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Information Governance

How Are You Handling Defensible Deletion? – eDiscovery Best Practices

According to the Compliance, Governance and Oversight Council (CGOC), information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years.  So, many organizations are drowning in electronically stored information (ESI) and costs associated with managing that ESI for eDiscovery are continuing to rise.  An effective plan for information governance that includes defensible deletion of ESI is an effective way of keeping that ESI from overwhelming your organization.  But, what percentage of organizations is defensibly deleting data?  A new survey from eDJGroup is attempting to find out.

Defensible deletion of ESI that has little or no business value and is not subject to legal hold is a good business practice that is protected through Rule 37(e) of the Federal Rules of Civil Procedure (commonly known as the “safe harbor” rule) which states:

Failure to Provide 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.

Barry Murphy’s article (Defensible Deletion Gaining Steam) on eDiscovery Journal discusses the eDJGroup survey and provides some interim results to two of the questions asked:

  1. Do you believe defensible deletion of information is necessary in order to manage growing volumes of digital information?: As of the article date on December 4, an overwhelming 93.0% of all respondents have said ‘yes’, 2.3% have said ‘no’ and 4.7% have said ‘don’t know / unsure’.  Frankly, I’m surprised that anybody doesn’t believe that defensible deletion is necessary!
  2. Does your organization currently defensibly delete information?: As of the article date on December 4, 14.0% of all respondents have said ‘yes, for all systems’, 54.7% have said ‘yes, in some systems’, 16.3% have said ‘no’ and 15.1% have said ‘don’t know’.  That means that over 2/3 of respondents so far (68.7%) defensibly delete information in at least some systems.

As of the article date, there had been 86 respondents.  But, the survey is not over!  You can take the survey here and contribute to the results.  Murphy says the ‘survey will close later this month, so be sure to take it now’, but doesn’t provide a specific date that it closes (one would hope it would be at the end of the month to be as inclusive as possible).  Nonetheless, ‘all respondents will get a summary of the results and have a chance to win a $250 gift card’, so it’s worthwhile to participate.

So, what do you think?  Does your organization have an information governance plan that includes defensible deletion of data?  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.

ARMA/Forrester Survey: Only One in Eight Records Managers Trusts Their ESI – eDiscovery Trends

According to the Forrester Research and ARMA International Records Management Online Survey, Q3 2012, only 12 percent of records managers are “very confident” that, if challenged, their organization could demonstrate that their electronically stored information (ESI) is “accurate, accessible, complete and trustworthy”.  That’s less than one in eight.

The report, co-authored by ARMA and Forrester Research, contains the results of a survey of 354 records managers.

Some of the less than optimistic comments from the report include: “Records managers report abysmally low e-discovery confidence…This bleak data point represents an even lower e-discovery confidence rate than captured in past surveys…[S]urvey data show that integrated legal hold – a critical component needed for successful defensible disposition – is simply missing in organizations.”

And this: “Organizations aren’t sure of the business value or legal obligations to preserve content so they simply continue to accumulate digital debris, slowing down overtaxed systems, adding to storage costs, and posing potential additional litigation and investigation burdens over time.”

Some of the reasons cited as obstacles to improved records management include:

  • Poor systems integration – 74 percent of respondents;
  • Inadequate budget – 73 percent;
  • Lack of experienced staff – 64 percent;
  • Outdated policies or procedures – 55 percent; and
  • Lack of clear leadership – 54 percent.

So, what are organizations doing to address the obstacles?  Here are some indications:

  • 40 percent of survey respondents expect that their organization’s overall records management spending will increase at least 5% from 2012 to 2013;
  • 71 percent currently have implementation plans underway, or plans to implement records management technology within the next year;
  • 81 percent consider an improvement in records management policy consistency an important objective for their organization.

A copy of the report is available here from Forrester Research for $499.

Since, according to the Compliance, Governance and Oversight Council (CGOC), information volume doubles every 18-24 months, you would think organizations would be making greater strides in implementing information governance programs.  Of course, many information governance industry initiatives are still in relative infancy, including the Information Governance Reference Model (IGRM) Project of the Electronic Discovery Reference Model (EDRM), which was started a mere two years ago (click here for information on their newest version).  It appears that organizations still have a long way to go to get their data under control.

So, what do you think?  What, if any, records management obstacles are your organization facing?  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.

Does This Scare You? – eDiscovery Horrors!

Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so every year we try to “scare” you in a different way instead.  Does this scare you?

The defendant had been previously sanctioned $500,000 ($475,000 to the plaintiff and $25,000 to the court) and held in contempt of court by the magistrate judge for spoliation, who also recommended an adverse inference instruction be issued at trial.  The defendant appealed to the district court, where Minnesota District Judge John Tunheim increased the award to the plaintiff to $600,000.  Oops!

What about this?

Even though the litigation hold letter from April 2008 was sent to the primary custodians, at least one principal was determined to have actively deleted relevant emails. Additionally, the plaintiffs made no effort to suspend the automatic destruction policy of emails, so emails that were deleted could not be recovered.  Ultimately, the court found that 9 of 14 key custodians had deleted relevant documents. After the defendants raised its spoliation concerns with the court, the plaintiffs continued to delete relevant information, including decommissioning and discarding an email server without preserving any of the relevant ESI.  As a result, the New York Supreme Court imposed the severest of sanctions against the plaintiffs for spoliation of evidence – dismissal of their $20 million case.

Or this?

For most organizations, information volume doubles every 18-24 months and 90% of the data in the world has been created in the last two years. In a typical company in 2011, storing that data consumed about 10% of the IT budget. At a growth rate of 40% (even as storage unit costs decline), storing this data will consume over 20% of the typical IT budget by 2014.

How about this?

There “was stunned silence by all attorneys in the court room after that order. It looks like neither side saw it coming.”

Or maybe this?

If you have deleted any of your photos from Facebook in the past three years, you may be surprised to find that they are probably still on the company’s servers.

Scary, huh?  If the possibility of sanctions, exponential data growth and judges ordering parties to perform predictive coding keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

Those of you who are really mortified that the next post in Jane Gennarelli’s “Litigation 101” series won’t run this week, fear not – it will run tomorrow.

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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.

EDRM Announces Several Updates at Mid-Year Meeting – eDiscovery Trends

Last week, the Electronic Discovery Reference Model (EDRM) conducted its mid-year meeting to enable the working groups to meet and further accomplishments in each of the teams for the year.  Having attended several of these meetings in the past, I’ve always found them to usually yield significant progress within the working groups, as well as providing a great opportunity for eDiscovery professionals to get together and talk shop.  Based on the results of the meeting, EDRM issued an announcement with updates from several of their more active projects.

Here are the updates:

  • Data Set: The Data Set project announced the launch of its new file upload utility. “The upload utility will allow us to develop a modern data set that more accurately represents the type of files that are commonly encountered in data processing,” said Eric Robi of Elluma Discovery, co-chair of the project with Michael Lappin of NUIX. The Data Set project also announced a soon-to-be-published “million file dataset” and an upcoming redacted version of the Enron data set, previously described on this blog here.
  • Information Governance Reference Model (IGRM): The IGRM team announced that its updated model (IGRM v3) was recently published and presented at ARMA International’s 57th Annual Conference & Expo and the IAPP Privacy Academy 2012. As discussed on this blog just a couple of weeks ago, the updated version adds privacy and security as key stakeholders in the model.
  • Jobs: The Jobs project continued development of the EDRM RACI (responsible, accountable, consulted, informed) Matrix, a tool designed to help hiring managers better understand the responsibilities associated with common e-discovery roles. RACI maps responsibilities to the EDRM framework so e-discovery duties associated can be assigned to the appropriate parties.
  • Metrics: The Metrics project team refined the EDRM Metrics database, an anonymous set of e-discovery processing metrics derived from actual matters, which will include a CSV upload function to make it easier for vendors and law firms to anonymously submit data to the system.  Having worked on the early stages of this project, my “hats off” to the team for the additional accomplishments.
  • Search: The Search group announced that its EDRM Computer Assisted Review Reference Model (CARRM) soon will be available for public comment. The goal of CARRM is to demystify the predictive coding process and to allow for a common communication platform between vendors and end-users at each phase of the CAR process and it will be interesting to see the document that emerges from these efforts.

EDRM meets in person twice a year, in May for the annual meeting and October for the mid-year meeting, with regular working group phone calls scheduled throughout the year to keep the projects progressing.  The next in person meeting is next year’s annual meeting, currently scheduled for May 7 thru 9, 2013.  For more information about EDRM, click here.  For information on joining EDRM, including fee information for participation, click here.

So, what do you think?  Have you been following the activity of EDRM?  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.

EDRM Announces Version 3 of the IGRM for Information Governance – eDiscovery Trends

This week, the Electronic Discovery Reference Model (EDRM) Project, through its Information Governance Reference Model (IGRM) Project, announced today the release of version 3.0 of the IGRM.  As their press release notes, “The updated model now includes privacy and security as primary functions and stakeholders in the effective governance of information. This release of the IGRM reflects broad industry support and collaboration across the expert communities of ARMA International and CGOC (Compliance, Governance and Oversight Council).”

The importance of information governance to the eDiscovery process is clear – when organizations do not have a clear plan for managing their information and defensibly disposing of expired information at the right time, costs for managing that information to respond to discovery requests soar.  The IGRM Project’s mission is to “provide a common, practical framework enabling organizations to establish information governance programs that more effectively deal with the rising volume and diversity of information and the risks, costs, and complications this presents”.  Information Governance is an organization-wide process, affecting Legal, Records, IT and Business organizations within the organization.

The IGRM project was started a mere two years ago, in 2010.  Why does the IGRM exist?  Their early survey of corporate practitioners, conducted jointly with the CGOC, makes it clear:

  • 100% of respondents stated that defensible disposal was the primary purpose of information governance;
  • 66% of IT and 50% of RIM (records management) respondents said their current responsibility model for information governance was ineffective; and
  • 80% of respondents across Legal, IT, and RIM said they had little or very weak linkage between legal obligations for information/data and records management.

As the latest press release notes, “IGRM v3.0 now incorporates Privacy and Security as key stakeholders, reflecting the increasing importance of Privacy and Security duties and the efficiencies organizations can achieve when privacy and security efforts are more holistically integrated with other essential governance practices and programs.”  The diagram above reflects the change – there is a new stakeholder group in blue within the diagram, representing Privacy & Security.

As for other details detailing the IGRM v3.0 update, a white paper is available on the EDRM site (with a link available to download a PDF of the white paper).

EDRM (via the IGRM project) and CGOC have been busy on the Information Governance front this year, as noted by these past stories on our blog here, here and here.  Kudos to all involved in these efforts!

So, what do you think?  Where does your organization stand with regard to information governance efforts?  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.

eDiscovery Daily is Two Years Old Today!
 

It’s hard to believe that it has been two years ago today since we launched the eDiscoveryDaily blog.  Now that we’ve hit the “terrible twos”, is the blog going to start going off on rants about various eDiscovery topics, like Will McAvoy in The Newsroom?   Maybe.  Or maybe not.  Wouldn’t that be fun!

As we noted when recently acknowledging our 500th post, we have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!  We now have nearly seven times the visitors to the site as we did when we first started.  We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Litigation Support Blog.com, Litigation Support Technology & News, Ride the Lightning, InfoGovernance Engagement Area, Learn About E-Discovery, Alltop, Law.com, Justia Blawg Search, Atkinson-Baker (depo.com), ABA Journal, Complex Discovery, Next Generation eDiscovery Law & Tech Blog and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

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

We talked about best practices for issuing litigation holds and how issuing the litigation hold is just the beginning.

By the way, did you know that if you deleted a photo on Facebook three years ago, it may still be online?

We discussed states (Delaware, Pennsylvania and Florida) that have implemented new rules for eDiscovery in the past few months.

We talked about how to achieve success as a non-attorney in a law firm, providing quality eDiscovery services to your internal “clients” and how to be an eDiscovery consultant, and not just an order taker, for your clients.

We warned you that stop words can stop your searches from being effective, talked about how important it is to test your searches before the meet and confer and discussed the importance of the first 7 to 10 days once litigation hits in addressing eDiscovery issues.

We told you that, sometimes, you may need to collect from custodians that aren’t there, differentiated between quality assurance and quality control and discussed the importance of making sure that file counts add up to what was collected (with an example, no less).

By the way, did you know the number of pages in a gigabyte can vary widely and the same exact content in different file formats can vary by as much as 16 to 20 times in size?

We provided a book review on Zubulake’s e-Discovery and then interviewed the author, Laura Zubulake, as well.

BTW, eDiscovery Daily has had 150 posts related to eDiscovery Case Law since the blog began.  Fifty of them have been in the last six months.

P.S. – We still haven't missed a business day yet without a post.  Yes, we are crazy.

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

eDiscovery Milestones: Our 500th Post!

One thing about being a daily blog is that the posts accumulate more quickly.  As a result, I’m happy to announce that today is our 500th post on eDiscoveryDaily!  In less than two years of existence!

When we launched on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis and we have done our best to deliver on that goal.  During that time, we have published 144 posts on eDiscovery Case Law and have identified numerous cases related to Spoliation Claims and Sanctions.   We’ve covered every phase of the EDRM life cycle, including:

We’ve discussed key industry trends in Social Media Technology and Cloud Computing.  We’ve published a number of posts on eDiscovery best practices on topics ranging from Project Management to coordinating eDiscovery within Law Firm Departments to Searching and Outsourcing.  And, a lot more.  Every post we have published is still available on the site for your reference.

Comparing our first three months of existence with our most recent three months, we have seen traffic on our site grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!

And, we have you to thank for that!  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

I also want to extend a special thanks to Jane Gennarelli, who has provided some wonderful best practice post series on a variety of topics, ranging from project management to coordinating review teams to learning how to be a true eDiscovery consultant instead of an order taker.  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

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

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 499 previous posts.  Maybe you missed some?  😉

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

eDiscovery Trends: Charges Against Suspect Dismissed Partially Over Storage of Two Terabytes
 

Law Technology News had an interesting article regarding a DEA criminal case written by Ryan J. Foley (Two Terabytes Too Much Evidence for DEA).  Here’s the scenario.

Fugitive Miami doctor Armando Angulo was indicted in 2007 in a multimillion dollar scheme that involved selling prescription drugs to patients who were never examined or even interviewed by a physician.  He fled to his native Panama in 2004 after the Drug Enforcement Administration began its investigation of him.  While the US does have an extradition treaty with Panama, Panamanian authorities say they do not extradite their own citizens.

The case led to conviction of 26 defendants (including 19 doctors) and recovery of $7 million, but Angulo remains at large.  Information related to the case took up two terabytes of hard drive space – 5 percent of the DEA's worldwide electronic storage (which would mean the DEA only has 40 total terabytes worldwide?).  Other case information also included “several hundred boxes of paper containing 440,000 documents, plus dozens of computers, servers, and other bulky items.”

As a result, noting that “[c]ontinued storage of these materials is difficult and expensive”, Stephanie Rose, the U.S. attorney for northern Iowa, dropped the charges, calling the task "an economic and practical hardship".  U.S. District Judge Linda Reade dismissed the case with prejudice; therefore, it cannot be refiled.  However, Angulo is still wanted for separate Medicaid fraud and narcotics charges in Florida, so he’s not completely “off the hook” with regard to criminal investigations.

Does it seem unbelievable that the DEA is walking away from a case for which storage to support it could be purchased from Best Buy for less than $100?  It’s probably safe to assume that the requirements for storage of criminal evidence must meet certain requirements for security and chain of custody that makes the cost for two terabytes in the DEA server environment considerably more expensive than that.  In the LTN article, University of Iowa computer scientist Douglas Jones notes that it’s possible that the DEA’s server is small and needs replacement, but that doing so while maintaining integrity of the data may be costly and risky.

I have not worked for a government agency supporting prosecution of criminal cases, but I would imagine that records management and preservation requirements are at a completely different level than those of many organizations managing data to support their civil litigation docket.  Criminal cases can go on for years or even decades through appeals, so I would think it’s a unique challenge for these agencies.  So, it surprises me that the DEA only has 40 terabytes of storage worldwide.

So, what do you think?  Do you work for a government agency prosecuting criminal cases?  How does your organization handle records management and preservation?  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.

eDiscovery Trends: The Growth of eDiscovery is Transparent
 

With data in the world doubling every two years or so and the variety of issues that organizations need to address to manage that data from an eDiscovery standpoint, it would probably surprise none of you that the eDiscovery market is growing.  But, do you know how quickly the market is growing?

According to a new market report published by Transparency Market Research (and reported by BetaNews), the global eDiscovery market is expected to rise 275% from 2010 to 2017.  Their report eDiscovery (Software and Service) Market – Global Scenario, Trends, Industry Analysis, Size, Share and Forecast, 2010 – 2017 indicates that the global eDiscovery market was worth $3.6 billion in 2010 and is expected to reach $9.9 billion by 2017, growing at a Compound Annual Growth Rate (CAGR) of 15.4% during that time.  Here are some other noteworthy stats that they report and forecast:

  • The U.S. portion of the eDiscovery market was valued at $3.0 billion in 2010, and is estimated to grow at a CAGR of 13.3% from 2010 to 2017 to reach $7.2 billion by 2017 (240% total growth);
  • The eDiscovery market in the rest of the world was valued at $600 million in 2010, and is estimated to grow at a CAGR of 23.2% from 2010 to 2017 to reach $2.7 billion by 2017 (450% total growth – wow!);
  • Not surprisingly, the U.S. is expected to continue to be the leader in terms of revenue with 73% of global eDiscovery market share in 2017;
  • The report also breaks the market into software based eDiscovery and services based eDiscovery, with the global software based eDiscovery market valued at $1.1 billion in 2010 and expected to grow at a CAGR of 11.5% to reach $2.5 billion by 2017 (227% total growth) and the global services based eDiscovery market valued at $2.5 billion in 2010 and expected to grow at a CAGR of 17.0% to reach $7.4 billion by 2017 (296% total growth).

According to the report, key factors driving the global eDiscovery market include “increasing adoption of predictive coding, growing risk mitigation activities in organizations, increase in criminal prosecutions and civil litigation and growth of record management across various industries”.  They predict that “[i]n the next five years, the e-discovery industry growth will get further support from increasing automatic enterprise information archiving applications, growth in multi-media search for sound and visual data, next generation technology growth for cloud computing i.e. virtualization and increasing involvement of organizations in the social media space.”

The report also discusses topics such as pricing trends, competitor analysis, growth drivers, opportunities and inhibitors and provides company profiles of several big players in the industry.  The 96 page report is available in a single user license for $4,395 up to a corporate license for $10,395.

So, what do you think?  Do those growth numbers surprise you?  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.

eDiscovery Trends: Interview with Laura Zubulake of Zubulake’s e-Discovery, Part 2
 

Last week, we discussed the new book by Laura A. Zubulake, the plaintiff in probably most famous eDiscovery case ever (Zubulake vs. UBS Warburg), entitled Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  I also conducted an interview with Laura last week to get her perspective on the book, including her reasons for writing the book seven years after the case ended and what she expects readers to learn from her story.

The book is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.  The book is available at Amazon and also at CreateSpace.

Our interview with Laura had so much good information in it, we couldn’t fit it all into a single post.  Yesterday was part 1.  Here is the second and final part!

What advice would have for plaintiffs who face a similar situation to the one you faced?

I don’t give advice, and I’ll tell you why.  It’s because every case is different.  And, it’s not just the facts of the case but it’s also the personal lives of the plaintiffs.  So, it’s very difficult for me to do that.  Unless you’re in someone else’s shoes, you really can’t appreciate what they’re going through, so I don’t give advice.

What do you think about the state of eDiscovery today and where do you think that more attention could be paid to the discovery process?

While I don’t work in the industry day-to-day, I read a lot and keep up with the trends and it’s pretty incredible to me how it has changed over the past eight to nine years.  The first opinions in my case were in 2003 and 2004.  Back then, we had so little available with regard to technology and legal guidance.  When I attend a conference like LegalTech, I’m always amazed at the number of vendors and all the technology that’s now offered.  From that standpoint, how it has matured as an industry is a good thing.  However, I do believe that there are still important issues with regard to eDiscovery to be addressed.  When you read surveys and you see how many corporations still have yet to adopt certain aspects of the eDiscovery process, the fact that’s the case raises concern.  Some firms have not implemented litigation holds or document retention policies or an information governance structure to manage their information and you would think by now that a majority of corporations would have adopted something along those lines. 

I guess organizations still think discovery issues and sanctions won’t happen to them.  And, while I recognize the difficulty in a large organization with lots of employees to control everything and everybody, I’m surprised at the number of cases where sanctions occur.  I do read some of the case law and I do “scratch my head” from time to time.  So, I think there are still issues.

Obviously, the hot topic now is predictive coding.  My concern is that people perceive that as the “end all” and the ultimate answer to questions.  I think that processes like predictive coding will certainly help, but I think there’s still something to be said for the “human touch” when it comes to reviewing documents. I think that we’re making progress, but I think there is still more yet to go.

I read in an article that you were considering opening up an eDiscovery consulting practice.  Is that the case and, if so, what will be unique about your practice?

It’s something that I’m considering.  I’ve been working on the book, but I’d like to get back into more of a routine and perhaps focus on education for employees.  When people address eDiscovery issues, they look to implement technology and look to establish retention policies and procedures to implement holds, and that’s all good.  But, at the same time, I think there should be more efforts to educate the employees because they’re the ones who create the electronic documents.  Educate them as to the risks involved and procedures to follow to minimize those risks, such as litigation holds.  I think if you have an educated workforce and they understand that “less is more” when writing electronic documents, that they don’t always have to copy someone or forward something, that they can be more selective in their writing to reduce costs.

I think because of my background and my personal experiences and because I’m not an attorney, I can relate more to the typical worker.  I was on the trading desk and I know the day-to-day stresses of trying to manage email, trying to do the right thing, but also trying to be productive.  I think I can also relate to senior management and advise them that, although they may not recognize the risk, the risk is there.  And, that’s because I’ve been a worker, I’ve been on the trading desk, I’ve been through litigation, I’ve actually reviewed documents and I’ve gone to trial.  So, if you think that not implementing information governance or other eDiscovery policies is a good idea, that’s not the case.  Corporations should see this as an opportunity to manage information and use those management structures for the benefit of their company.

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.