e-mail, databases and social networking content which can’t be produced as-is) and Hosted Production (more frequently, parties turn over access to ESI in a hosted application, typically cloud-based);
  • Federal Rules handling of forms of production, including Rule 34(b)(1)(C) of the Federal Rules of Civil Procedure which allows a requesting party to “specify the form or forms in which electronically stored information is to be produced”;
  • Learning the Language of Forms where Craig breaks down a fictional example of a typical production proposal from opposing counsel and the pitfalls of the proposed formats;
  • Load Files, what they are, different format examples, and how they are used;
  • The Case against Native Format and how each component of the case is debunked;
  • The Case against Imaged Production and at least half a dozen “needless” expenses associated with it.

Craig also covers best practices for crafting production requests that are modern and clear and “cut the crap” of “including, but not limited to” and “any and all” that “don’t add clarity” and are “lightning rods for objection”.  He addresses Bates numbers, redaction and “exemplar” production protocols (in Appendices 2 and 3).  And, many other topics as well!  It’s a very comprehensive guide that covers introductory and advanced topics alike to help lawyers develop a much better understanding of how ESI is stored, organized and should be requested.

You can download a copy of the guide in PDF format here.  It will be interesting to see what feedback Craig gets on his “beta” version.

So, what do you think? Have you dealt with forms of production disputes with opposing counsel?  If so, how did you resolve them?  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.

300,000 Visits on eDiscovery Daily! – eDiscovery Milestones

While we haven’t served over 300 billion burgers like McDonald’s, we have provided something to digest each business day for over 43 months.  We’re proud to announce that on Friday, eDiscovery Daily reached the 300,000 visit milestone!  It took us a little over 21 months to reach 100,000 visits and just over 22 months to triple that to 300,000!  On to 500,000!

When we reach key milestones, we like to take a look back at some of the recent stories we’ve covered, so, in case you missed them, here are some recent eDiscovery items of interest from the past six weeks.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules: By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed regarding the proposed Federal Rules amendments.  Much of the controversy related to Rule 37(e)(1)(B), which included a hotly debated amendment that the court may impose sanctions or order an adverse jury instruction, but only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith,” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.  Since then, Rule 37(e) has been modified, not just once, but twice.

Government Attorneys Have eDiscovery Issues Too: From a confidence standpoint, 73% of respondents feel as confident or more confident in their ability to manage eDiscovery in their cases.  But, 84% of respondents feel somewhat or not at all effective in their agency’s ability to deal with the challenges of eDiscovery and 80% of respondents feel somewhat or not at all confident that if challenged their agency could demonstrate that their ESI was “accurate, accessible, complete and trustworthy.  These and other survey findings are available here.

Cloud Security Fears Diminish With Experience: According to a recent survey of 1,068 companies conducted by RightScale, Inc., concern about cloud security diminish as users gain more experience using cloud-based services.  Learn more about organizations’ cloud habits here.

Daughter’s Facebook Post Voids $80,000 Settlement: As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.  That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

New California Proposed Opinion Requires eDiscovery Competence: If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

Predictive Analytics: It’s Not Just for Review Anymore: One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology (and discussed here) addresses how analytics can be used to optimize Information Governance.

How Do You Dispose of “Digital Debris”? EDRM Has Answers:  Those answers can be found in a new white paper discussed here.

Also, hackers took Typepad, our platform for hosting the blog, down for a bit.  But, we’re back and better than ever!

Want to get to know some of your litigation support colleagues better?  Leave it to Jane Gennarelli, who has provided profiles here, here, here, here, here and here.

We’ve also had 11 posts about case law, just in the last six weeks (and 296 overall!).  Here is a link to our case law posts.

Every post we have ever published is still available, so the blog has become quite a knowledge base over the last 43+ months.  Sometime this summer, we will publish our 1,000th post!

On behalf of everyone at CloudNine Discovery who has worked on the blog and other publications that have picked up and either linked to or republished our posts, thanks to all of you!  We really appreciate the support!  Now, on to the next topic.  🙂

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

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