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Federal eDiscovery Rules

Rule 37(e) Amended Again – eDiscovery Trends

Last month, we discussed significant changes made to Rule 37(e), which had been hotly debated (as reflected in our recent thought leader series) and was the source of many of the 2,354 public comments filed regarding the recent proposed rules changes.  Earlier this month (on April 10th and 11th), the Advisory Committee on Civil Rules met to review proposed amendments to the Rules of Civil Procedure, including recommended changes to those proposed amendments as published for public comment and further changes were made to Rule 37(e).

Discussion regarding Rule 37(e) occurred on the second day of the two-day meeting and a final version of the proposed amended rule was presented for the consideration of the full Advisory Committee (also known as the “Duke Subcommittee”), which was ultimately approved by that committee without opposition and will now be submitted to the Standing Committee for its review and potential approval.  Here is the new, much simpler, proposed rule:

(e)  FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.  If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

(1)  Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

(2)  Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A)  presume that the lost information was unfavorable to the party;

(B)  instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)  dismiss the action or enter a default judgment.

During the meetings, the Advisory Committee also unanimously approved proposed amendments to Rules 1, 4, 16, 26, and 34.  The proposed amendments will be considered at the next meeting of the Standing Committee on May 29-30.

The full report of the meetings including the text of the proposed amendments to rules 1, 4, 16, 26, and 34 are available in the Advisory Committee’s 580 page(!) Agenda Book here.  Discussion of Rule 37(e) starts on page 369 – you can click on Tab 3 in the Agenda to jump straight to that section.

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

So, what do you think? Are the latest changes an improvement?  Will there be more changes? 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.

After 2,354 Public Comments, One Major Change to the Proposed Federal Rules – eDiscovery Trends

During our recently concluded thought leader interview series, we asked each of the interviewees their thoughts about the proposed eDiscovery rules amendments to the Federal Rules of Civil Procedure (FRCP) that were published last August for public comment.  And, of course, they had plenty to say.  The majority of their comments related to the proposed amendment to Rule 37(e) which was intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation.  Now, it looks like the numerous public comments that were filed have resulted in a change to the rule.

By the February 15 deadline for the comment period, no less than 2,354 public comments had been filed.  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.

Two subcommittees made significant changes to the rule, dropping the conditions for sanctions, which would appear to restore authority to the judiciary to decide the appropriateness of sanctions.  Here is the revised proposed rule in full:

Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. Absent  exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. If a party failed to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, the court may:

(1) Order measures no greater than necessary to cure the loss of information, including permitting additional discovery; requiring the party to produce information that would otherwise not be reasonably accessible; and ordering the party to pay the reasonable expenses caused by the loss, including attorney’s fees.

(2) Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice.

(3) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

(4) In applying Rule 37(e), the court should consider all relevant factors, including:

(A) the extent to which the party was on notice that litigation was likely and that the information would be relevant;

(B) the reasonableness of the party’s efforts to preserve the information;

(C) the proportionality of the preservation efforts to any anticipated or ongoing litigation; and

(D) whether, after commencement of the action, the party timely sought the court’s guidance on any unresolved disputes about preserving discoverable information.

So, what do you think? Are the changes an improvement?  Did the subcommittees go far enough? 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.

Craig Ball of Craig D. Ball, P.C. – eDiscovery Trends, Part 2

This is the eleventh (and final) of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 1,500 presentations and papers. Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and just ended nine years writing a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court.  He currentlyblogs on those topics at ballinyourcourt.com.

As usual, Craig gave us so much useful information that we decided to spread it out, yesterday was Part 1 of the interview and here is the rest!

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I have to marvel at the ingenuity of my colleagues who have so effectively deflected the obligation to learn much of the nuts and bolts of eDiscovery.  A mastery of buzzwords and buzz concepts is not the same thing.  You can almost see the eagerness of some to deploy certain ideas that they have picked up as though simply encanting a buzz word is the same as applying it in a practical fashion.  Lawyers focus on the work product privilege as a means to avoid transparency in essential applications.  They trot out something that they’ve distilled from Zubulake, now ten years old.  Again, they are fighting the last war.  They are still over-preserving in shocking ways and still issuing legal holds that are boilerplate.  They’re still failing to give useful information in legal hold notices (as they can’t tell people to do what they themselves don’t know how to do).  We’re seeing little creativity and a copious quantity of uninspired mimicry.  It isn’t working.

The problem I have with this is that it is that eDiscovery isn’t that hard.  We make it hard.  We sit down in a room and start talking about the moving parts and everyone starts getting very depressed.  They’re desperate to seize upon a one-dimensional solution – they want to find a hammer that they can bang against everything.  It isn’t that hard.  Though there are strategies that you need for different kinds of evidence, there are recognitions you must make that there are different users that use data in different ways.  Different levels of fragility.  But, we’re not talking about learning Chinese pictographs here, we’re talking about a small handful of common productivity file types and a tiny handful of mechanisms for communication.  In any other industry, they would be so happy to have so little complexity to deal with; but in our industry, any complexity at all seems to be overwhelming.  And, it frustrates me because, if lawyers would devote a bit of of genuine energy and time to this, and if we made more resources available to them, we could really make not just incremental strides, but great leaps in reducing the cost and anguish associated with electronic discovery.  It’s not that hard, it doesn’t have to be that expensive.  But, it does require a certain minimal fluency to understand what you’re dealing with.

We all work with digital information, all day, every day.  Right now you are taping me on a digital recorder, we’re having a conversation on digital phones where the conversation is being converted into packets and it’s moving back and forth.  I’m staring at two screens now with my email on the left screen and the internet on the right screen with my smart phone and my tablet close by.  That’s modern life.  If we don’t approach electronic discovery with the same engagement that we do with digital tools in other aspects of our lives, we’re doomed to continue to commit malpractice in both how we approach eDiscovery and how we spend our client’s money on eDiscovery.  And, it’s just sad, it remains deeply sad.

We aren’t deploying the right tools.  Soon, our opponents and courts will realize that we’re fighting the last war and that it’s very easy to step around our defenses.  We haven’t put the tools–the weapons in the hands of the infantry – the working stiff lawyer – to allow them to begin to deal with electronic discovery.

How is it going to get better?  Right now, the only path I see is going to be the enthusiast, the individual lawyer who – out of boredom, ambition or aversion unemployment – decides that they’re going to craft a new career path for themselves.  I hear from one of those lawyers nearly every day, so that means that I hear from 150-200 lawyers each year who tell me that they want to do what I do.  That’s great, but the resources for them to achieve that, to get the information they need, are still sparse in the context of law practice.  You can go out there and learn forensics and information systems and IT.  But, to integrate the parts of those disciplines that are attendant to eDiscovery, it’s difficult.  We’re still having electronic discovery taught, by and large, by people who consider it a body of law and who shun its technology aspect.

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

My mission for 2014 is wake our readers up on the issue of form of production.  That’s a little silly because your readers are among the most enlightened of consumers of electronic discovery.  But, helping requesting parties change the archaic way they ask for ESI has been a big part of what I want to accomplish in 2014.  And, helping them to make sensible choices about forms of production so that they can get complete and utile forms, That’s not always a native form, but it’s rarely static images.  I know that is something that I’ve jawed about for a long time and I imagine there are quite a few people that are tired of hearing me speak about it, but I’m finally starting to get some traction.

Judges are starting to listen and understand.  As we chip away at this absurd practice to turn everything into electronic paper, what becomes clear is that the processes that we’ve developed to produce spreadsheets and PowerPoints in native forms apply with equal force and success to Word documents, and now you realize that you’ve covered the Microsoft Office complement of data.  Those are the files that tend to make up the most common attachments to emails and, oh, by the way, emails can be provided in functional formats that are also complete.  Everyone technologist knows what’s in an email.  It has to have a certain complement of features to be called an email and traverse the internet.  Why don’t we just start providing emails in forms that function?  Helping parties to exchange forms that function is my mission for 2014.

I don’t expect that by next year that I will tell you that everyone has awakened to the fact that native and near-native productions are cheaper and better.  Let’s face it, there are a lot of people conserving very old tools and workflows who will not give them up until they are forced to give them up.  There are all sorts of changes for the greater good that decent, intelligent people resist too long, just as they did with women’s suffrage and civil rights.  I don’t mean to trivialize civil rights by comparing them to litigants’ rights, but changes must and shall come to pass.  We must evolve to become Juris Doctor Electronicus: modern, digitally-capable counsel.

Thanks, Craig, 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 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.

Ralph Losey of Jackson Lewis, LLP – eDiscovery Trends

This is the tenth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Shareholder and the firm’s National e-Discovery Counsel. Ralph is also a prolific author of eDiscovery books and articles, the principal author and publisher of the popular e-Discovery Team® Blog, founder and owner of an online training program, e-Discovery Team Training, with attorney and technical students all over the world, founder of the new Electronic Discovery Best Practices (EDBP) lawyer-centric work flow model. Ralph is also the publisher of LegalSearchScience.com and PreSuit.com on predictive coding methods and applications.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

The presentation that I did at the show was called the “John Henry moment”, and I presented with Cliff Dutton, who is a technology expert at AIG (not an attorney, but an expert with technical processes in electronic discovery). The other panelist was Jason Baron (whose own thought leader interview from last week can be found here).  Cliff, Jason and I were examining at LegalTech what comes next after predictive coding.  What is the inevitable direction that technology is taking?  That was really the theme behind the “John Henry moment”.  A similar question was asked by other panels, but, and of course I’m prejudiced, I think our panel had some particularly good, unique insights.

Before I get into the answer that emerged from our panel, I will say that other panels were focusing on other parts of the technology world.  They were talking about things like data breach and privacy – those are two big issues that we’ve seen in the past, but they seem to be emerging even stronger than before and were big issues in the keynote speech.  It appears to be a surprise to some people that there is crime on the Internet.  Many of us are quite aware of that – I had to change my credit card just a couple of months ago.  So, data breaches, either on purpose by a hacker or unintentional through negligence, and data privacy are certainly big issues.

These were not the issues that Jason, Cliff and I talked about.  Instead, we were talking about the advancement into the second machine age.  This is something that has been discussed by the New York Times and also in a best-selling book called The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies.  It has to do with the application of ever more sophisticated computer algorithms that allow us to replicate what the human mind is capable of doing and to automate not just manual labor, but automate the mental labor of mankind.  Of course, what we’re focused on is its application to lawyers – what we lawyers do that can now be improved, enhanced and automated.

Now, in the past, the big discussion has been on predictive coding and this is certainly an example of the application of advanced computers and what is being called “analytics” –  taking big data and understanding the implications of big data.  Examples outside the law include Netflix, that takes your viewing history and tells you about a new movie they have that you’re going to like, and Amazon who takes you buying history and suggests books that you’re going to like.  They’ve both analyzed your data.  So, what we were discussing is how this concept will impact the law.  That’s really an important topic that our panel addressed that I had an opportunity to follow up on recently in my blog (that parodied the movie Minority Report, which had something called “pre-crime”), called “pre-suit”.  Not “pre-crime”, but “pre-suit”.  I’ve already (surprisingly) been able to get the URL for presuit.com and it discusses corporate counsel using what I call “smart data” to predict and prevent litigation before it happens.  That’s what our panel discussed and I think that’s really the next big thing (with all due respect to people that are focused by privacy and data breach issues).  So, I think the next big thing is to apply data analytics and the latest advancements in artificial intelligence to get a much better handle and control on litigation than we have today.

The idea behind “pre-suit” is essentially to win your next lawsuit before it’s even filed.  Jason Baron also recently wrote an article about it in Law Technology News (Escape From the Island of E-Discovery), which I didn’t know about when I wrote my article – he showed it to me the day of our panel session.  He talks about three examples of using data analytics for something other than predictive coding: the first two are data remediation for information governance purposes and records classification to, for example, classify and file your emails for you.  The third one he calls “bad conduct detection” – I call it the use of smart data to predict and prevent a cause of action from occurring – basically, when employees within your company are doing something that could be a basis for a lawsuit.

He wrote about it in the article and, independently, I had the same idea I (at least I think I did – Jason is alleged to have mind control abilities!).  In my blog, I wrote about how this “pre-suit” concept will work and this isn’t based on science fiction, it’s based on technology that’s available today.  We have the technology to detect patterns of wrongful activity that are there.  In corporate email and text messages, we can detect when an employee may be harassing another employee.  It’s far more than just looking for certain words that should never be said in email, but also patterns so you can bring in an employee for counseling before damage is done, before a reputation is ruined or a lot of emotional harm happens and way before a complaint is filed by the victim.

So, this is really the next big thing – to stop lawsuits before they mature.  In other words, why should we depend on plaintiff’s counsel to come to the door of corporate counsel to let them know that they’ve found this group of employees in the company that have been discriminated against or are receiving wrongful treatment?  Find about it in advance and fix it yourself – much more effectively and much cheaper.  It’s essentially good citizenship for corporations to police their own activities rather than having outside attorneys find it and air their “dirty laundry” in a courtroom.  That’s the vision that our panel came articulated and that I think is the next big thing.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I wrote a blog post about it and I did predict that they would pass this year, but the level of controversy seems to be heating up at the last minute.  The commentary that Judge Scheindlin filed with the Rules Committee is just one indication that it’s escalating.  It’s very intense and it may be a closer question than I thought.  As I’ve written about it, my view is that some of these changes may not even be constitutional and that’s something that former Judge Ron Hedges believes – that some of the rules have gone too far in violating separation of powers, that the rules are going into substantive law.  I’m concerned how political the Federal Rules have become.  The judicial branch is supposed to be a separate branch of government, not part of the legislative branch.  So, I must say that I share Judge Hedges’ concerns on that and, even though I still think it will be approved, I am not pleased by how politicized the whole process has become..

Having said all of that, the reason that I’m not having the same emotional reaction that Judge Scheindlin and other commentators have had – on both the right and the left (frankly, this has become a liberal vs. conservative issue) – is that I don’t think it will have the profound impact that some people fear.  Ultimately, rules changes don’t change things as much as people expect them to do so.  Certainly, the 2006 rules changes didn’t lead to a huge impact, and regardless of what gets passed here, I don’t think it will have a huge impact either.  There is really a cultural change that is needed for eDiscovery to work right, rather than creating yet more rules that people can misunderstand and argue about.  In my opinion, we’re going to get more of a change by focusing on education, doing the kind of thing that you do, bringing the word to people so that they can understand what’s going on.  I think that does more good than creating more rules, especially when they’re particularly complicated rules.

One good result of the new rules is the emphasis on proportionality and cooperation.  I think those are good things, it doesn’t hurt to have them in the rules and that will encourage people to do what the rules already require – cooperate with each other and always have proportionality in mind.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

You pointed out the resources that are already there.  Do we need more and better resources?  I suppose.  And, I’ll still continue to work on that as, I’m sure, the other educational leaders that you’ve mentioned will do as well.  I think one of the most important new efforts to come on the scene is the one started by another Losey, Adam Losey, and his foundation IT-Lex.  That’s an educational foundation effort that is more oriented toward younger lawyers.  That is ultimately the answer.  Old fogies like me are going to retire and they just don’t want to learn.  They’re closed minded and, frankly, they’re getting more and more irrelevant every day.  We need to focus on the next generation and I’m really proud of Adam in how he’s doing a good job of carrying the torch on that.

I’m seeing this in my own family – first with my son Adam at Foley and now with his wife, my daughter-in-law, Catherine Losey who is now at Littler doing eDiscovery.  I can tell you that the next generation gets it and the hope is in the future.  I think you have to take a longer term view of things.  I tried cajoling lawyers my age into doing it and it doesn’t work, honestly.  In the book that I mentioned before, The Second Machine Age, delays like this in learning how to use technology have always been.  This is nothing new and it’s not unique to the legal industry.  It typically takes ten to twenty years for business or any general cultural activity to adapt to the new technology and figure out how to use it.

For people like me, it has been an exercise in patience because I’m ready to do everything yesterday.  But, the reality is that it will catch up, it’s starting to catch up and those of us who do know the technology needn’t despair that 98% of the bar still doesn’t know what we do.  That’s OK.  The number of people who do know will grow rapidly, particularly as people retire.  There are plenty of smart people my age who don’t get it, but they understand that they don’t get it, so they ask me to do it or they ask someone else who does get it to do it.  That is a fundamental ethical responsibility that good lawyers get.  Eventually, you’re going to have a field of specialists that focus on eDiscovery, especially complex artificial intelligence and other technology.  That’s how we will get at the truth.  There will be a specialty bar that other lawyers use who don’t do that.  But, right now, we’re still in a shakedown period.  We may see things speed up because of more eDiscovery malpractice cases – there have already been a few and there will be more.  And, competition will force the people that don’t get it out and allow opportunities for the next generation and the few in my generation that do get it.  Overall, I’m optimistic, because I don’t think there’s anything unique about lawyers to keep them from getting it; there are plenty of younger lawyers that do get it.  They are our future and I’m optimistic for that future.

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

Well, my online training program (e-Discovery Team Training) is still alive and well.  An encouraging sign is that we’re starting to have smaller firms signing up four, five or even six attorneys and paralegals.  So, I will keep eDiscovery Team Training in place as a cheaper, intro level, A to Z, course about eDiscovery for people that can’t afford to take the more expensive courses.  It’s an inexpensive alternative for people who do want to learn, that want to remain relevant and that understand that, in today’s world, it’s all about constant training, re-training and learning.

As for the more advanced training that I provide, I find that you can’t teach predictive coding just by writing and I’ve written maybe 35 essays on the subject.  I find it’s much more effective for me to teach it the good-old fashioned way – the way that Abe Lincoln learned law – with a one-on-one apprenticeship.  In other words, I show my attorneys by doing.  With something as complicated as predictive coding, coming in and consulting and actually helping lawyers do it is more effective than writing about it.  But, with the simple intros to eDiscovery, the writing is still effective, so I’ll keep on doing that too. I’ll keep writing on the advanced topics too, but with the understanding that many of the methods of predictive coding are too complex to teach my words alone.

Thanks, Ralph, 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 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.

Tom O’Connor of Gulf Coast Legal Technology Center – eDiscovery Trends

This is the ninth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom O’Connor.  Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology.  Tom’s involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation.  Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

In my opinion, LegalTech has become a real car show.  There are just too many vendors on the show floor, all saying they do the same thing.  Someone at the show tallied it up and determined that 38% of the exhibitors were eDiscovery vendors.  And, that’s just the dedicated eDiscovery vendors – there are other companies like Lexis, who do other things, but half of their booth was focused on eDiscovery.  The show has sections of the booths down one long hall with sales people standing in front of each section and it’s like “running the gauntlet” when you walk by them.  It’s a bit overwhelming.

Having said that, a lot of people were still getting stuff done, but they were doing so in the suites either at the hotel or across the street.  I saw a lot of good B-to-B activities off the sales floor and I think you can get more done with the leads that you get if you can get them off the sales floor in a more sane environment.  At the same time, if you’re not at the show, people question you.  They’ll say “hey, what happened to the wombat company?”  So, being at the show still helps, at least with name recognition.

One trend that has been going on for a while is that “everybody under the sun” is doing eDiscovery or says that they’re doing eDiscovery.  The phenomenal growth of the number of eDiscovery vendors of all sizes surprises me.  We see headlines about providers getting bought out and some companies acquiring other companies, but it seems like every time one gets acquired, two more take its place.  That surprised me as I expected to see more stratification, but did not.  Not that buyouts aren’t occurring, but there’s just so much growth in the space that the number of players is not shrinking.

Another trend that I noticed which puzzled me until I walked around the show and realized what was going on, is the entry of companies like IBM and Xerox into the eDiscovery space.  It puzzled me until I took a good look at their products and realized that the trend is to get more throughput in processing.  Our data sets are getting so big.  A terabyte is just not that unusual anymore.  Two to five terabytes is becoming typical in large cases.  500 GB to 1 terabyte is becoming more common, even in a small case.  Being able to process 5 to 10 GB an hour isn’t cutting it anymore and I saw more pressure on vendors to process up to a terabyte (or even more) per day.  So, it makes sense that companies like IBM and Xerox are going to get into the big data space for corporate clients because they’re already there and they have the horsepower.  So, I see the industry focused on different ways to speed up ingestion and processing of data.

That has been accompanied by another trend: pricing pressures.  Providers are starting to offer deals like $20 per GB all in with hosting, processing, review, unlimited users, etc.  From the other end of the spectrum of companies like IBM and Xerox are small technology companies, coming not from legal but from a very high-end technology background, looking to apply their technology skills in the eDiscovery space and offering really discounted prices.  I’ve seen a lot of that and we started to see it last year, with providers starting to offer project pricing and getting away from a per GB pricing model.  I think we’re going to see more and more of that as the year goes along.  I hesitate to use the word “commoditized” because I don’t think it is.  It’s not like scanning – every eDiscovery job is different with the types of files you have and what you want to accomplish.  But, there will certainly be a big push to lower the pricing from what we’ve been seeing for the 1-3 years and I think you’re going to see some pretty dramatic price cuts with pressure from new players coming into the market and increased competition.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I’ve been astonished that after the first wave of comments last fall that there has been little or no public comments or even discussion in the media about the rules changes. The public comment period closes tomorrow (Tom was interviewed on February 14) and you know the saying “March comes in like a lion and goes out like a lamb”?  That seems to be how it is with the end of the comment period.  I think I saw one article mentioning the fact that the comments were closing this week.  It has been a surprising non-issue to me.

For that reason, I think the rules changes will go through.  I don’t think there has been a concerted effort to speak out against them.  As I understand it, the rules still won’t be enacted until 2016 because they still have to go back to the committee and through Congress and through the Supreme Court.  It’s a really lengthy period which allows for intervention at a number of different steps.  But, I haven’t seen any concerted effort mounted to talk against them, though Judge Scheindlin has been quite adamant in her comments.  My personal feeling is that we didn’t need the new rules.  I think they benefit the corporate defense world and change some standards.  Craig Ball pointed out in a column last year that they don’t even address the issue of metadata, which is problematic.  I don’t think we needed the rules changes, quite frankly.  And, I wrote a column about that last year.  In a world where I hear commentators and judges say that 90% of the attorneys that appear in front of them still don’t understand ESI or how things work, clearly if they don’t understand the current rules, why do we need rules changes?  Let’s get people up to speed on what they’re supposed to be doing now before we worry about fine tuning it.  I understand the motivation behind getting them enacted from the people who are pushing for them, why they wanted them and I suspect they will pretty much go through as written.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I absolutely agree with that.  I think the obvious remedy is to educate them where lawyers get educated, which is in law schools and I think the law schools have been negligent, if not grossly negligent, in addressing that issue.  Browning Marean and I went around to the different law schools to try to get them to sponsor a clinic or educational program in this area eight or nine years ago and were rebuffed.  Even to this day, though there are some individuals that are teaching classes at individual law schools, with the exception of a new program at Northeastern, there has been no curriculum devoted to technology as part of the regular law school curriculum.

Even the programs that have sprung up: the wonderful job that Craig Ball and Judge Facciola does at Georgetown Law School is sponsored by their CLE department, not the law school itself.  Michael Arkfeld has a great program that he does for three days down at the Sandra Day O’Connor law school in Arizona State University (covered on the blog here).  But, it’s a three day program, not a course, not a curriculum.  It’s not a focus in the curriculum of the actual law school itself.  We’ve had “grass roots” efforts spring up with Craig’s and Michael’s efforts, what Ralph Losey and his son Adam have been doing, as well as a number of people at the local level with CLE programs.  But, the fact is that lawyers get educated in law schools and if you really want to solve this, you make it as part of the curriculum at law schools.

There has always been an attitude on the part of law schools.  As Browning and I were told by the dean of a top flight law school several years ago, “we train architects, not carpenters”.  I myself was referred to, face-to-face, by a group of law professors as a “tradesman”.  They said “Gee, Tom, this proposal is a great idea, but why would we trust the education of our students to a tradesman like you?”  There’s this sort of disdainful academic outlook on anything that involves the hands-on use of computers and that’s got to change.  Judge Rosenthal said that “we have to change the paradigm” on how we handle things.  Lawyers and judges alike have to look at things differently and all of us need to adjust how we look at the world today.  Because it’s not just a legal issue, it’s a social issue.  Society has changed how it manufactures, creates and stores information/data/documents.  Other professional areas have caught onto that and legal education has really lagged behind.

I mentioned the eDiscovery Institute at Georgetown Law School, which happens every June.  But, they cap the attendants at about 60.  Do the math, there are about a million lawyers in the country and if you’re only going to educate 60 per year, you’ll never get there.  I also think that bar associations could be much more forthright in education in this area and requiring it.  Judicial pressure is having the best results – judges are requiring some sort of certification of competence in this area.  I know of several Federal judges who require the parties to state for the record that they’re qualified to address eDiscovery.  Some of the pilot projects that have sprung up, like the one at the University of Chicago, are going to require a self-certifying affidavit of competence (assuming they pass) stating that you’re qualified to talk about these issues.  Judges are expecting lawyers, regardless of how they learn it, to know what they’re talking about with regard to technology and not to waste the court’s time.

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

I just recently published a new guide on Technolawyer, titled LitigationWorld Quick Start Guide to Mastering Ediscovery (and covered on this blog here).  There are a lot of beginner’s guides to eDiscovery, but this one doesn’t really focus on eDiscovery, it focuses on technology, answering questions like:  How do computers work?  What are bits, bytes, RAM, what’s a gigabyte, what’s a terabyte, etc.

I literally had a discussion about an hour ago with a client for whom we have a big case going on in Federal court and there’s a large production, over a terabyte being processed by our opponents in the case right now.  I asked the client how much paper he thought that was and he had no idea.  The next time we start arguing cost in front of the judge, I’m going to bring in a chart that says a gigabyte is X number of pages of paper so that it has some meaning to them.  So, I think it’s really important to explain these basic concepts, and we in the technology world forget quite a bit how little many lawyers know about technology.  So the guide is designed to talk about how electronic media stores data, how that data is retrieved and explains some of the common terms and phrases used in the physical construction and workings of a computer.  Before you even start talking about eDiscovery, you need to have an understanding of how computers work and how they find data and where data can reside.  We throw around terms like “slack space” and “metadata” casually without realizing that not everyone understands those terms.  This guide is meant to address that knowledge gap.

I’m continuing some of my case work, of course.  Lastly, I recently joined a company called Cavo, which is bringing a new eDiscovery product to market that I’m excited about.  Busy as always!  And, of course, there are always good things going on in New Orleans!

Thanks, Tom, 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 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.

Jason R. Baron of Drinker Biddle & Reath LLP – eDiscovery Trends

This is the eighth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Jason R. Baron.  An internationally recognized speaker and author on the preservation of electronic documents, Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice.  Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration (NARA) and as trial lawyer and senior counsel at the Department of Justice.  He was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

I think that it was clear, not only to me but to many other attendees that I spoke with at the show, that there was a greater focus and attention this year on Information Governance.  It’s the new black.  You saw that especially in the educational sessions.  Now my good friend Ralph Losey, in a recent posting on his brillilant blog e-Discovery Team®, referred in passing to the topic of Information Governance as “boring” – however, what I think he meant to say is that if Information Governance is simply viewed as the current buzzword for what constitutes electronic recordkeeping best practices, that would be unfortunate.  It’s a lot more profound than that.

In my view, the types of analytics that we use in eDiscovery for predictive coding have an important role in Information Governance as well.  The research that I had some role in, coming out of the TREC Legal Track, and subsequent articles by Maura Grossman, Patrick Oot and others, have all helped to crystallize what constitute best practices in the eDiscovery search and document review space.  But the knowledge that we have gained about analytics in these various research studies, as validated in recent court opinions like Da Silva Moore, are applicable to a much broader application than merely in eDiscovery practice.

That is to say, we can all be smarter about using analytical methods to solve lots of legal issues which arise outside of the narrow band of eDiscovery but inside the broader realm of Information Governance.  Ralph discussed this in a recent blog when he referred to the idea of using “presuit” analytics to predict and prevent lawsuits from happening in the first place.  Ralph’s column shows that he certainly gets it, and that I can count him in as a true believer in pre-litigation analytics being accomplished to lower corporate overall risk including the prevention of potential lawsuits.

So, the hottest topic at LegalTech was Information Governance and, as part of that discussion, a conversation about what best practices are from a technology perspective in the space.  What other trends  out there were noted?

Other themes at LegalTech that reflect trends specifically affecting legal and eDiscovery practice: First, it’s clear to us that the cloud is becoming a dominant paradigm for the storage of big data, and that we need to continue to understand how eDiscovery in particular can be optimized in cloud environments.  Second, there is increased attention to the notion of technological competence, in light of the amendments to the Model professional rules of responsibility, including the comment to Rule 1 about the need for attorneys to be technologically competent in keeping up with the law.  That comment certainly means something in the eDiscovery space.  Beyond those two, we saw a conversation about new technologies and new ideas that are happening and that need to be absorbed into the practice of law – for example, sessions on drones and sessions that noted the “Internet of things”.  In all sorts of ways, these various discussion threads show that there are a thousand different ways to collect data in the world, all of it is ESI and all of it needs to be factored in when we’re litigating cases and when we’re trying to govern the data that organizations hold.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

Well, my crystal ball tells me not to make predictions.  However, we’re now up to 700 comments in the last week leading up to the February 15, 2014 deadline for responding. [Editor’s note: over 2,000 comments were submitted by the actual deadline.]  Those comments are sharply divided between a community of plaintiffs’ counsel who question the necessity for rules change, and the defense bar, which at least a part of which strongly urges rules changes in the belief that the present rules encourage over-preservation of evidence, and that more in the way of limitations imposed on discovery should now be imposed.  So, that’s the battleground.  I think a good bet in the space is that the language that emerges is going to be much like the amendments currently proposed, but no one knows for sure.

My view about the amendments is a different one than what has been reflected in most of the comments, which I have put forward on behalf of the Information Governance Initiative (see below).  The view that I have is that there are aspects of the rules amendments that can be supported, and certainly Federal Rule of Civil Procedure 1 should be amended to incorporate the notion of parties cooperating.   However, what I believe to be of greater importance than rules change is a recognition on the part of the judiciary as well as all litigants that the volume and complexity of data is doubling every couple of years, and the technological environment is one that should include advanced tools to help remediate the severe challenges we all face in terms of the preservation of ESI. We live in a world of exponential growth of big data and we need to deal with that fact at a more foundational level than with rules changes for litigation.  So, I urge that we pay attention to both best practices as a matter of technology in the maintenance of big data in electronic systems, as well as continued education of the bench and bar on how to deal with this new reality — because we’re not going back to the 20th century.  The world of exabytes that we live in is only getting bigger and we have to deal with it.  In my mind, I’m attempting to carve out a middle ground where the rules debate is not as draconian or as starkly imagined as parties would reflect in the comments, but rather that we need to step back and ask more fundamental questions.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Every survey that I know of drives this point home, that there is a “bubble” that some of us practice in where we go from conference to conference, acting as if the 2006 rules amendments are “old hat,” whereas the concept of how to deal with ESI is something new and novel to many others.  So, there is a learning curve that exists where the greater part of the legal community needs to become better versed in the more advanced aspects of eDiscovery.  By now, everyone knows about email potentially being relevant evidence, but not very many people could step through a workflow on predictive coding.  Nor do they necessarily have to do so in a large swath of cases that, candidly, are not a candidate for the most advanced methods.  We need to apply some degree of proportionality analysis to competence and the level of competence that someone needs is dependent on the complexity of the case.  If there is giant litigation that involves billions of documents, then you really need to understand the technical issues at hand, and what questions to ask, to ensure that you’re using the most advanced and efficient search and document review methods.  On the other hand, if you have a case that is only a couple of hundred documents that is in state court or some local jurisdiction, then these more advanced methods are obviously not needed.

So, I think there is an aspect that you’re exactly right to point out, that this is all still new, and we are still maturing in mapping out defensible ediscovery practices in the post-2006 Rules amendment world. But, increasingly, as I have said, we live in a world of digital information.  Whether it’s a family law case involving the exchange of emails or an employment case or even a hit and run case involving GPS data, attorneys are necessarily finding that there cases do indeed involve aspects of discovery where digital or electronic evidence is material and important.  To that extent, all lawyers need to know something about how to preserve, how to collect, how to review and how to produce ESI.  It is clear to me as the years go by that the bar is getting raised in a greater and greater number of cases and that more and more lawyers need to be competent with respect to basic eDiscovery.

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

Here’s one thing I’m very excited about.  Bennett Borden, who is chair of the Information Governance and eDiscovery practice here at Drinker Biddle, and Barclay Blair, who runs the company ViaLumina and is a thought leader in the Information Governance space, have teamed up to found the Information Governance Initiative and invited me to act as Co-Chair.  The Initiative is a vendor-neutral industry consortium and think tank which has as its mission a goal of fostering discussion about best practices in the Information Governance space.  We have received a large outpouring of goodwill in the form of individuals joining up as members (it’s free to join, by the way), as well as corporate sponsors who have products and services that address IG issues.  And we hope through various platforms that there will be a better smarter dialogue about how to deal with the challenges of big data and Information Governance using many of the analytical methods that I alluded to earlier.  This is exciting to be part of and I’m delighted, after joining Drinker Biddle, to be able to work with Bennett, Barclay, as well as Jay Brudz and others, to attempt to provide some measure of thought leadership in this space.

I should note that there are other great organizations who are also putting on programs, including The Sedona Conference, which has put out a wonderful Commentary on Information Governance spearheaded by Sedona WG1 chair Conor Crowley, that’s freely available for download.  Sedona and ARMA have also teamed up to put on an information governance conference coming up in April 2014 in Florida.  These are all great to advance the ball.    Hopefully, all of our collective efforts will help to jump start serious conversations around optimizing IG.  For my part, I certainly would encourage individuals to look up the IG Initiative and participate in future activities. (See www.iginitiative.com.)

Thanks, Jason, 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 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.

George Socha of Socha Consulting LLC – eDiscovery Trends

This is the seventh of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011, he and Tom Gelbmann converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.  George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

I don’t think I saw any obvious new trends.  It was a year of adjustments, rather than anything dramatic.  When something dramatic shows up at LegalTech, usually it is because someone on the provider side has managed to catch a marketing wave and then everyone else is trying to ride that wave.  There was the early case assessment wave, the predictive coding wave, but no new wave yet.  The challenge is predicting what the new wave will be – like trying to predict what will go viral on the web.  Although I am sure there is a lot of speculation about what the next big thing will be, if you look at past projections in the industry we frequently got it wrong.  My guess is that the new wave will be a new wave precisely because it will come from an area we haven’t been paying much attention to.

Nonetheless, here are some thoughts.  One, we are seeing consolidation on the software side of the industry.  In any given area, review for example, we are seeing a limited number of offerings accounting of a substantial portion of the market.  Part of what is changing here is that specific products are not dominating only because of appealing mixes of functions, features, pricing and marketing.  They are establishing their holds by way of ecosystems built around their offerings – add-on tools, services offered in connection with the products, workflows built around the products, and the like.  As anyone who has followed legal technology knows, those who are on top today most likely will not remain there forever, so we can expect to see some of today’s leaders drop down the list as others elbow their way up.

There continues to be much discussion about consolidation on the services side.  There is a limited degree of consolidation to the extent that there are a number of mergers and acquisitions that have taken place, not just over the last year, but over the last few years.  Were those acquired organizations not replaced by others, then we would be having real consolidation.  But, I continue to see new service providers enter the marketplace – at least as rapidly as other providers are acquired, merged or disappear.  So, there is no meaningful consolidation on the service provider side – not if consolidation is defined as fewer players in the market.

Another thing that I’m seeing is the beginning of a change in focus.  Although many of the folks at LegalTech continue to cast production as the ultimate objective of e-discovery, a growing number are taking a newer – or really an older – approach.  They are looking to how one might tease a story out of the data.  This makes a lot of sense, because discovery isn’t intended to be a process unto itself; it’s meant to be part of a larger litigation or dispute resolution process.  The reason that you’re engaging in discovery or, more specifically, in eDiscovery is to help bring a matter to a satisfactory resolution.  I’m seeing more discussions and presentations about how eDiscovery fits into that larger context.  This change in focus could become a trend or it could fizzle out.  I think it ought to become a trend, but we’ll see.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I think the second question is the more important question.  I don’t see the proposed amendments achieving the type of meaningful change that people advocating for them hope to see. I think many people pushing for the changes feel the 2006 rules changes weren’t effective.  If you look at why the 2006 changes have not been effective, I think it’s largely because people haven’t paid attention to them.  If that is the case, what good will changing the rules again accomplish?

I think that a more effective approach would be more robust education for both judges and practitioners, with that education, especially the judicial education, coming from a broader range of educators than has been the case in the past.  If we focus on judicial education, judges should be hearing from the attorneys who are actually doing the work.  They also ought to be hearing from the corporate, governmental and similar people who are the end clients. And, they ought to be hearing from the service and software providers.  As long as education to judges doesn’t include strong and well thought out insight from those three areas, the judges are going to find it difficult to get the education they need to be more effective in implementing the 2006 changes – never mind any changes that may come from the must recent push to amend the rules.

By the way, it would be unfair to lay this problem at the foot of the judiciary.  By and large, judges do and should turn to litigants to better understand the particulars of “where the rubber hits the road” with electronic discovery issues in matters before them.  The litigants themselves, the lawyers, are doing a terrible job of educating the judges because, by and large, they have not attempted to educate themselves about such aspects of eDiscovery as the 2006 rules changes.  If the lawyers appearing before judges haven’t educated themselves about the 2006 changes, why do we think it will be any different with changes in 2014?

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

This is a problem.  I wish I had a quick and easy answer, but I don’t.  Most attorneys don’t know enough about the theory or practice of eDiscovery.  For all the conferences and webinars held on such topics, they don’t seem to reach the bulk of practicing attorneys.  I suspect that the only real answer is time – and a lot of it. .

No matter have good the content delivered at programs such as LegalTech, it is clear that these programs are mostly attended by a small cadre of people who keep running into each other. Look at the first two days at LegalTech; they are like a class reunion.  You see all your old friends, people in the “bubble” who deal with electronic discovery a lot.  It’s our “same old, same old”.  Most of us could spend 2 1/2 days debating one small arcane issue within eDiscovery. There are over 2 million attorneys practicing in the US and they are not in this “bubble” – maybe, at most 2,000 are.

Then you get the third day of LegalTech.  Every year I hear the providers complaining that’s the day when people show up looking for baubles and other little giveaway items.  Providers bemoan that those attendees are not there for substantive content and they’re not there to really understand what the exhibitors have to offer – they just want free stuff to fill their shopping bag.  And, in some way, the real problem is that those are exactly the people we need to reach and those are clearly the people we are not reaching.

How do we reach those folks?  Many ask that question, but so far not have found an effective answer.  eDiscovery needs to “cross the chasm” (as in Geoffrey Moore’s book Crossing the Chasm where you have that big gulf between the early adopters and the rest of the people).  In the larger legal world, we have not crossed the chasm at all when it comes to eDiscovery.  Within the eDiscovery world, you could argue that we’ve crossed the predictive coding chasm, or you could argue that we haven’t, but at least it’s a debate.  I don’t think there is even a debate in the larger legal world as to whether eDiscovery has crossed the chasm, it has not.

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

Several things: We keep pushing EDRM forward.  For the last four or five months we have put out a monthly EDRM update highlighting the many things we are working on – frameworks, standards and resources.  In addition, we have begun the process of making EDRM a 501(c)(6) trade organization.  There are several reasons for doing this, but the main reason is to ensure that EDRM is well positioned so that we can look forward not just to the beginning of our tenth year in April, but to our 20th and our 30th years.

I’m also in the early stages of launching a new group called ABIKOS, a service and technology firm focused on the eDiscovery space.  Our objective is to take discovery back to what it was meant to be – with the focus on bringing matters to a satisfactory resolution

As for Apersee, we’re in the early stages of Apersee version 3.  We have some planning and discussion to do, but we hope in the coming months that you’ll see a greater emphasis on the areas that have actually been of interest to folks, changing the focus to the portions of it in which people have found the greatest value.

Thanks, George, 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 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.

Adam Losey of IT-Lex.org – eDiscovery Trends

This is the sixth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Adam Losey.  Adam is president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

There were several trends that I saw at the show this year.  I think there was more emphasis this year on data security and privacy.  I don’t think that anybody is doing anything all that differently when they’re hosting data.  I think that they were – hopefully – going through the same steps for security before, but they’re emphasizing security more in marketing.  There was a lot more emphasis on ease-of-use solutions.  Candidly, I was expecting for some of the providers that are in this space to merge or go away and I know some of that is happening, but I saw increased competition in the marketplace in a variety of fields, which surprised me a little bit, but is good for the market.  I also saw more dedicated web-based litigation hold management products out there than I had seen in the past.  Unfortunately, I wasn’t able to go by every booth, so my experience is largely anecdotal and I may have missed some other trends.

As for trends for 2014, on the legal front, I expect more litigation on spoliation.  Again, my experience is anecdotal, but I happen to handle that particular issue a lot.  I’m seeing it pop up in a lot more cases; if not spoliation itself, then requests by parties to dig into their opponents’ search and review processes, just as a matter of course in the litigation if it is of any size.  In the past, I didn’t see that for any case of any size- it typically only came up in larger cases.  I don’t know if that’s decreased trust or a “trust but verify” Reagan type of approach, but it has become the norm in my world.  These days, many people want to do discovery on your eDiscovery, again just as a matter of course.  Typically, in the past, you’d only see that come up if there was any issue or deficiency with a production where someone could point to something wrong with your efforts.  But, it may not always be appropriate to do discovery about discovery, short of any issue identified with a production.

On the vendor front, I see a lot of vendors that have “click and drag” tools and solutions for small or medium sized firms or cases, which I think are really cool and I’m looking forward to playing with some of them.  From ingest to the end, a single person or lawyer can handle everything, clicking and dragging files to get them processed.  Obviously, sometimes issues come up in processing, so I’m wondering how the vendors handle those.  But, there’s a lot of cool stuff that I saw this year that I’m looking forward to playing around with.

The last trend that I see is a lot of interest and emphasis on forensic collection from mobile devices and social media collection.  That’s no surprise because in cases that I deal with, that comes up all the time.  I’ve done plenty of collections from iPhones and other devices.  The problem is that when you have those solid state drives, collections can be a little weirder and forensics can be a little more difficult.  And, social media collection is always somewhat of a “tricky bird” for a variety of reasons, not the least of which is you sometimes have a lot of layers in that onion that make it harder to collect from those sources.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

Excellent question.  I see some of the rules being approved.  I would want to fact check and make sure I’ve got the changes right, but I imagine that changes related to timing of depositions and number of witnesses and other minor procedural “quirks” will be passed, though I don’t see those as having a big impact on litigation.  I think that the number of hours per deposition is trimmed by an hour or two.  In all of the depositions that I’ve been involved, time of deposition is not a major controversial point.  If you can’t work that out with the other side, that doesn’t bode well.  But, for Rule 37(e), the rule that essentially creates a new standard for the imposition of spoliation sanctions, I hope that doesn’t pass.  I think it raises a lot of issues whether or not you think it’s necessary.  There’s a big issue about whether federal or state law governs this stuff.  When you’re litigating spoliation on a diversity case, it’s presumably governed by state law.  Or, so some cases say, others say “no, it’s a procedural issue, it’s governed by federal law”.  But, if they pass that rule, you suddenly have a new standard for spoliation in federal court, which will lead to all sort of nasty issues of “forum shopping” where people who destroy things will want to be in federal court, believe it or not.  Which is unusual, because there will be a standard that makes it difficult to get spoliation sanctions.

Judge Francis had a well-reasoned and superbly reasoned opinion addressing spoliation, where he held that “[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evidentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.” (Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y. 1991)).

It does not matter whether the spoliator was a “cackling villain twirling his mustache” or an innocent employee that pressed the wrong button.  Spoliation addresses prejudice a party suffers as a result of the destruction of evidence needed to prove a case. It doesn’t really matter to the victim what the other party’s intent was.  You just want to be put in the position where you would have been if the evidence had not been destroyed.  So, the law until now in most jurisdictions (which I think had it right) said that if you have possession, custody and control of the ESI and you knew that you should have preserved it and it gets destroyed, we’re not going to shy away from leveling the playing field based on that.  The new Rule 37(e) is going to make it night impossible for some judges to keep the playing field level.

I’m not sure if that is going to pass or not, I have no special insight into that process or those committees.  But, although we do have some chaos now in that there are different standards in different jurisdictions, but I like for judges to have flexibility generally.  I think that “bright line” rules, while they may initially have some attractiveness in uniformity, take away flexibility from the good judges we have, who are smart people.  With flexibility, I think you see justice more than if you have a hard iron rule and the conflict of law issues that are going to come up as a result will be tricky.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Well, again, my observations are anecdotal.  I’ve “drank the Kool-Aid” like many people that you’re probably interviewing.  So, most of the people that I deal with have some knowledge of eDiscovery.  But, in the Bar at large, I do think things are getting a lot better.  I think that the big barrier to education in a lot of cases is that you get a lot of eyes glazed over by a certain type of person when you start to talk about eDiscovery.  Much like my eyes might glaze over if you talk about particular provisions of the partnership tax code.  Some people love tax law – I have a friend that I went to law school with that is enamored with tax law and he’s an awesome tax lawyer.  And, he really likes that, but he doesn’t like eDiscovery.  So, it’s “different strokes for different folks”

Unfortunately, unlike partnership tax law, if you’re going to be litigating, you have to know about eDiscovery.  Ironically, my first trial was in Tax Court, on a pure tax issue, and some pretty major eDiscovery issues popped up in the middle of trial in a dramatic, surprising, way – so even the tax litigator needs to know eDiscovery basics.  So, the real challenge on eDiscovery education isn’t reaching the people who already follow this and already read the blogs – they’re well versed in it.  It’s important to provide something that’s funny and entertaining, if you can, so that you can bridge that interest gap with either humor or writing or presentation skills.  I think a lot of organizations are doing that and I feel that more people know about it now.  Certainly, the judiciary does.  The judges are very well versed in a lot of eDiscovery issues, at least generally.

But, at firms, there are some folks that don’t want to learn it, but realize it’s important, so they delegate.  In most situations, I don’t see anything wrong with that.  If you have a senior trial lawyer that’s in his 80s and he’s an excellent presenter and trial lawyer, but does not want to handle the “nitty-gritty” of eDiscovery and he brings someone on to handle that for him, I don’t see anything wrong with that.  The rules of professional conduct, at least in Florida, allow that too.  In competence, we have an ethics opinion in Florida (I think it’s 0602) that says you have a duty to competence that extends to an understanding of eDiscovery.  I think 0602 talks about metadata scrubbing and emails, but one of the ways that you can make up that competence shortfall is by involving other lawyers and having them help with the things you don’t know or understand, and I don’t see anything wrong with that.  I’ve seen a lot of companies actually (and I agree with this and love doing it), have firms or individuals just to serve as eDiscovery counsel to look over the shoulder.  They may use different firms for different litigations, but they want somebody that knows how the business works really well that can look over the shoulder of outside counsel or in-house folks in every case, which I think is a good trend.

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

There are a couple of quick points that I’d like to hit on with IT-Lex.  One, for law students and young lawyers, we have the highest paid cash prize writing competition in the country.  So, if you are a law student or know a law student, by all means, check it out or send them the link.  The cash prize is big, but it’s not the biggest part of the prize – the real prize is that the winner gets to headline at the Innovate conference, which is a huge career springboard.  Plus, they get invitations to become members.  So, I really want to emphasize the writing competition.

On top of that, our Innovate conference is going to be coming up October 9 and 10 of this year, so we’d love to see people there.  If you want to sign up as a friend of IT-Lex, you can do so for free and we always welcome involvement from folks in the community with what we do.  So, look at what we do and don’t be shy to reach out is the quick message.

Thanks, Adam, 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 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.

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

This is the fifth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done 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 their clients 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 significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

Once again, I did not see much differentiation between different exhibitors.  There was nothing that stood out to me as being a groundbreaking differentiator.  That said, it seemed a lighter show, less people.  But, even though it was a lighter number of attendees, the caliber of attendees seemed a bit higher.  This is all coming from my gut as I have no real numbers or metrics to back this up, but, the conversations we had at our booth seemed, on average to be a little more substantive than in previous years.

As for trends, there seems to be more discussion about the high-tech trends, such as cloud computing and analytic technologies.  Instead of people talking about these technologies generally, it seemed as though people were talking about these technologies more specifically.  Not to say that they were differentiated, they were still non-differentiated.  But, there were more people talking about cloud technologies and there was a big CLE about it.  And, more people were talking specifically about analytics, not just saying “you can do all of this culling”, but showing specific examples, with charts, graphics and other neat elements that indicate searching/analytics results.  So, there seemed to be a bit more specificity around technology and, together with that, advanced technology.  But, to be honest with you, there was nothing at the show that really blew my mind.  Nothing that was groundbreaking, nothing that looked like it would initiate a shift in the industry.  If anything, it felt like, other than the few specifics around high-tech, similar to previous years.

I will say that some of the attendees that I talked to, some of the GCs and outside counsel firm attorneys, said they spent more time inside the educational components at LegalTech instead of the exhibit hall.  So, as an exhibitor, that doesn’t make me overly happy to see that, but, as a knowledge leader in the industry, I’m very happy to see that.  I know that ALM has always tried to do a good job with the educational components.  And, I think this year attendees took that part of it more seriously than in the past several years.  It seemed that most of the networking that my BIA colleagues and I did was at the educational sessions, not necessarily on the floor.  I think that’s a positive indicator for the people who made it to the show.

As for general trends in 2014, I think you will see corporations start to take control of their technology, not only for in-house solutions, but also for the solutions that outside counsel will be providing to them.  Today, corporations tend to trust their outside counsel firms as to the review tools and other technologies that they use, but I think that it will be much more of a coordinated effort going forward.  The level of maturity for corporations around eDiscovery is being raised.  What the means in practical terms is that they will work more closely with their trusted vendors.  I don’t believe that corporations are going to bring everything in-house and that vendors will be out of luck, though a lot of other people believe that will happen.  I believe that services business for eDiscovery will remain strong for the next decade or longer and the dynamic of obtaining those services will morph into the corporation sitting side-by-side with the law firm making those services decisions.

That trend was evident at the show: you heard it from different vendor booths and the way that they were pitching their products and you heard it from actual in-house attorneys that were attending.  I saw at least two cases where the GC and his outside counsel attorney were walking around the show together – hopefully, the GC wasn’t getting charged for that time!  You’re starting to see corporations take more control of the reins, but not in the way we always thought where they dictate to the outside counsel what vendors to use.  Instead, it’s much more of a collaborative effort and I think you’ll see much more of that over the next several years.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I see those being incredibly important.  The more we can get specificity around what needs to happen early in a case and the more that specificity can be codified, the better off we will all be.  If you look at all of the wasted money spent over the last few years, some of that is solved by the new rules, specifically in the area of preservation.  We’re in the business of selling preservation software, so I’m excited about the potential changes.

But, if I step out of that personal perspective, the changes still make a lot of sense because, today, you still have a lot of effort being spent by parties figuring out legal hold and preservation issues.  Who was put on hold, when were holds put in place, what data was and was not preserved.  That usually happens when a problem occurs – you have a peak of expensive lawyering and legal maneuvering with motions practice, etc and typically when it’s already too late.  So, some of these new rules which are focused on discussions early in the case with respect to preservation should nip a lot of that in the bud.  Now, instead of fighting four months later after discovery closes whether some system was preserved or not, that should get covered early-on with some of the new rules that will hopefully go into effect.  So, I’m very excited about the rules changes, not only as a vendor in the space, but also as a legal professional in general.  The more efficiency that you can create early in the matter, the more money you can save and the more you can focus on the substantive issues and on the merits of the case.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

I do wholeheartedly agree.  Our industry is funny because the cost of goods sold for eDiscovery solutions and services is higher than for most other industries else because of the fact that we have to educate with almost every sale.  There are a lot of resources out there, including efforts by many respected thought leaders and all of the great blogs out there, and many providers have an educational component to their website.  So, you’re right that there are a lot of quality resources for attorneys at their fingertips, yet there are still so many attorneys that simply don’t understand it.  Most of the small business and solo practitioners market doesn’t understand eDiscovery and many GCs of mid-sized corporations don’t either.  And, frankly neither do many “corner office” partners at Amlaw200 firms.  They know about it at a high level and understand that it’s important, but they don’t know enough detail.  But, the good news is that with the advent of those educational resources and the fact that every eDiscovery provider and vendor teaches as they sell, those legal professionals don’t need to learn that much – even getting four or five feet “underneath the water” instead of thirty feet under would be helpful.

As to why they don’t know more, I don’t know.  Maybe attorneys are so used to having experts to rely on and because they feel they know enough about eDiscovery, that they don’t need to know any more detail or process understanding unless a problem arises.  I don’t have an explanation as to why, with all of these great resources available, that most legal professionals don’t have more knowledge.  Unless it’s just that they have a “technology block” and are still afraid of the technology aspects of that knowledge base.  To improve things, I believe that vendors will continue to have to sell in an educational manner, with one half of the sale educating the attorney and the other half focused on closing the deal.  And, hopefully more law schools will continue to incorporate eDiscovery into their curriculum.  But, I don’t see the issue of more knowledge across a wider audience of legal professionals getting a whole lot better anytime soon.

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

BIA continues to be focused on bringing the best technology and workflow that we can to the left side of the EDRM model – such as legal hold, preservation and ECA.  Legal hold activities such as notifying and tracking employees, interviewing custodians and creating questionnaires to do so, and suspending practices such as email auto deletion, and collection of ESI is what we’re all about.  We’ve been really integrating those areas of the left side of the EDRM into one another.  Today, TotalDiscovery employs much more of a circular workflow than it did even a year ago.  It used to be much more siloed – you would implement a legal hold and then do a custodian questionnaire and the collection.  Now, we’ve integrated those steps a lot more.  Hold flows into the questionnaire process, you can seed collections with data from the questionnaires, and so forth.  We’re also continuing to serve up as much intelligence on the data as possible.  You don’t have to wait until you get further down the right side of the model to understand the type of data you have or how much you have.  Obviously, you still need to be able to have a good review tool to perform real hard core research and analysis, but to the extent we can help attorneys more knowledgeable about their data before they get to review, the better it will be for them.  That’s our goal.  So, a lot of that comes from integrating different parts of the process and not focusing on just one area of the process, but gleaning intel from all of them and summarizing at a high level for the attorney.  Also, our enterprise features are really strong and not something we talk about a lot (but we probably should) – stuff like connecting to Active directory, Exchange and other systems – real simple to do as a default configuration.

Also, our flat fee pricing model is a source of pride for us and it’s been very successful.  Flat-fee pricing, unlimited use of functionality and overall budget predictability are values we offer and guarantee – which is unique in the market.  Also, one of the good things about BIA is that we’re a technology company and we’re always adding features – we’ve now moved to a tighter cycle with a new feature or function added every four to six weeks.  Sometimes it’s a small feature, at other times, it’s a large feature we’ve been working on for a while.  It keeps it very fresh and we’re able to do so because of the way we’ve built the product with the cloud and web technologies that we use  So, BIA continues to focus on what we’re good at – improving the workflow and functionality for the tasks compelled by companies on the left side of the EDRM model, leading up to review.

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 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.

Laura Zubulake, Author of “Zubulake’s e-Discovery” – eDiscovery Trends

This is the fourth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Today’s thought leader is Laura Zubulake.  Laura worked on Wall Street for 20 years in institutional equity departments and, in 1991, authored the book The Complete Guide to Convertible Securities Worldwide. She was the plaintiff in the Zubulake vs. UBS Warburg case, which resulted in several landmark opinions related to eDiscovery and counsel’s obligations for the preservation of electronically stored information. The December 2006 amendments to the Federal Rules of Civil Procedure were influenced, in part, by the Zubulake case. In 2012, Laura published a book titled Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here and she speaks professionally about eDiscovery topics and her experiences related to the case.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

As far as what I saw last week, there was an increase in focus on Information Governance over last year’s conference. There was also a continued interest in eDiscovery.  What I found particularly interesting is that some of the larger vendors put less emphasis on Information Governance than they did last year and more on eDiscovery this year. When I went to the vendor booths and talked to them about actual business, I got the sense that several have taken a step back from Information Governance and refocused their efforts on eDiscovery. I’m not saying this is the case with all of them, but several of them.  I was not able to find out a reason why, but I surmised from my conversations that monetizing, or creating a business around Information Governance has been difficult for some vendors. It seems they find it easier to generate business with eDiscovery.  This intrigued me.

I’m looking at it more from a business standpoint than a legal or a conference agenda standpoint. In other words, how are they actually making money in this industry? It’s still predominantly in eDiscovery, not Information Governance. I think part of that has to do with the state of the economy, which is not great and it’s difficult trying to get clients to buy certain services at this time. Information Governance is probably a tougher sell than certain technologies you have on the eDiscovery side.  This creates a real business opportunity.  Over time I think the focus will shift towards Information Governance.  Corporations will realize that eDiscovery is a subsector of Information Governance and that Information Governance is a more efficient and effective investment.

Other things that I did see at the show: clearly there was an emphasis on big data, which was expected. When I looked at the tracks, the topics included Risk and Compliance, eDiscovery, Information Governance and technology in general. This seemed to be a continuation of those topics from last year’s show – again except for Information Governance, where I did see an increased focus.

I was surprised that I didn’t see more attention in areas like healthcare, which I would have expected — given what’s going on in the country and given the planned to shift from ICD-9 to ICD-10. Although now I guess there’s a little bit of a debate about that. But, I would have thought that there would have been more emphasis on healthcare.  

As for a prediction for next year and the coming years, I think that healthcare is going to become a major focus – for Information Governance in particular.   To continue on this, it would be interesting to see other detailed sector analysis.  That is, how Information Governance (particularly in light of industry regulations) could affect the finance, utilities, and energy sectors.

I also think you’re going to see – and people have different names for this – more emphasis on applying algorithms to Information Governance and not just for eDiscovery. People use the term “predictive coding” to refer to applying algorithms to eDiscovery efforts and with Information Governance, some people call it “auto-classification.”  Essentially, it’s taking a macro view and using algorithms to help companies organize and manage their data, from the top down. So, I think you’ll start seeing more discussion on not just predictive coding for EDD, but also algorithms for Information Governance efforts.

I would say the “Internet of things” (I guess everybody has their own way to describe that) is going to become more of a focus as well. For example, Google recently purchased Nest. If you think of the implications of that, Google is going to have access to data within your home. So, I think as the “Internet of things” expands, that’s going to become more of a focus for Information Governance, eDiscovery and Risk and Compliance type issues.

Cyber security will be another trend, obviously. Security and privacy issues with regard to healthcare and the security of data at every level, whether it’s your home or business, will become increasingly important.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I contributed comments to the website. In fact, I sent my book to Senator Coons, who is in charge of the committee and I have been in contact with other individuals involved in the discussion.  I think it’s important for the decision makers to appreciate what it’s like for an individual to go through litigation. While no one wants to be in that situation, it can happen to anyone.  I’m not so sure the amendments will be approved this year — maybe by the end of this year or next year.  My personal concern is that most of what I’ve read about the debate has been dominated by the defense side.  I’m not sure that the plaintiff side has been thoroughly represented. That was the concern that I voiced when I added my comments to the website.  While I understand the business and cost implications of eDiscovery, I believe the plaintiff ‘s side needs to be properly represented in the talks. With regard to the nature of the proposals, restricting the number of depositions, having certain restrictions on time, etc., I think it’s going to make it more difficult for an individual to stand up for their rights, to actually take a stand.  

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery? Do you agree with that and, if so, what do you think can be done to improve the situation?

Generally, I agree. Based on what I’ve read, there appears to be a significant segment of the legal community that is not well informed. What do I think can be done to improve the situation? Obviously, continue to educate.   Unfortunately, I think that there are many people that won’t take the time to learn new things until they’ve been thrown into a situation and forced to learn. That’s sad, because eDiscovery has been around for so long now. It should really be part of the conversation. Law schools need to include it in their curriculum somehow so that all law students become familiar with it at some level. Also, perhaps requiring continuing education for lawyers solely dedicated to eDiscovery where they sit in classes instead of just attending a conference. When you have to take an exam and answer questions, that’s when you’re forced to learn something.

Thanks, Laura, 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 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.