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Industry Trends

eDiscovery Trends: Wednesday LTNY Sessions
 

As noted Monday and yesterday, LegalTech New York 2011 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  The show wraps up today and, by most accounts, the attitude at the show is considerably more upbeat over last year’s show.  Last chance to check out the show if you’re in the New York area!  If you can brave the weather, which hasn’t been THAT bad so far, there are still several sessions (both paid and free) available and over 240 exhibitors providing information on their products and services.

As noted the past two days, we have been interviewing several industry thought leaders to see what they think are the significant trends for 2011 and, which of those are evident at LTNY.  We have conducted several exciting interviews and will announce the series of thought leader interviews after the show and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 37 hits (short day).  Here are some of today’s sessions in the main conference tracks:

10:30 – 11:45 AM:

Risk & Responsibility vs. Cost Control: Managing eDiscovery's Great Balancing Act

Discusses:

  • Framing the legal issues– identifying risks and responsibilities for companies and their counsel
  • A case study–quantifying the costs of eDiscovery
  • An open discussion regarding cost containment / alternative billing strategies:
  • Negotiations with opposing counsel
  • Custodian selection
  • Data selection
  • Culling options
  • Screen and produce
  • Automated review

Panelists are: Lisa Markey, Vice President, Information Risk Management, Barclays Capital; Stephanie Mendelsohn, Legal Director of Corporate Records & eDiscovery, Genentech and Jessica L. Watts, Discovery Counsel, Hewlett-Packard Company.  Moderator: James K. Wagner, Jr., Co-Founder and CEO, DiscoverReady.

Introduction to ESI Search

Discusses:

  • Content vs. Metadata Searching
  • Classification of ESI
  • Prerequisites for Content Searching
  • Extraction of textual content
  • Indexing of textual content
  • Implementation of Content Searching
  • Key considerations and differentiators
  • Search Intent
  • How does the desired goal of a search influence its implementation?
  • When does search have legal implications and when does it not?

Panelists are: Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz; Gene Eames, Director, Legal Search & Data Analytics, Pfizer and Rich Hoffman, Vice President of Research and Development, Unify Corporation.  Moderator: Rudy Rouhana, Director of Product Marketing, Daegis.

Criminal Investigations: Why the Rules, Risks, and Responsibilities are Different from eDiscovery in Civil Cases

Discusses:

  • Unique rules and eDiscovery issues involved in criminal investigations and why you need to be prepared
  • Dialog and discussions you need to have with the government at the beginning of and during an investigation
  • Production of documents and data to the government
  • Practices and procedures in place at the various government agencies

Panelists are: John Haried, Assistant National Discovery Coordinator, Executive Office for United States Attorneys, DOJ; Ross Goldstein, Trial Attorney, Office of Consumer Litigation, Civil Division DOJ and John McEnany, Associate United States Attorney, U.S. Attorney's Office, S.D.N.Y.  Moderator: George Kiersted, President, Kiersted Systems.

1:45 – 3:00 PM:

Top 5 Ethical Concerns for Lawyers in eDiscovery

Discusses:

  • Appropriately supervise clients' discovery efforts (including potential conflicts around self collection)
  • Avoid conflicts of interest – attorney's and vendor's
  • Appropriately supervise document reviewers
  • Avoid serving as discovery process 30(b)(6) witness
  • Accurately represent clients' data storage paradigm and retrieval/restoration/review expenses

Panelists are: Conor R. Crowley, Partner and Sedona Conference® WG1 Steering Committee, Crowley Law Office; William A. Olshan, Managing Director, Office of the General Counsel, Lehman Brothers Holdings Inc.; Shannon Capone Kirk, eDiscovery Counsel, Ropes & Gray LLP; and Theresa Beaumont, eDiscovery Counsel, Google.  Moderator: Maureen O'Neill, VP, San Francisco Marketplace Leader, DiscoverReady.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  What did you think of the show this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Tuesday LTNY Sessions
 

As noted yesterday, LegalTech New York 2011 (LTNY) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the New York area with a number of sessions (both paid and free) available and over 240 exhibitors providing information on their products and services.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2011 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 78 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 11:45 AM:

Multinational Discovery: Privacy and Process

Discusses:

  • The evolving data privacy regulatory environment, including in Europe, AsiaPacific and South America
  • Common cross border scenarios and key "dos and don'ts" for maintaining data privacy compliance
  • Best practices for multinational discovery and additional resources

Panelists are: Amor Esteban, Partner, Shook Hardy Bacon LLP; Kathryn McCarthy, Counsel, Simpson Thacher & Bartlett LLP; Matt Ward, Vice President Information Risk, Barclays Capital; and Peggy Kubicz Hall, Assistant General Counsel, 3M.  Moderator: Joe Looby, Senior Managing Director, FTI.

12:00 – 1:00 PM:

Town Hall Session: Understanding and Mitigating the Risks of Cloud Technology

You've heard the buzz about cloud technology. It's one of the newest computing frontiers and is generating massive interest from organizations seeking to outsource computing, applications and storage. It's true that migrating data to an external cloud can lead to sizable savings on capital and operational expenses. However, there are a host of potential security and privacy issues that can arise and expose organizations to unique risks.

Panelists are: Martin T. Tully, Partner, Katten Muchin Rosenman LLP; Bennett B. Borden, Chair, Electronic Discovery and Information Governance Section, Williams Mullen; Michael E. Lackey, Jr., Partner, Mayer Brown LLP; and Patrick Oot, Special Counsel for Electronic Discovery, Office of the General Counsel, Securities and Exchange Commission.  Moderator: Shannon Smith, Esq., eDiscovery Specialist, CommVault.

12:30 – 1:30 PM:

Plenary General Session: The Future of Litigation and E-discovery: Amending the Federal Rules and Beyond

Lawyers and IT executives want to know the facts and understand the implications for the future of litigation and discovery. This panel of distinguished judges participated in the 2010 Conference on Civil Litigation at Duke University and will examine important issues and FRCP reform aimed at easing the burden of discovery. Perspectives on planning and managing litigation and discovery to meet obligations in a manner that is defensible and proportionate to the amount in controversy will be discussed. Attend this session to hear predictions for what is to come and learn how you can contribute to FRCP reform initiatives and leverage the bench, the rules and technology to ease the burden of discovery.

Panelists are: Honorable James C. Francis, Magistrate Judge, Southern District of New York; Hon. Ron Hedges, Former United States Magistrate Judge; Honorable Andrew J. Peck, Magistrate Judge, Southern District of New York; Honorable David J. Waxse, US District Court, District of Kansas.  Moderator: Jack Halprin, Esq., Vice President, eDiscovery & Compliance, Autonomy, Inc.

2:00 – 3:15 PM:

Cloud, SharePoint and Social Media: Discovery on the Next Data Frontier

Includes discussion of:

  • The new challenges emerging with the rise of cloud computing, SharePoint adoption and social media
  • How do these data types differ from emails and other electronic documents, and how do they impact a reasonable discovery process?
  • The basic technical challenges for collecting, reviewing and producing relevant data from the cloud, SharePoint or social media sites
  • Recent case law involving these new data types
  • Best practices for managing these new data types as part of a holistic information management program

Panelists are: Larry Briggi, Director in the Electronic and Evidence Consulting, FTI; Barry Murphy, Co-Founder, Contributor, eDiscovery Journal; Principal, Murphy Insights; Leigh Isaacs, Firmwide Records Manager, Orrick, Herrington & Sutcliffe LLP; James Zucker, Associate, Hogan Lovells.

3:45 – 5:00 PM:

Predictive Coding: What you Need to Know

Includes discussion of:

  • An overview of the different types of predictive coding offerings available, including suggested coding, and how this differs from more traditional legal review technology
  • The processes needed to supplement the use of predictive coding as part of a defensible legal review workflow
  • Key gotchas for selecting and implementing predictive coding technology, including the role of the review attorneys

Panelists are: Jason R. Baron, Director of Litigation, National Archives and Records Administration; Manfred Gabriel, Managing Director, FTI; Ralph Colby Losey, Partner, Jackson Lewis, LLP; David Yerich, United Health.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

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

eDiscovery Trends: Welcome to LegalTech New York 2011!
 

Today is the start of LegalTech New York 2011 (LTNY) and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 240 exhibitors providing information on their products and services.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2011 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 74 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Proactive Information Governance to Reduce the Pain of eDiscovery

Discusses practices to:

  • Increase defensibility, accountability and transparency
  • Improve efficiency and reduce the volume of growing, uncontrolled information
  • Decrease risk of non compliance and reduce eDiscovery costs
  • Maximize the return on your technology investments and improve staff productivity
  • Adopt best practices and automate eDiscovery capabilities

Panelists are: Galina Datskovsky, Ph.D. CRM, SVP Information Governance, Autonomy, Inc.; Brett Durand, Director, Discovery Services, Pfizer, Inc.; Anthony Dianna, Partner, Mayer Brown, Inc,; and Debra Logan, VP, Distinguished Analyst, Gartner, Inc.  Moderator: Reed Irvin, VP Information Governance, Autonomy, Inc.

The 5 Most Important Things you Need to Consider when Bringing e-Discovery In-house

You have made the decision to in-source certain aspects of the e-Discovery process, or you're considering the potential benefits, but the next step is a challenge. In this session, we will address the five most important things to consider as you take on the responsibilities and risks of e-Discovery internally. We will look through the lenses of both legal and IT, and discuss how best to support the technology and business processes. We also evaluate sourcing models to address the risks. This is an ideal panel for corporate legal departments to attend along with their IT department leaders.

Panelists are: Andrew Sherman, Associate General Counsel, Rabobank; Glen McFarlane, Executive Director Legal & Compliance, JPMorgan Chase & Co.; Anthony Mosquera, Esq., Legal Division, Discovery Operations, Pfizer, Inc.  Moderator: Jeff Seymour, Principal, Deloitte Financial Advisory Services LLP.

2:00 – 3:15 PM:

e-Discovery as a Repeatable Business Process

Given the significant potential expense of eDiscovery, organizations cannot allow service providers to operate carte blanche. In-house and outside counsel must understand the eDiscovery process in the context of legal compliance and the current matter, and they also must be answerable to the CFO. In short, eDiscovery must be comprehended operationally and financially and be subject to standards of accountability, efficiency, and effectiveness like any critical business process.

Panelists are: Vince Catanzaro, Senior Counsel, Global Discovery Manager, DuPont; Scott Carlson, Partner & Co-Chair eDiscovery, Seyfarth Shaw; Woods Abbott, Senior Manager – Legal Operations, Raytheon Company. Moderator: Kelli Brooks, National Partner-in-Charge, Evidence and Discovery Management, KPMG LLP.

3:45 – 5:00 PM:

The Emerging "Smart Discovery" Paradigm for Cost Management in e-Discovery – Case Studies and Case Law"

This panel discussion focuses on the cost problems typically associated with the eDiscovery process. Using case studies, and against the backdrop of relevant case law and recent legal research, the panelists will review some of the paradigmatic changes that are emerging in the conduct of eDiscovery. Fundamental to this new wave of approaches, collectively referred to as "Smart Discovery," is an iterative—rather than linear—approach to eDiscovery processes. Using iterative techniques, such as sampling, predictive coding technology, data stratification, prioritization of custodians and data sources, and targeted collections, counsel can make real-time adjustments as they learn more about the people, terminology, and issues related to the case. The Smart Discovery approach also compresses the process, seeking to identify responsive data as close to source as possible, and enabling early learning and utilization of the data. The potential for litigants is a smaller, more manageable corpus of collected data, improved relevancy, reduced review time, and ultimately, lower costs.

Panelists are: Jason R. Baron, Director of Litigation, National Archives and Records Administration; Brian A. Davis, Litigation Department Co-Chair, Choate, Hall & Stewart LLP; F. Eli Nelson, Senior Staff Attorney, Project Manager – Discovery and Litigation Technology, Cleary Gottlieb Steen & Hamilton LLP; Chris Paskach, National Partner-in-Charge, Forensic Technology Services, KPMG LLP. Moderator: Warwick Sharp, Vice President, Equivio.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/TrialSolutions.

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

eDiscovery Trends: Metadata Mining Ethics
 

Years ago, I put together a CLE course about metadata awareness and how hidden data (such as tracked changes and comments) can cause embarrassment or even inadvertent disclosures in eDiscovery.  The production of metadata with ESI continues to be a big issue in eDiscovery and organizations need to consider how to handle that metadata (especially if it’s hidden), to avoid issues.

For those who don’t know, metadata can be simply defined as “data about data”, which is to say it’s the data that describes each file and includes information such as when it was created, when it was last modified and who last modified it.  Metadata can often be used in identifying responsive files based on time frame (of creation or last editing) or other criteria.

Many types of files can contain other hidden metadata, such as a record the changes made to a file, who made those changes, and any comments that those parties may have also added (for example, Microsoft Word has Tracked Changes and Comments that aid in collaboration to obtain feedback from one or multiple parties regarding the content of the document).  Embedded objects can also be hidden, for example, depending on how you embed an Excel table into a Word document; the entire Excel file may be accessible within the document, even though only a small part of it is displayed.

Last fall, the American Bar Association published an article with a look at metadata ethics opinions, which was also recently referenced in this article.  The opinions issued to date have focused on three topics with regard to metadata production:

  • The sender's responsibility when transmitting or producing electronic files;
  • The recipient's right to examine (or "mine") files for metadata; and
  • The recipient's duty to notify the sender if sensitive data is discovered.

Sender’s Responsibility

Jurisdictions agree that an attorney sending or producing ESI has a duty to exercise caution to avoid inadvertently disclosing confidential information, though the level of caution required may vary depending upon the jurisdiction and situation.  In SBA Ethics Opinion 07-03, the State Bar of Arizona's Ethics Committee indicated that level of caution may depend upon "the sensitivity of the information, the potential consequences of its inadvertent disclosure, whether further disclosure is restricted by statute, protective order, or confidentiality agreement, and any special instructions given by the client."

Ignorance of technology is no excuse.  The Colorado Bar Association Ethics Committee states that attorneys cannot limit their duty "by remaining ignorant of technology relating to metadata or failing to obtain competent computer support." (CBA Ethics Opinion 119).

Recipient’s Right to Examine

There is less jurisdictional agreement here.  Colorado, Washington D.C. and West Virginia allow metadata mining unless the recipient is aware that the data was sent unintentionally. On the other hand, New York and Maine prohibit metadata mining – the New York State Bar Association's Committee on Professional Ethics based its decision in part on the "strong public policy in favor of protecting attorney-client confidentiality." (NYSBA Opinion 749).  Minnesota and Pennsylvania have not set a bright-line rule, stating that the decision to allow or prohibit metadata mining should depend on the case.

Recipient’s Duty to Notify

Most jurisdictions rely on their local variation of ABA Model Rule of Professional Conduct 4.4(b), which indicates that an attorney who receives confidential data inadvertently sent is obligated to notify the sender.  Maryland is one exception to that position, stating that "the receiving attorney can, and probably should, communicate with his or her client concerning the pros and cons of whether to notify the sending attorney." (MSBA Ethics Docket 2007-09).

Bottom Line

You may not be able to control what a recipient can do with your inadvertently produced metadata, but you can take steps to avoid the inadvertent production in the first place.  Office 2007 and greater has a built in Document Inspector that eliminates the hidden metadata in Office files, while publishing files to PDF will remove some metadata (the amount of metadata removed depends on the settings).  You can also use a metadata “scrubber” application such as Workshare Protect or Metadata Assistant to remove the metadata – most of these will even integrate with email so that you have the option to “scrub” the file before sending.

So, what do you think?  Have you been “stung” by hidden metadata?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: EDRM Data Set for Great Test Data
 

In it’s almost six years of existence, the Electronic Discovery Reference Model (EDRM) Project has implemented a number of mechanisms to standardize the practice of eDiscovery.  Having worked on the EDRM Metrics project for the past four years, I have seen some of those mechanisms implemented firsthand.

One of the most significant recent accomplishments by EDRM is the EDRM Data Set.  Anyone who works with eDiscovery applications and processes understands the importance to be able to test those applications in as many ways as possible using realistic data that will illustrate expected results.  The use of test data is extremely useful in crafting a defensible discovery approach, by enabling you to determine the expected results within those applications and processes before using them with your organization’s live data.  It can also help you identify potential anomalies (those never occur, right?) up front so that you can be proactive to develop an approach to address those anomalies before encountering them in your own data.

Using public domain data from Enron Corporation (originating from the Federal Energy Regulatory Commission Enron Investigation), the EDRM Data Set Project provides industry-standard, reference data sets of electronically stored information (ESI) to test those eDiscovery applications and processes.  In 2009, the EDRM Data Set project released its first version of the Enron Data Set, comprised of Enron e-mail messages and attachments within Outlook PST files, organized in 32 zipped files.

This past November, the EDRM Data Set project launched Version 2 of the EDRM Enron Email Data Set.  Straight from the press release announcing the launch, here are some of the improvements in the newest version:

  • Larger Data Set: Contains 1,227,255 emails with 493,384 attachments (included in the emails) covering 151 custodians;
  • Rich Metadata: Includes threading information, tracking IDs, and general Internet headers;
  • Multiple Email Formats: Provision of both full and de-duplicated email in PST, MIME and EDRM XML, which allows organizations to test and compare results across formats.

The Text REtrieval Conference (TREC) Legal Track project provided input for this version of the data set, which, as noted previously on this blog, has used the EDRM data set for its research.  Kudos to John Wang, Project Lead for the EDRM Data Set Project and Product Manager at ZL Technologies, Inc., and the rest of the Data Set team for such an extensive test set collection!

So, what do you think?  Do you use the EDRM Data Set for testing your eDiscovery processes?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Sanctions Down in 2010 — at least thru December 1

Recently, this blog cited a Duke Law Journal study that indicated that eDiscovery sanctions were at an all-time high through 2009.  Then, a couple of weeks ago, I saw a story recently from Williams Mullen recapping the 2010 year in eDiscovery.  It provides a very thorough recap including 2010 trends in sanctions (identifying several cases where sanctions were at issue), advances made during the year in cooperation and proportionality, challenges associated with privacy concerns in foreign jurisdictions and trends in litigation dealing with social media.  It’s a very comprehensive summary of the year in eDiscovery.

One noteworthy finding is that, according to the report, sanctions were sought and awarded in fewer cases in 2010.  Some notable stats from the report:

  • There were 208 eDiscovery opinions in 2009 versus 209 through December 1, 2010;
  • Out of 209 cases with eDiscovery opinions in 2010, sanctions were sought in 79 of them (38%) and awarded in 49 (62% of those cases, and 23% of all eDiscovery cases).
  • Compare that with 2009 when sanctions were sought in 42% of eDiscovery cases and were awarded in 70% of the cases in which they were requested (30% of all eDiscovery cases).
  • While overall requests for sanctions decreased, motions to compel more than doubled in 2010, being filed in 43% of all e-discovery cases, compared to 20% in 2009.
  • Costs and fees were by far the most common sanction, being awarded in 60% of the cases involving sanctions.
  • However, there was a decline in each type of sanction as costs and fees (from 33 to 29 total sanctions), adverse inference (13 to 7), terminating (10 to 7), additional discovery (10 to 6) and preclusion (5 to 3) sanctions all declined.

The date of this report was December 17, and the report noted a total of 209 eDiscovery cases as of December 1, 2010.  So, final tallies for the year were not yet tabulated.  It will be interesting to see if the trend in decline of sanctions held true once the entire year is considered.

So, what do you think?  Is this a significant indication that more organizations are getting a handle on their eDiscovery obligations – or just a “blip in the radar”?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: 2011 Predictions — By The Numbers
 

Comedian Nick Bakay”>Nick Bakay always ends his Tale of the Tape skits where he compares everything from Married vs. Single to Divas vs. Hot Dogs with the phrase “It's all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  We’ll have some of our own in the next few days (hey, the longer we wait, the more likely we are to be right!).  However, before stating those predictions, I thought we would take a look at other predictions and see if we can spot some common trends among those, “googling” for 2011 eDiscovery predictions, and organized the predictions into common themes.  I found serious predictions here, here, here, here and here.  Oh, also here and here.

A couple of quick comments: 1) I had NO IDEA how many times that predictions are re-posted by other sites, so it took some work to isolate each unique set of predictions.  I even found two sets of predictions from ZL Technologies, one with twelve predictions and another with seven, so I had to pick one set and I chose the one with seven (sorry, eWEEK!). If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Cloud and SaaS Computing: Six out of seven “prognosticators” indicated that adoption of Software as a Service (SaaS) “cloud” solutions will continue to increase, which will become increasingly relevant in eDiscovery.  No surprise here, given last year’s IDC forecast for SaaS growth and many articles addressing the subject, including a few posts right here on this blog.
  • Collaboration/Integration: Six out of seven “augurs” also had predictions related to various themes associated with collaboration (more collaboration tools, greater legal/IT coordination, etc.) and integration (greater focus by software vendors on data exchange with other systems, etc.).  Two people specifically noted an expectation of greater eDiscovery integration within organization governance, risk management and compliance (GRC) processes.
  • In-House Discovery: Five “pundits” forecasted eDiscovery functions and software will continue to be brought in-house, especially on the “left-side of the EDRM model” (Information Management).
  • Diverse Data Sources: Three “soothsayers” presaged that sources of data will continue to be more diverse, which shouldn’t be a surprise to anyone, given the popularity of gadgets and the rise of social media.
  • Social Media: Speaking of social media, three “prophets” (yes, I’ve been consulting my thesaurus!) expect social media to continue to be a big area to be addressed for eDiscovery.
  • End to End Discovery: Three “psychics” also predicted that there will continue to be more single-source end-to-end eDiscovery offerings in the marketplace.

The “others receiving votes” category (two predicting each of these) included maturing and acceptance of automated review (including predictive coding), early case assessment moving toward the Information Management stage, consolidation within the eDiscovery industry, more focus on proportionality, maturing of global eDiscovery and predictive/disruptive pricing.

Predictive/disruptive pricing (via Kriss Wilson of Superior Document Services and Charles Skamser of eDiscovery Solutions Group respective blogs) is a particularly intriguing prediction to me because data volumes are continuing to grow at an astronomical rate, so greater volumes lead to greater costs.  Creativity will be key in how companies deal with the larger volumes effectively, and pressures will become greater for providers (even, dare I say, review attorneys) to price their services more creatively.

Another interesting prediction (via ZL Technologies) is that “Discovery of Databases and other Structured Data will Increase”, which is something I’ve expected to see for some time.  I hope this is finally the year for that.

Finally, I said that I found serious predictions and analyzed them; however, there are a couple of not-so-serious sets of predictions here and here.  My favorite prediction is from The Posse List, as follows: “LegalTech…renames itself “EDiscoveryTech” after Law.com survey reveals that of the 422 vendors present, 419 do e-discovery, and the other 3 are Hyundai HotWheels, Speedway Racers and Convert-A-Van who thought they were at the Javits Auto Show.”

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Myth of SaaS Insecurity Finally Busted

Eleven years ago, when I first began talking to attorneys about hosting document collections online to manage the review and production process for discovery, the typical response that I got was “I would never consider putting my client’s documents online – it’s just not secure”.  Let’s face it – lawyers are not exactly early adopters of technology… 😉

These days, few folks seem to have that concern any more when it comes to putting sensitive data and documents online.  Many people bank online, buy items from Amazon and other “etailers”, share pictures and other personal information on Facebook, etc.  As for business data, SalesForce.com has become the top customer relationship management (CRM) application and many business users are using Google Docs to share documents with colleagues, as just two examples.

What do all of these applications have in common?  They are Software as a Service (SaaS) applications, delivering data and functionality via an online application.  As noted previously on this blog, a new IDC study forecasts the SaaS market to reach $40.5 billion by 2014, an annual growth rate of 25.3%.  Also by 2014, about 34% of all new business software purchases will be via SaaS applications, according to IDC.

SaaS review applications have also become increasingly popular in eDiscovery with several eDiscovery SaaS applications available that provide benefits including: no software to install, intuitive browser-based interfaces and ability to share the collection with your client, experts, and co-counsel without distributing anything more than a login.

As for security concerns, most litigators have come to accept that these systems are secure.  But, do they realize just how secure they are?

As an example, at Trial Solutions, the servers hosting data for our OnDemand® and FirstPass™ (powered by Venio FPR™) platforms are housed in a Tier 4 data center in Houston (which is where our headquarters is).  The security at this data center is military grade: 24 x 7 x 365 onsite security guards (I feel sorry for the folks who have to work this Saturday!), video surveillance, biometric and card key security required just to get into the building.  Not to mention a building that features concrete bollards, steel lined walls, bulletproof glass, and barbed wire fencing.  And, if you’re even able to get into the building, you then have to find the right server (in the right locked room) and break into the server security.  It’s like the movie Mission Impossible where Tom Cruise has to break into the CIA, except for the laser beams over the air vent (anyone who watches movies knows those can be easily thwarted by putting mirrors over them).  To replicate that level of security infrastructure would be cost prohibitive for even most large companies.

From the outside, SaaS applications secure data with login authentication and Secured Sockets Layer (SSL) encryption.  SSL encryption is like taking a piece of paper with text on it, scrambling the letters on that piece of paper and then tearing it up into many pieces and throwing the scraps into the wind.  To intercept a communication (one request to the server), you have to intercept all of the packets of a communication, then unscramble each packet individually and then reassemble them in the correct order.

Conversely, desktop review application data could be one stolen laptop away from being compromised.  No wonder why nobody talks about security concerns anymore with SaaS applications.

So, what do you think?  How secure is your document collection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Happy Holidays from all of us at Trial Solutions and eDiscovery Daily!

eDiscovery Trends: Social Media in Litigation

Yesterday, we introduced the Virtual LegalTech online educational session Facing the Legal Dangers of Social Media and discussed what factors a social media governance policy should address.  To get background information regarding the session, including information about the speakers (Harry Valetk, Daniel Goldman and Michael Lackey), click here.

The session also addressed social media in litigation, discussing several considerations about social media, including whether it’s discoverable, how it’s being used in litigation, how to request it, how to preserve it, and how to produce it.  Between wall postings, status updates, personal photos, etc., there’s a lot of content out there and it’s just as discoverable as any other source of ESI – depending on its relevance to the case and the burden to collect, review and produce.  The relevance of privacy settings may be a factor in the discoverability of this information as at least one case, Crispin v. Christian Audigier, Inc.,(C.D. Cal. May 26, 2010), held that private email messaging on Facebook, MySpace and Media Temple was protected as private.

So, how is social media content being used in litigation?  Here are some examples:

  • Show Physical Health: A person claiming to be sick or injured at work who has photos on their Facebook profile showing them participating in strenuous recreation activities;
  • Discrimination and Harassment: Statements made online which can be considered discriminatory or harassing or if the person “likes” certain groups with “hate” agendas;
  • False Product Claims: Statements online about a product that are not true or verifiable;
  • Verify or Refute Alibis: Social media content (photos, location tracking, etc.) can verify or refute alibis provided by suspects in criminal cases;
  • Pre-Sentencing Reports: Social media content can support or refute claims of remorse – in one case, the convicted defendant was sentenced more harshly because of statements made online that refuted his statements of remorse in the courtroom;
  • Info Gathering: With so much information available online, you can gather information about opposing parties, witnesses, attorneys, judges, or even jurors.  In some cases, attorneys have paid firms to ensure that positive information will bubble to the top when jurors “Google” those attorneys.  And, in Ohio, at least, judges may not only have Facebook friends, but those friends can include attorneys appearing before them (interesting…).

If possible, request the social media content from your opponent as the third-party provider will probably fight having to provide the content, usually citing the Stored Communications Act.  As noted previously on this blog, Facebook and Twitter have guidelines for requesting data – through subpoena and law enforcement agencies.

Social media content is generally stored by third-party Software as a Service (SaaS) providers (Facebook and Twitter are examples of SaaS providers), so it’s important to be prepared to address several key eDiscovery issues to proactively prepare to be able to preserve and produce the data for litigation purposes, just as you would with any SaaS provider.

So, what do you think?  Has your organization been involved in litigation where social media content was requested?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Social Media Policies to Manage Risk

As noted previously, ALM hosted another Virtual LegalTech online “live” day online last week.  We’ve talked about the session regarding Predictive Coding here and here.

Another session from last week’s “live” day was Facing the Legal Dangers of Social Media.  The speakers for this session were:

  • Harry A. Valetk: Internet Safety and Consumer Privacy Attorney, MetLife Privacy Office;
  • Daniel S. Goldman: Chair of Mayo Clinic’s business law practice group which oversees the corporate law, contracting and intellectual property functions of the Mayo Clinic legal department.; and
  • Michael E. Lackey, Jr.: Partner and co-chair of the Electronic Discovery and Records Management Practice for Mayer Brown LLP.

Establishing boundaries between your professional life and personal life continues to be more challenging as more personal information is available online.  The session cited a handful of cases where terminations resulted from postings on individuals’ personal social media accounts, one of which was challenged by the National Labor Relations Board (NLRB).  At least one state has rules in place – Section 201-d(2)(c) of New York’s Labor Law protects “legal recreational activities” engaged off-site during nonworking hours.

An interesting stat from the session was that “27% of employed Internet users now work for employer[s] with policies about how they may present themselves online”.  As noted previously in this blog, having a social governance policy in place is a good idea to govern use of outside email, chat and social media that covers what employees should and should not do.  From the session, here are some factors that a good social governance policy should address:

  • Educate: The social governance policy should be accessible and all employees should receive training with examples that illustrate what may not be obvious to everybody,
  • Plan for Crises: The speed and reach of social media means that a crisis will happen fast.  Identify a crisis team and develop a plan to react quickly.  When disgruntled employees of Domino’s pizza posted a video, showing them tainting food, Domino’s management reacted quickly.
  • Plagiarize:  Yes, plagiarize.  As in, there are many good ideas already implemented out there for social governance, don’t reinvent the wheel.
  • Use of Social Media During Work: Some companies will try to ban the use of social media during work by banning access to sites via work computers, but employees can simply access those sites on mobile devices, so it’s better to establish an expectation of level of acceptable use.
  • Preserve Customer Privacy: Any policy must stress the importance of this.
  • Identify Company Spokespersons: Establish who can speak on behalf of the company and make clear to others to stress that any views they espouse online are personal views.
  • Address the Blurring of Boundaries: Employees should not exhibit inappropriate behavior on social media when identified as employees, and there should be no association with the employer for any behavior incompatible with the brand/profession.
  • Business Confidentiality: Don’t discuss trade secrets or other confidential information online.  Even posting that you’re attending a meeting with a company that you’re negotiating with can violate NDA agreements.
  • Prohibit Employees from Speaking Anonymously: It’s considered unethical at best and may be an FTC violation at worst as John Mackey, Whole Foods CEO, found out back in 2007.
  • Don’t Harass: If it’s unacceptable behavior in the workplace, it’s unacceptable online.  Not to mention gutless.  And, employers can be liable if they’re aware of harassing behavior online and don’t act to address it.

Tomorrow, we’ll discuss the discoverability and use of social media content in litigation.  As noted with the predictive coding session, you can check out a replay of the session at the Virtual LegalTech site. You’ll need to register – it’s free – then login and go to the CLE Center Auditorium upon entering the site (which is up all year, not just on “live days”).  Scroll down until you see this session and then click on “Attend Now” to view the replay presentation.  You can also go to the Resource Center at the site and download the slides for the presentation.

So, what do you think?  Does your organization have a social media policy in place?  Please share any comments you might have or if you’d like to know more about a particular topic.