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International eDiscovery

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: Wednesday LTWC 2012 Sessions
 

As noted yesterday, LegalTech West Coast 2012 (LTWC) 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 Los Angeles area with a number of sessions (both paid and free) available and 69 exhibitors providing information on their products and services, including (shameless plug warning!) my company, CloudNine Discovery, which just announced yesterday release of Version 11 of our linear review application, OnDemand®, and will be exhibiting at booth #216 along with our partners, First Digital Solutions.  Come by and say hi!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 21 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 12:00 AM:

Information Governance and Information Management

With the volume of electronically stored information (ESI) growing exponentially and the challenges surrounding managing it, protecting it, and developing effective policies are essential. Social media, email, IMs, web pages, mobile devices and the cloud have made a big job even bigger. How much or how little should you collect? How aggressive should you be? How can you be certain your approach and results are defensible?

Speakers are: Richard E. Davis, JD, e-Discovery Solutions Architect & Founder, Litigation Logistics, LLC; Jack Halprin, Head of eDiscovery, Google; Dawson Horn, III, Senior Litigation Counsel, Tyco International and David Yerich, Director, eDiscovery, UHG Legal Department, United Health Group.

The GARP® Principles and eDiscovery

Attendees will hear from experts on the GARP Principles and eDiscovery as well as:

  • Understand the importance of proactive records management through the eight GARP® Principles
  • Revisit the GARP® Principles and learn how their role is magnified by recent case law
  • Learn what to do before eDiscovery: how GARP® precedes and complements the EDRM

Speakers are: Gordon J. Calhoun, Esq., Lewis Brisbois Bisgaard &, Smith LLP; Lorrie DeCoursey, Former Law Firm Administrator and John J. Isaza, Esq., Partner, Rimon P.C.  Moderator: David Baskin, Vice President of Product Management, Recommind.

1:30 – 3:00 PM:

Practical Handbook for Conducting International eDiscovery – Tips and Tricks

This session will present a truly international view on how to conduct global eDiscovery from a practical perspective, including developing proactive global document retention policies and assuring multi-jurisdictional compliance, best practices of global data preservation and collection, successful data migration across jurisdictions, navigating unique cultural and procedural challenges in various global regions, handling multi-lingual data sets as well as strategic positioning of hosting data centers.

Speakers are: Monique Altheim, Esq., CIPP, The Law Office of Monique Altheim; George I. Rudoy, Founder & CEO, Integrated Legal Technology, LLC and David Yerich, Director, eDiscovery, UHG Legal Department, United Health Group.

Litigation Preparedness Through Effective Data Governance

Be prepared. This panel will go through the benefits of data governance in your litigation preparedness and discuss benefits such as:

  • Auto-classification of legacy and newly created content
  • What is email management and is it ready for prime-time?
  • Review the court's findings on the complexities of ESI, including metadata, native formats, back-up tapes, mobile devices, and legacy technology
  • Key questions to ask before outsourcing ESI to the cloud

Speakers are: Lorrie DeCoursey, Former Law Firm Administrator; John J. Isaza, Esq., Partner, Rimon P.C. and Ayelette Robinson, Director – Knowledge Technology, Littler Mendelson.  Moderator: Derek Schueren, GM, Information Access and Governance, Recommind.

3:30 – 5:00 PM:

Managed and Accelerated Review

As costs for review soar and volumes of data multiply at an almost exponential rate, traditional linear review seems to be giving way to new technologies that will enable faster, better, more defensible eDiscovery results. How can you be assured that this new approach will catch everything that needs to be captured? Will human review become obsolete? What do you need to ask when considering this new technology? How should it be incorporated into your overall litigation strategy?

Speakers are: Matthew Miller, Manager, Fraud Investigation & Dispute Services, Ernst & Young; Robert Miller, Founder, Rise Advisory Group, LLC; Former Discovery Counsel, BP; David Sun, Discovery Project Manager, Google.

eDiscovery Circa 2015: Will Aggressive Preservation/Collection and Predictive Coding be Commonplace?

Who's holding back on Predictive Coding, clients or outside counsel? This session will discuss if aggressive preservation/collection of predictive coding will become commonplace as well as:

  • How aggressive should clients be with preservation/collection?
  • How to use effective searching, sampling, and targeting tools and techniques to not over-collect

Speakers are: Gordon J. Calhoun, Esq., Lewis Brisbois Bisgaard &, Smith LLP; Lorrie DeCoursey, Former Law Firm Administrator and Greg Chan, Senior Regional Litigation Technology Manager, Bingham McCutchen LLP.  Moderator: David Baskin, Vice President of Product Management, Recommind.

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 LTWC this year?  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 Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We 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.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

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, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com 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!

As we’ve done in the past, 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!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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 Sedona Conference International Principles
 

One of our eDiscovery predictions for 2012 was that there would be a continued focus on International eDiscovery and that was also a prediction of three of the other sets of eDiscovery predictions we evaluated.  Multinational companies with operations in the United States are often subject both to the US civil procedure discovery rules as well as the privacy laws of the European Union and other countries where they operate.  Trying to comply with both sets of rules and laws can be difficult when those rules and laws conflict.

To attempt to address those conflicts, Working Group 6 of The Sedona Conference (TSC) has drafted the 2011 Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure and Data Protection (“International Principles”), downloadable here.  This is the European Union Edition, which as noted in the Foreward, states “[a]lthough focused principally on the relationship between U.S. preservation and discovery obligations and the EU Data Protection Directive . . . is intended to apply broadly wherever Data Protection Laws, regardless of national origin, conflict with U.S. preservation and discovery obligations”.

As with other TSC “Principles” documents, there are a collection of principles around which the document is built which are listed at the beginning of the document and then discussed within it.  Here are the six principles:

  1. With regard to data that is subject to preservation, disclosure, or discovery, courts and parties should demonstrate due respect to the Data Protection Laws of any foreign sovereign and the interests of any person who is subject to or benefits from such laws.
  2. Where full compliance with both Data Protection Laws and preservation, disclosure, and discovery obligations presents a conflict, a party’s conduct should be judged by a court or data protection authority under a standard of good faith and reasonableness.
  3. Preservation or discovery of Protected Data should be limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts of law and impact on the Data Subject.
  4. Where a conflict exists between Data Protection Laws and preservation, disclosure, or discovery obligations, a stipulation or court order should be employed to protect Protected Data and minimize the conflict.
  5. A Data Controller subject to preservation, disclosure, or discovery obligations should be prepared to demonstrate that data protection obligations have been addressed and that appropriate data protection safeguards have been instituted.
  6. Data Controllers should retain Protected Data only as long as necessary to satisfy legal or business needs. While a legal action is pending or remains reasonably anticipated, Data Controllers should preserve relevant information, including relevant Protected Data, with appropriate data safeguards.

The appendices include a 15 page Model Protected Data Protective Order and a Cross-Border Data Safeguarding Process + Transfer Protocol, which is an ease-of-reference guide identifying common techniques for achieving best possible legal compliance with conflicting U.S. eDiscovery rules and Data Protection laws when processing and transferring foreign data for U.S. litigation.

As noted in the document, “[o]ther editions of the International Principles are planned for publication by Working Group 6 that will focus on sovereign countries or regions other than the EU and the intersection of their data protection laws and U.S. preservation and discovery requirements.”  So, there is more to come!

To submit a public comment, you can download a public comment form here, complete it and fax (yes, I said fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

So, what do you think?  Do the International Principles provide significant guidance for addressing international discovery issues?  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: Our 2012 Predictions
 

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year.  It’s interesting to identify common trends among the prognosticators and also the unique predictions as well.

But we promised our own predictions for today, so here they are.  One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry.  Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012:

  • Still More ESI in the Cloud: Frankly, this is like predicting “the Sun will be hot in 2012”.  Given the predictions in cloud growth by Forrester and Gartner, it seems inevitable that organizations will continue to migrate more data and applications to “the cloud”.  Even if some organizations continue to resist the cloud movement, those organizations still have to address the continued growth in usage of social media sites in business (which, last I checked, are based in the cloud).  It’s inevitable.
  • More eDiscovery Technology in the Cloud As Well: We will continue to see more cloud offerings for eDiscovery technology, ranging from information governance to preservation and collection to review and production.  With the need for corporations to share potentially responsive ESI with one or more outside counsel firms, experts and even opposing counsel, cloud based Software-as-a-Service (SaaS) applications are a logical choice for sharing that information effortlessly without having to buy software, hardware and provide infrastructure to do so.  Every year at LegalTech, there seems to be a few more eDiscovery cloud providers and this year should be no different.
  • Self-Service in the Cloud: So, organizations are seeing the benefits of the cloud not only for storing ESI, but also managing it during Discovery.  It’s the cost effective alternative.  But, organizations are demanding the control of a desktop application within their eDiscovery applications.  The ability to load your own data, add your own users and maintain their rights, create your own data fields are just a few of the capabilities that organizations expect to be able to do themselves.  And, more providers are responding to those needs.  That trend will continue this year.
  • Technology Assisted Review: This was the most popular prediction among the pundits we reviewed.  The amount of data in the world continues to explode, as there were 988 exabytes in the whole world as of 2010 and Cisco predicts that IP traffic over data networks will reach 4.8 zettabytes (each zettabyte is 1,000 exabytes) by 2015.  More than five times the data in five years.  Even in the smaller cases, there’s simply too much data to not use technology to get through it all.  Whether it’s predictive coding, conceptual clustering or some other technology, it’s required to enable attorneys manage the review more effectively and efficiently.
  • Greater Adoption of eDiscovery Technology for Smaller Cases: As each gigabyte of data is between 50,000 and 100,000 pages, a “small” case of 4 GB (or two max size PST files in Outlook® 2003) can still be 300,000 pages or more.  As “small” cases are no longer that small, attorneys are forced to embrace eDiscovery technology for the smaller cases as well.  And, eDiscovery providers are taking note.
  • Continued Focus on International eDiscovery:  So, cases are larger and there’s more data in the cloud, which leads to more cases where Discovery of ESI internationally becomes an issue.  The Sedona Conference® just issued in December the Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation, illustrating how important an issue this is becoming for eDiscovery.
  • Prevailing Parties Awarded eDiscovery Costs: Shifting to the courtroom, we have started to see more cases where the prevailing party is awarded their eDiscovery costs as part of their award.  As organizations have pushed for more proportionality in the Discovery process, courts have taken it upon themselves to impose that proportionality through taxing the “losers” for reimbursement of costs, causing prevailing defendants to say: “Sue me and lose?  Pay my costs!”.
  • Continued Efforts and Progress on Rules Changes: Speaking of proportionality, there will be continued efforts and progress on changes to the Federal Rules of Civil Procedure as organizations push for clarity on preservation and other obligations to attempt to bring spiraling eDiscovery costs under control.  It will take time, but progress will be made toward that goal this year.
  • Greater Price/Cost Control Pressure on eDiscovery Services: In the meantime, while waiting for legislative relief, organizations will expect the cost for eDiscovery services to be more affordable and predictable.  In order to accommodate larger amounts of data, eDiscovery providers will need to offer simplified and attractive pricing alternatives.
  • Big Player Consolidation Continues, But Plenty of Smaller Players Available: In 2011, we saw HP acquire Autonomy and Symantec acquire Clearwell, continuing a trend of acquisitions of the “big players” in the industry.  This trend will continue, but there is still plenty of room for the “little guy” as smaller providers have been pooling resources to compete, creating an interesting dichotomy in the industry of few big and many small providers in eDiscovery.

So, what do you think?  Care to offer your own predictions?  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: 2012 Predictions – By The Numbers

With a nod to Nick Bakay, “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.  I know what you’re thinking – “oh no, not another set of eDiscovery predictions!”  However, at eDiscovery Daily, we do things a little bit differently.  We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”).  So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes.  I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery.  Oh, and also here, here and here.  Ten sets of predictions in all!  Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints.  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:

  • Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches.  While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity.  Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
  • eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology.  Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices.  We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
  • Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery.  Bet you didn’t see that one coming!  For a look back at cases from 2011 dealing with social media issues, click here.
  • Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”.  For our posts related to Information Governance and management issues, click here.
  • Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud.  Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions.  Perhaps predicting growth of the cloud has become “old hat”.
  • Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
  • Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules.  Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions.  And, one predicted more action on eDiscovery certifications.

Some interesting predictions.  Tune in tomorrow for ours!

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.

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 Year in Review: eDiscovery Case Law, Part 1
 

Happy New Year from all of us at CloudNine Discovery and eDiscovery Daily!  If 2012 is like recent years, there should be plenty of interesting developments in the eDiscovery industry.

However, before we look ahead to the coming year, it’s worthwhile to look back at what transpired in 2011 to see what trends began to emerge last year.  And, there is no better way to do that than to review key cases during the year.  eDiscovery Daily has published 65 posts related to eDiscovery case decisions and activities over the past year, covering 50 unique cases!  Needless to say, a lot happened in the courtroom that impacted the eDiscovery world.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

EDISCOVERY COST REIMBURSEMENT

One of the emerging trends for 2011 was the growing number of cases where the prevailing party was awarded reimbursement of eDiscovery costs.  Maybe that will change the “preserve and produce everything” mentality of some attorneys?  Here are four cases where this issue was addressed:

Sue Me and Lose? Pay My Costs.  In a ruling that may give some plaintiffs' lawyers pause, a federal judge in Pittsburgh has ruled that the winning defendants in an antitrust case are entitled to reimbursement of more than $367,000 in eDiscovery costs.

Plaintiff Responsible for Taxation of eDiscovery Costs.  It appears that making plaintiffs responsible for eDiscovery costs when they lose is becoming a trend. For this case, the Pennsylvania District Court denied the plaintiffs’ motion to eliminate or reduce many of the costs at issue related to electronic discovery but did disallow or reduce some costs, including those incurred for the convenience of counsel.

Another Losing Plaintiff Taxed for eDiscovery Costs.  As noted previously, prevailing defendants are becoming increasingly successful in obtaining awards against plaintiffs for reimbursement of eDiscovery costs. In this case, a California District Court granted the defendants summary judgment on non-infringement and dismissed their counterclaims. The judgment included eDiscovery costs as valid taxed costs against the plaintiff, based on Rule 54(d) which creates a presumption in favor of awarding costs to the prevailing party.

Award for Database Costs Reversed Due to Cost Sharing Agreement.  In this case, Ricoh looked to have the district court’s award of costs to Synopsys reversed for the parties’ use of Stratify for the production of email. While the appellate court decided that the district court properly decided that costs related to the database could be recovered pursuant to 28 U.S.C. § 1920(4), it nonetheless reversed the lower court’s award due to the parties' agreement to split the costs.

FORM OF PRODUCTION

There were several cases related to the form and format of produced ESI, with a number of key issues being debated in the courtroom.  Here are eight cases where production format decisions were made.

Responses to FOIA Requests Must Be Searchable.  Judge Shira A. Scheindlin ruled that federal agencies must turn over documents that include "metadata", which allows them to be searched and indexed.  Indicating that "common sense dictates" that the handling of FOIA requests should be informed by "the spirit if not the letter" of the Federal Rules of Civil Procedure, Judge Scheindlin indicated the government offered "a lame excuse" for delivering non-searchable documents.

Never Mind! Judge Scheindlin Withdraws FOIA Requests Opinion.  Four months later, Judge Scheindlin withdrew that opinion.

Facebook Did Not Deduce That They Must Produce.  In this case, United States Magistrate Judge Howard Lloyd of the Northern District of California compelled Facebook to produce ESI that was previously produced in a converted, non-searchable format and further ordered Facebook not to use a third-party vendor's online production software to merely “provide access” to it. The court’s order granting the plaintiff’s Motion To Compel Production addressed the importance of ESI Protocols, the requirement to produce ESI in native formats, and production of documents versus providing access to them.

Downloading Confidential Information Leads to Motion to Compel Production.  The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

Are Attachments Part of the Email Or Are They Separate?  A Special Master recently investigated the legal standard concerning whether or not attachments must be produced with the emails to which they were attached in discovery proceedings, and determined that there is no certain answer to be found in case law precedent.

Court Says Lack of eDiscovery Rules for Criminal Cases is a Crime.  A New York district court recently ordered the United States Government to reproduce thousands of pages of electronic discovery materials in a criminal case involving the distribution of cocaine. In this case, the Government produced thousands of pages of electronic documents and a number of audio recordings, none of which were text searchable. The court ultimately decided that the onus of producing searchable materials for eDiscovery fell on the Government itself.

Produced ESI Doesn’t Need to be Categorized, Even When Voluminous.  In this case, the defendants sought to compel re-production by the Government of ESI in categorized batches relating to transactions with certain characteristics. Judge Victor Marrero of the Southern District of New York denied the defendants’ motion.

New York Supreme Court Requires Production of Software to Review Files.  In this case, the petitioner requested records from the Department of Taxation and Finance in New York that were responsive to petitioner's request under Freedom of Information Law (FOIL) for records related to sales tax audit. The petitioner then moved to compel production of the Department’s Audit Framework Extension software program in order to install it on his computer and view the electronic files. The petitioner's motion was denied, not once, but twice. Would a final appeal result in compelling production of the software?

INTERNATIONAL EDISCOVERY

As companies “go global” and more data is stored “in the cloud”, discoverability of ESI within international jurisdictions is becoming increasingly in dispute.  Here are two cases with global ramifications:

Bankruptcy Court Denies Foreign Access to Debtor's Emails.  A Southern District of New York United States Bankruptcy Court denied access to a debtor's emails on July 22, in a foreign request involving international eDiscovery. In this case, the U.S. Bankruptcy Court determined that to permit a relief request from a German insolvency administrator would directly contravene the "fundamental principles" of U.S. public policy by undermining the right to privacy in electronic communications and the right of parties involved in any court order to receive notice of such proceedings and of their involvement.

U.S. Court Rules on ECPA Protection of Emails in the Cloud.  An October 3 decision by the Ninth Circuit Court of Appeals offers new clarity in defining and protecting the eDiscovery rights of non-U.S. nationals using U.S. services online, by ruling that emails stored on servers located within the U.S. are protected by national laws on ESI.

Tune in tomorrow for more key cases of 2011!

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: U.S. Court Rules on ECPA Protection of Emails in the Cloud
 

An October 3 decision by the Ninth Circuit Court of Appeals offers new clarity in defining and protecting the eDiscovery rights of non-U.S. nationals using U.S. services online, by ruling that emails stored on servers located within the U.S. are protected by national laws on ESI.

In Suzlon Energy Ltd v. Microsoft Corporation, the court determined that holders of online accounts whose servers are located in the U.S., regardless of their location or nationality, are protected by the Electronic Communications Privacy Act of 1986, commonly known as the "ECPA." The ECPA ensures that the disclosure of emails by electronic communication service providers is limited and restricted to specific circumstances.

The Suzlon case originated out of an Australian case brought by an Indian company (Suzlon) against an Indian defendant, Rajagopalan Sridhar and put the Ninth Circuit Court's opinion on the reach of the ECPA to the test.

  • The plaintiff's legal counsel sought access to emails in the defendant's Hotmail account, stored on Microsoft servers located in the U.S.
  • The defendant did not provide consent for his emails to be used in discovery, nor did Microsoft consent to release the emails in question.
  • Microsoft's objection brought the case before the U.S. District Court for the Western District of Washington and later before the Ninth Circuit Court of Appeals, both of which agreed that the emails were protected by the ECPA.
  • Despite the plaintiff's and defendant's Indian nationality, and the fact that the suit in question was Australian, the U.S. court ruled in a manner that creates a powerful precedent for future lawsuits related to electronic communication providers whose servers are located in the U.S. As a result of this case, it has become clear that any users with accounts in U.S.-held cloud services will be subject to the same protections under the ECPA as a U.S. citizen.

So, what do you think? Does this ruling offer fair and sensible protect to U.S.-based companies and the users of their cloud services, or does it unnecessarily complicate the field of international eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: To Get the Latest Trends, Go Virtual
 

Many of you have likely attended at least one LegalTech trade show at some point.  LegalTech New York (LTNY) happens every year in the late January/early February time frame and there is also a LegalTech West Coast (LTWC) show later in the year (this year it was in mid-May).  LTNY and LTWC usually have several good sessions, as well as the latest product and service offerings from exhibitors.  But, what if you can’t make it to one of these shows?

For those who can’t travel, but still wish to stay up to date on the latest trends, American Lawyer Media (ALM) has begun offering Virtual LegalTech (VLT) sessions quarterly.  This is the second full year that these sessions have been available and the sessions for this quarter are being held tomorrow (many of which are CLE eligible, at least in certain jurisdictions).  These online sessions are free to attend – you simply have to provide information to obtain a login ID and password.

VLT is set up just like an actual trade show.  There’s a “campus” with two exhibit halls, a CLE Center auditorium, a lounge and a resource room.  Copies of slides for presentations are usually available a short time after the presentation is conducted in the resource room.  You can even check out vendor “booths” in the virtual exhibit halls!

For tomorrow’s “show”, there are several sessions related to eDiscovery concepts, including:

9:00 am – 10:00 am ET:

Recover Costs, Improve Profits & Reduce Risk: Cost Recovery for eDiscovery Content

Description: Law firms, like all businesses, are constantly looking for ways to reduce costs and improve profits. Traditional cost recovery focuses on tracking, managing and assigning costs associated with activities such as scanning, faxing, printing, and e-mailing. To make documents eDiscoverable at point of capture, documents should be tagged with metadata such as filename, matter, client and billing code information; easing the burden on staff and lawyers, so more time can be spent strategizing the case and less time at the device handling administrative tasks. This session will explore various practices for integrating eDiscovery into traditional cost recovery tactics. Industry experts will also discuss tips and tricks to help profits soar while also reducing risk of data loss.

Speakers are: Chris Wyszkowski – Nuance Communications; Thomas Goldman, JD – Author of Technology in the Law Office, Second Edition

11:00 am – 12:00 pm ET:

Attack of the Clouds: Virtual Privacy & Online Security

Description: Look at cloud computing through the lens of eDiscovery and its easy to become confused as to whether the cloud is a great equalizer; allowing firms of all sizes to spend less time and money on the mechanics of eDiscovery, or the refuge of the naïve for whom its only a matter of time until their miracle solution falls flat. The cloud offers great cost savings and convenience to law practitioners, but there are very real concerns about cloud privacy and security.

Our expert panel will share a unique legal and technical perspective on privacy and security in the cloud, looking at case law regarding the liability of cloud providers and how it impacts the health of the cloud industry. This informative discussion will span legal and cybersecurity issues with the cloud, giving you a clear view of the risks and rewards involved with this exciting new technology.

Speakers are: Caitlyn Murphy, Esq. – Senior Product Manager, AccessData Group; Joshua Gilliland – Attorney and Author of the Bow Tie Law Blog; Jeffrey Dye – CISSP, Network Defense and Digital Forensics, General Dynamics

12:00 pm – 1:00 pm ET:

Unbundling Litigation: Selecting and Using E-Discovery Counsel

Description: There was a time when corporations expected litigation counsel to handle all aspects of litigation, including discovery.  However, as e-discovery becomes more complex and mistakes are increasingly common, there is a trend toward unbundling litigation and selecting a separate e-discovery counsel.  E-discovery counsel is often a separate law firm that specializes in e-discovery issues and can do the work better, faster and cheaper than general litigation lawyers.  This panel will discuss the pros and cons of using e-discovery counsel in complex litigation.  We will also discuss best practices for selecting and integrating e-discovery counsel into the litigation process.

Speakers are: Chris Dale – Moderator and Author of the eDisclosure Information Project (UK); Darryl Shetterly – Partner, LeClair Ryan, LLC; William Belt – Partner and Team Leader, Discovery Solutions Practice, LeClair Ryan LLC; Heather Bryden – Assistant General Counsel. e-Discovery Manager, Capitol One Bank

2:00 pm – 3:00 pm ET:

Information Security – A Systematic Approach to Protecting Your Organization’s Data During the eDiscovery Process

Description: Information security is a high priority concern for both corporations and law firms in the eDiscovery process. The challenge is translating this concern into practice. Failing to take special care to ensure security can expose your company or client’s most critical information and breaches the ethical standards of  client-lawyer confidentiality. A centrally managed, systematic approach based upon a formal management system is the best way to ensure the highest level of information security.

In this session, we will offer an overview of approaches that will allow lawyers to ethically meet their  professional obligations related to information security best practices, standards and processes, such as:

  • Why a process driven approach to information security is needed?
  • Who should be responsible for information security in the eDiscovery process?
  • What are the hallmarks of good information security?
  • How to evaluate information security practices in your eDiscovery partner or vendor?

Speakers are: Doug Stewart – EnCE, Director of Technology, Daegis; Andy Teichholz, Esq. – Senior eDiscovery Consultant, Daegis; Mark Michels – Former eDiscovery and Litigation Counsel, Cisco; Aaron Crews – eDiscovery Counsel, Littler Mendelson

3:00 pm – 4:00 pm ET:

Judge's Panel: Leveraging Technology to Reduce the Challenges of Discovery

Description: What are the most important facts that will allow you to leverage the technology created to assist attorneys with litigation and discovery? This group of distinguished judges will spotlight decisive concerns, Federal Rules of Civil Procedure reform and what can be done to alleviate the responsibility and obligation that is essential to compliant discovery practice. The most technologically advanced methods to effectively approach the planning and managing of litigation preparation to meet key requirements will be discussed. This session is a “must attend” for those interested is lessening the burden of discovery.

Speakers are: Hon. Frank Maas – Magistrate Judge, Southern District of New York; Hon. Patty Shwartz – Magistrate Judge, District of Newark, NJ and Adjunct Professor of Law, Fordham University Law School; Hon. Ron Hedges – Former Magistrate Judge

4:00 pm – 5:00 pm ET:

Cross-Border Discovery and Investigations – Developing a Strategic Response Plan

Description: Companies operating in the global economy face increasing scrutiny from regulators in the US and Europe, with enhanced risk of related cross-border litigation and discovery. Join Howard Sklar, Senior Counsel of Recommind and Denise Backhouse, Associate, eData Practice, Morgan Lewis, as they address the data management issues in developing a strategic, cost-effective plan for responding to international discovery and investigations:

  • Data protection issues in European/US investigations and discovery:  the legal framework and recent developments
  • Preparing for investigations and discovery: creating a response plan; establishing a team; effective communication and privilege protection
  • Best practices for handling data in international matters

Speakers are: Denise E. Backhouse – Associate, eData Practice Morgan Lewis; Howard Sklar – Senior Counsel Recommind, Inc.

To “attend” any of these sessions or learn more about Virtual Legal Tech, go to Virtual Legal Tech Show.

So, what do you think?  Do you attend virtual seminars?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Bankruptcy Court Denies Foreign Access to Debtor's Emails

A Southern District of New York United States Bankruptcy Court denied access to a debtor’s emails on July 22, in a foreign request involving international eDiscovery.

In re Toft, No. 11-11049 (ALG), 2011 WL 3023544 (Bankr. S.D.N.Y. July 22, 2011), the U.S. Bankruptcy Court determined that to permit a relief request from a German insolvency administrator would directly contravene the “fundamental principles” of U.S. public policy by undermining the right to privacy in electronic communications and the right of parties involved in any court order to receive notice of such proceedings and of their involvement.

  • Dr. Martin Prager, in his role as authorized insolvency administrator in a German bankruptcy proceeding, sought permission to access the mail and electronic correspondence of Dr. Jurgen Toft. Although the majority of such correspondence was located under European purview, two of the email accounts belonging to the debtor were found to be stored on servers owned by U.S. Internet Service Providers (“ISPs”).
  • The Munich District Insolvency Court had previously approved a Mail Interception Order, which had been granted recognition by the English High Court of Justice before being brought before the United States Bankruptcy Court.
  • Prager sought a U.S. court order that would grant comity to his German Mail Interception Order and compel the two American ISPs to provide him with “all of the Debtor’s e-mails currently stored on their servers and to deliver to Prager copies of all e-mails received by the Debtor in future,” without notice being provided to the debtor by either the court or the ISPs.
  • Despite the approval of the English High Court of Justice, the US Bankruptcy Court found that it could not grant relief to Prager’s request. The court determined that to grant access to emails as requested by Prager would be “banned under U.S. law, and it would seemingly result in criminal liability under the Wiretap Act and the Privacy Act for those who carried it out.”
  • In addition, the court observed that providing permission for access to emails without informing the debtor would also be contrary to U.S. law, which requires that all parties involved in any court order must receive notice.
  • As a result, the court concluded that the relief request was impossible to grant without running “manifestly contrary” to U.S. law and public policy, and did not honor Prager’s request.

So, what do you think? Was the court’s rejection of Prager’s request the only answer, or were there other routes that could have been taken in dealing with this international eDiscovery request? Please share any comments you might have or if you’d like to know more about a particular topic.