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eDiscovery Trends: For an Appropriate eDiscovery Outcome, Call the Master
 

Special Master, that is.

Last week, Fios sponsored a webcast entitled Special Masters & e-Discovery with Craig Ball, who, in addition to being a prolific contributor to continuing legal and professional education programs throughout the US (and previous thought leader interviewee on this blog) has served as court-appointed special master in 30 cases (including at least one case covered here).  Not surprisingly, the webcast was very informative, reflecting Craig’s considerable experience and knowledge in having served in that role in so many cases.  A few highlights:

  • Appointing a Special Master: In Federal cases, Fed. R. Civ. P. 53 discusses the ability for a court to appoint a master with the parties’ consent.  Several states also have equivalent rules, for example, Rule 171 of the Texas Rules of Civil Procedure governs the ability to do so in Texas.
  • Circumstances Where Special Master is Most Often Required: Special masters are typically called in when special knowledge is required that neither party (nor their experts) possesses, or when one party is suspected of malfeasance.  Craig estimated that about half of the thirty cases where he has been retained have been because of suspected malfeasance by one party.  From an expertise standpoint, Craig noted that he most often fills this role related to a computer forensics need.
  • To Be “Special”, You Need to “Master” More than One Skill: Special masters need not only to be able to understand the law, they also need to understand systems, forms of ESI, mechanisms for preservation and formats of production.  In other words, they need the ability to “speak Geek”.
  • Special Masters Are Different From Mediators: A mediator’s job is to obtain agreement between parties.  While a special master may also do that to a degree, he/she must also apply good sense to the situation.  Craig’s analogy was that “just because both lawyers believe that they can fly” doesn’t mean that the special master should concur with that agreement.
  • Why Not Rely on the Judge for Such Services?:  Craig noted that many judges don’t have the technical expertise to adequately address all eDiscovery issues, so a special master can be called upon to provide recommendations regarding those issues to the Court.
  • Special Masters Are, Unsurprisingly, Not Free: Typically, they charge “senior partner” rates, reflecting their advanced level of expertise and experience.  Who pays?  It depends on the case, but potential malfeasance by a party can slant the costs to that party.  Special masters add value that can result in potentially significant cost savings to one or both parties, so they typically recoup those costs (and, often, a lot more).

The webcast also referenced two articles related to the subject of special masters and eDiscovery:

  • E‐Discovery: A Special Master's Perspective: Written by Craig himself, this nine page article talks about the pros and cons of Special Masters, the eight questions that lawyers need to be able to answer when working with special masters and the three typical reasons that eDiscovery fails, among other topics.  It also provides a terrific appendix with a two page Exemplar ESI Special Master Appointment Order.
  • Special Masters and e-Discovery: The Intersection of Two Recent Revisions to Federal Rules of Civil Procedure: This fifty-nine page article was written by The Honorable Shira A. Scheindlin (United States District Judge for the Southern District of New York and presiding judge of the notable Zubulake v. UBS Warburg case) & Jonathan M. Redgrave (founding partner of the firm of Redgrave, Daley, Ragan & Wagner and Chair Emeritus of The Sedona Conference’s® Working Group on Best Practices for Electronic Document Retention and Production).  It discusses the changes to Rule 53, governing the appointment of special masters and the changes to the Federal Rules for eDiscovery, suggesting appropriate uses for special masters for legal and technical issues.

If you missed the webcast (which is too bad, because Craig was entertaining and informative, as always), these articles provide good information on the use of special masters in eDiscovery.

So, what do you think?  Have you ever used a special master to address eDiscovery 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 Best Practices: After Production, Your eDiscovery Obligations Are Not Necessarily Over
 

While a number of attorneys have yet to still embrace and fully understand eDiscovery best practices, most at least understand that there are (since 2006) Federal Rules of Civil Procedure that address discovery of electronically stored information (ESI) and (for most, but not all) similar rules at the state level.  More are learning to conduct an initial discovery conference (a.k.a., “meet and confer”) with opposing counsel to address eDiscovery requirements at the beginning of a case and more now not only understand the requirements to preserve potentially responsive data once it is clear that litigation is imminent but also how to conduct the review and production in a defensible manner.  However, as noted in this Texas Lawyer article, How to Prepare for E-Discovery Supplementation Obligations (written by Ross Cunningham and published in Law Technology News), an attorney’s eDiscovery obligations are not necessarily over after production.

As the author notes, “six months to a year into the process, most lawyers forget a key obligation. Under Texas and federal rules, all parties have an ongoing duty to supplement discovery responses.”  Failure to meet ongoing obligations to continue to preserve data and periodically update searches to retrieve new information could – like any other failure to meet obligations – result in sanctions.

The author has created a clever acronym to address a party’s supplementation obligations: PREPARE.  Here are the components of that acronym:

  • Preserve: It’s not just important to issue the hold correctly, but also to periodically follow up on hold notices to keep custodians on notice of their obligation to continue to preserve the data in question until they are instructed that they can release it (which is also very important to ensure that information no longer subject to hold doesn’t continue to be preserved outside of the organization’s document retention policies).  Sometimes, the hold may need to be expanded to additional custodians as they case continues.
  • Research: The more the attorney knows about the case and the client, the better he/she will be able to assess whether custodians are continuing to create discoverable information throughout the case and manage supplementary eDiscovery obligations accordingly.
  • Execute: As the author notes, “[t]his means drafting an e-discovery plan — and sticking to it.”  Up front planning to meet with the client to identify all sources of ESI will help ensure a complete preservation and collection process and also create a “road map” for supplemental discovery.  However, it’s also important to periodically re-assess the plan and update it where appropriate as new custodians may be identified (or even hired).
  • Proactive: Educating the client on what goes into an eDiscovery plan and best practices for conducting that plan, along with education on the consequences for failing to comply (including sanctions) will help ensure a smooth eDiscovery process.  After all, the client knows their data better than the attorney ever will.
  • Ally: By allying with trusted providers who are involved from the planning stages, that provider should be reliable to support the supplemental eDiscovery process.
  • Recalibrate: No matter how prepared you are, you cannot always anticipate every situation, so you need to be prepared to adjust (“recalibrate”) the plan when unforeseen occurrences happen.  When you have a well thought out eDiscovery plan that is executed well, courts tend to be more forgiving of anomalies.
  • Expectations: Setting expectations with opposing counsel during the initial discovery conference will help determine whether discoverable information will continue to be created over the course of discovery and hopefully obtain agreement as to how often supplemental searches will be performed.

Of course, the order of these items might not fit the actual order of execution.  Research, Execute, Proactive, Expectations, Ally, Preserve, Recalibrate might be more appropriate.  But, REPEAPR doesn’t make nearly as catchy an algorithm!

So, what do you think?  Have you dealt with supplementary eDiscovery in any of your cases?  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 Best Practices: See Jane Teach – How To Manage Litigation Projects
 

One major problem that many organizations are facing these days in large-scale litigation is that the demand for project managers far exceeds the supply.  Law firms find themselves moving talented — but inexperienced — professionals into project management positions. Electronic discovery experts, litigation paralegals, technically savvy litigation support professionals, and even attorneys are taking on project management responsibilities with little experience or training.

You may have noticed we haven’t had any new posts from Jane Gennarelli lately.  Believe it or not, we all have “day jobs” here at eDiscoveryDaily and Jane’s “day job” is as principal of Magellan’s Law Corporation> where she has been assisting litigators in effectively handling discovery materials for over 30 years.  In that role, Jane has been busy lately with a Magellan's Law training program for aspiring litigation project managers.

Magellan’s Law Project Management training program is designed for project managers who need help to develop expertise on project management best practices.  The project management skills, components, and techniques covered in the class will prepare students to manage any of the document handling tasks associated with litigation discovery – everything from identification and collection through production.  Among other things, students learn:

  • Project management tasks in discovery
  • Skills and techniques for managing project staff
  • Skills and techniques for managing clients
  • How to prepare reliable schedules and budgets
  • Mechanisms for controlling costs throughout a project
  • Techniques for ensuring high-quality and defensible work product
  • Tips for effectively managing time
  • How to build good relationships with clients and project stakeholders
  • Problem solving techniques and skills
  • How to evaluate, select and manage the right vendors for a project

The class is taught at your facility, at your convenience, so Jane comes to you!  To find out more about the class, click here.  You can also give Jane a call @ (210)561-5626 to find out more.  She can put you in touch with students who have taken the class to enable you to hear firsthand from people in the trenches who have benefitted from the class.

As for Jane’s contribution to eDiscovery Daily, she will be publishing a new series to provide best practices for non-attorneys providing litigation and eDiscovery support services to achieve success in a law firm.  This series should debut in the next week or so.  Welcome back, Jane!

So, what do you think?  Do you feel overwhelmed trying to manage litigation and eDiscovery projects?  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: One Third of Surveyed Attorneys Plans to Increase eDiscovery Spending
 

A new survey from Robert Half Legal eDiscovery Services finds that spending by organizations on electronic discovery-related services grew in 2011 and should continue to increase through 2013.  According to the survey of 350 attorneys in large law firms and corporations in the US and Canada, 23 percent of attorneys surveyed said their law firms and corporate legal departments increased eDiscovery expenditures in the last year, with 71 percent indicating that spending remained the same and just 2 percent indicating that they reduced spending.  For 2012 and 2013, nearly one-third (33 percent) of attorneys expected to increase spending on eDiscovery, while 56 percent expect no change in spending and 4 percent expect to decrease eDiscovery spending.

Other interesting findings from the survey include:

  • 27 percent of attorneys surveyed indicated that they don’t currently have a standard operating procedure in place in the event they receive an unexpected request for discovery;
  • 15 percent of survey participants are “not at all confident” that their organization has an eDiscovery plan in place to respond to a request for cloud-based information in response to a regulatory request or litigation;
  • 22 percent of attorneys surveyed are “not at all confident” that their organization has an eDiscovery plan in place to respond to a request for information from social media sites in response to a regulatory request or litigation;
  • Survey respondents indicated that their organization has received an average of 16 external requests for electronically stored information (ESI) in the last three years;
  • 12 percent of attorneys surveyed stated that issues or problems with collecting or reviewing ESI negatively affected a case or ruling for their law firm or company in the last three years;
  • 22 percent of responding corporate lawyers said their organization increased its handling of eDiscovery projects in house within the last year.

This study, and the IBISWorld study from last fall, point to continued growth in eDiscovery activities and spending.  It seems apparent that, as data within the world continues to double every 1.5 to 2 years, many law firms and corporations are having to “ramp up” to meet their eDiscovery obligations.

So, what do you think?  Do these results surprise you?  If so, are they higher or lower than you expected?  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: Tom Gelbmann of Gelbmann & Associates, LLC
 

This is the fourth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC has advised law firms and Corporate Law Departments to realize the full benefit of their investments in Information Technology.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; last year he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?  And which trend(s), if any, haven’t emerged to this point like you thought they would?

I’m seeing an interesting trend regarding offerings from traditional top tier eDiscovery providers. Organizations who have invested in eDiscovery related technologies are beginning to realize these same technologies can be applied to information governance and compliance and enable an organization to get a much greater grasp on its total content.  Greater understanding of location and profile of content not only helps with eDiscovery and compliance, but also business intelligence and finally – destruction – something few organizations are willing to address.

We have often heard – Storage is cheap. The full sentence should be: Storage is cheap, but management is expensive.  I think that a lot of the tools that have been applied for collection, culling, search and analysis enable organizations to look at large quantities of information that is needlessly retained. It also allows them to take a look at information and get some insights on their processes and how that information is either helping their processes or, more importantly, hindering those processes and I think it's something you're going to see will help sell these tools upstream rather than downstream.

As far as items that haven't quite taken off, I think that technology assisted coding – I prefer that term over “predictive coding” – is coming, but it's not there yet.  It’s going to take a little bit more, not necessarily waiting for the judiciary to help, but just for organizations to have good experiences that they could talk about that demonstrate the value.  You're not going to remove the human from the process.  But, it's giving the human a better tool.  It’s like John Henry, with the ax versus the steam engine.  You can cut a lot more wood with the steam engine, but you still need the human.

What are your general observations about LTNY this year and how it fits into emerging trends?

Based on the sessions that I've attended, I think there's much more education.  There's just really more practical information for people to take away on how to manage eDiscovery and deal with eDiscovery related products or problems, whether it's cross-border issues, how to deal with the volumes, how to bring processes in house or work effectively with vendors.  There's a lot more practical “how-tos” than I've seen in the past.

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

Well, I think one of the things I'm very proud of with EDRM is that just before LegalTech, we put out a press release of what's happening with the projects, and I'm very pleased that five of the nine EDRM projects had significant announcements.  You can go to EDRM.net for that press release that details those accomplishments, but it shows that EDRM is very vibrant, and the teams are actually making good progress. 

Secondly, George Socha and I are very proud about the progress of Apersee, which was announced last year at LegalTech.  We've learned a lot, and we've listened to our clientele in the market – consumers and providers.  We listened, and then our customers changed their mind.  But, as a result, it's on a stronger track and we're very proud to announce that we have two gold sponsors, AccessData and Nuix.  We’re also talking to additional potential sponsors, and I think we'll have those announcements very shortly.

Thanks, Tom, for participating in the interview!

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

eDiscovery Trends: Jim McGann of Index Engines
 

This is the third of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Jim McGann.  Jim is Vice President of Information Discovery at Index Engines.  Jim has extensive experience with the eDiscovery and Information Management in the Fortune 2000 sector. He has worked for leading software firms, including Information Builders and the French-based engineering software provider Dassault Systemes.  In recent years he has worked for technology-based start-ups that provide financial services and information management solutions.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?  And which trend(s), if any, haven’t emerged to this point like you thought they would?

I think what we're seeing is a lot of people becoming a bit more proactive.  I may combine your questions together because I'm surprised that people haven’t become proactive sooner.  LegalTech has included a focus on litigation readiness for how long? Ten years or so?  And we're still dealing with how to react to litigation, and you're still seeing fire drills occur.  There’s still not enough setting up of environments in the corporate world and in the legal world that would enable customers to respond more quickly.  It surprises me how little has been developed in this regard.. 

I think the reason for the slow start is that there are a lot of regulations that have been evolving and people haven't really understood what they need to prepare and how to react.  There’s been ten years of LegalTech and we're still struggling with how to respond to basic litigation requests because the volume has grown, accessibility arguments have changed, Federal rules have been solidified, and so forth.

What we're seeing when we go and talk to customers (and we talk to a lot of end-user customers that are facing litigation) is IT on one end of the table saying, ‘we need to solve this for the long term’, and litigation support teams on the other end of the table saying, ‘I need this today, I’ve been requesting data since July, and I still haven't received it and it's now January’.  That's not good.

The evolution is from what we call “litigation support”.  Litigation support, which is more on the reactive side to proactive litigation readiness, expects to be able to push a button and put a hold on John Doe's mailbox.  Or, specifically find content that’s required at a moment's notice.

So, I think the trend is litigation readiness.  Are people really starting to prepare for it?  Every meeting that we go into, we see IT organizations, who are in the compliance security groups, rolling up their sleeves and saying I need to solve this for my company long term but we have this litigation.  It's a mixed environment.  In the past, we would go meet with litigation support teams, and IT wasn't involved.  You're seeing buzz words like Information Governance.  You're seeing big players like IBM, EMC and Symantec jumping deep into it.

What's strange is that IT organizations are getting involved in formalizing a process that hasn't been formalized in the past.  It's been very much, maybe not “ad hoc”, but IT organizations did what they could to meet project needs.  Now IT is looking at solving the problem long term, and there’s a struggle.  Attorneys are not the best long term planners – they're doing what they need to do.  They've got 60 days to do discovery, and IT is thinking five years.  We need to balance this out.

What are your general observations about LTNY this year and how it fits into emerging trends?

We're talking to a lot of people that are looking at next generation solutions.  The problems have changed, so solutions are evolving to address how you solve those problems.

There's also been a lot of consolidation in the eDiscovery space as well, so people are saying that their relationship has changed with their other vendors.  There have been a lot of those conversations.

I'm not sure what the attendance is at this year’s show, but attendees seem to be serious about looking for new solutions.  Maybe because the economy was so bad over the past year or maybe because it's a new budget year and budgets are freeing up, but people are looking at making changes, looking at new solutions.  We see that a lot with service providers, as well as law firms and other end users.

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

We’ve announced the release of Octane Version 4.3, which preserves files and emails at a bit level from MS Exchange and IBM Lotus Notes, as well as indexing forensics images and evidence files at speeds reaching 1TB per hour using a single node.  Bit-for-bit email processing and forensic image indexing speeds are unprecedented breakthroughs in the industry.  Bit-level indexing is not only faster but also more reliable because email is stored in its original format with no need for conversion.  Index Engines can also now index terabytes of network data including forensic images in hours, not weeks, like traditional tools.  So, we’re excited about the new version of Octane.

We’ve also just announced a partnership with Merrill Corporation, to provide our technology to collect and process ESI from networks, desktops, forensic images and legacy backup tapes, for both reactive litigation and proactive litigation readiness.  Merrill has recognized the shift in reactive to proactive litigation readiness that I mentioned earlier and we are excited to be aligned with Merrill in meeting the demands of their customers in this regard.

Thanks, Jim, 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!

eDiscovery Trends: George Socha of Socha Consulting
 

This is the first of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

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

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

I may have said this last year too, but it holds true even more this year – if there's an emerging trend, it's the trend of people talking about the emerging trend.  It started last year and this year every person in the industry seems to be delivering the emerging trend.  Not to be too crass about it, but often the message is, "Buy our stuff", a message that is not especially helpful.

Regarding actual emerging trends, each year we all try to sum up legal tech in two or three words.  The two words for this year can be “predictive coding.”  Use whatever name you want, but that's what everyone seems to be hawking and talking about at LegalTech this year.  This does not necessarily mean they really can deliver.  It doesn't mean they know what “predictive coding” is.  And it doesn't mean they've figured out what to do with “predictive coding.”  Having said that, expanding the use of machine assisted review capabilities as part of the e-discovery process is a important step forward.  It also has been a while coming.  The earliest I can remember working with a client, doing what's now being called predictive coding, was in 2003.  A key difference is that at that time they had to create their own tools.  There wasn't really anything they could buy to help them with the process.

Which trend(s), if any, haven’t emerged to this point like you thought they would?

One thing I don't yet hear is discussion about using predictive coding capabilities as a tool to assist with determining what data to preserve in the first place.  Right now the focus is almost exclusively on what do you do once you’ve “teed up” data for review, and then how to use predictive coding to try to help with the review process.

Think about taking the predictive coding capabilities and using them early on to make defensible decisions about what to and what not to preserve and collect.  Then consider continuing to use those capabilities throughout the e-discovery process.  Finally, look into using those capabilities to more effectively analyze the data you're seeing, not just to determine relevance or privilege, but also to help you figure out how to handle the matter and what to do on a substantive level.

What are your general observations about LTNY this year and how it fits into emerging trends?

Well, Legal Tech continues to have been taken over by electronic discovery.  As a result, we tend to overlook whole worlds of technologies that can be used to support and enhance the practice of law. It is unfortunate that in our hyper-focus on e-discovery, we risk losing track of those other capabilities.

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

With regard to EDRM, we recently announced that we have hit key milestones in five projects.  Our EDRM Enron Email Data Set has now officially become an Amazon public dataset, which I think will mean wider use of the materials.

We announced the publication of our Model Code of Conduct, which was five years in the making.  We have four signatories so far, and are looking forward to seeing more organizations sign on.

We announced the publication of version 2.0 of our EDRM XML schema.  It's a tightened-up schema, reorganized so that it should be a bit easier to use and more efficient in the operation.

With the Metrics project, we are beginning to add information to a database that we've developed to gather metrics, the objective being to be able to make available metrics with an empirical basis, rather than the types of numbers bandied about today, where no one seems to know how they were arrived at. Also, last year the Uniform Task Billing Management System (UTBMS) code set for litigation was updated.  The codes to use for tracking e-discovery activities were expanded from a single code that covered not just e-discovery but other activities, to a number of codes based on the EDRM Metrics code set.

On the Information Governance Reference Model (IGRM) side, we recently published a joint white paper with ARMA.  The paper cross-maps the EDRMs Information Governance Reference Model (IGRM) with ARMA's Generally Accepted Recordkeeping Principles (GARP).  We look forward to more collaborative materials coming out of the two organizations.

As for Apersee, we continue to allow consumers search the data on the site for free, but we also are longer charging providers a fee for their information to be available.  Instead, we now have two sponsors and some advertising on the site.  This means that any provider can put information in, and everyone can search that information.  The more data that goes in, the more useful the searching process comes because.  All this fits our goal of creating a better way to match consumers with the providers who have the services, software, skills and expertise that the consumers actually need.

And on a consulting and testifying side, I continue to work a broad array of law firms; corporate and governmental consumers of e-discovery services and software; and providers offering those capabilities.

Thanks, George, for participating in the interview!

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

eDiscovery Case Law: Practicing Law and Discovery Services Companies Don’t Mix
 

At least, not in DC.

Vendors seeking to assist attorneys in offloading substantial portions of discovery-practice need to be careful not to cross the line into the unauthorized practice of law, according to a new ethics opinion by the District of Columbia Bar. On January 12, 2012, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law released Opinion 21-12 regarding the “Applicability of Rule 49 to Discovery Services Companies.” This opinion provides guidelines for attorneys and discovery vendors regarding supervision of large-scale document reviews and vendors’ marketing practices, which are intended to prevent the unauthorized practice of law (UPL). Under these guidelines, the role of discovery-service providers in the e-discovery process must be limited to administrative, technical, and logistical tasks. This opinion and these guidelines additionally make clear that the onus of supervising a discovery project rests squarely on the shoulders of the D.C. Bar member who holds the attorney-client relationship with the client.

Rule 49 of the District of Columbia Court of Appeals provides:

No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.

The ‘practice of law’ includes “[f]urnishing an attorney or attorneys, or other persons” to provide legal services. Rule 49(b)(2)(F).

Opinion 21-12 provides the following “principles” to provide guidance regarding “the permissible scope of services that may be performed [by document services companies]” without running afoul of the UPL rules. Opinion, at 7.

First, Rule 49’s UPL rules apply only to the provision of legal services in the District of Columbia. To the extent a discovery provider advertises itself as being able to assist with any discovery project occurring in the district, even if the vendor is not physically located in the district, then Rule 49’s prohibitions apply because such company would be viewed as “holding itself out” as being able to provide legal services in the district. Opinion, at 7–8.

Second, in line with the committee’s prior 1999 Opinion 6-99, contract-attorney companies cannot make the final selection of contract attorneys to staff on a project, nor can the companies provide legal supervision over the contract attorneys. Both of those tasks must be handled by a member of the D.C. Bar with an attorney-client relationship with the client. The company’s role should be limited to the administrative aspects of the review (i.e., finding and interviewing reviewers, handling payroll and taxes, making sure the reviewers show up to work, etc.). A company is allowed to provide and supervise a person doing non-legal work if that person is not identified to the client as a lawyer. Opinion, at 8.

Third, a discovery-service company cannot use broad-based statements in its marketing materials (i.e., that the company is an “end-to-end” vendor or can provide “soup-to-nuts” solutions) without including a UPL disclaimer. This disclaimer must appear on the same page, in the same font, and in proximity to the potentially misleading statement. Statements regarding the legal expertise of the company’s staff also must contain similar disclaimers. Opinion, at 8–9.

Although the committee previously examined Rule 49 and its applicability to legal-services providers in 1999 and 2005, the committee saw fit to re-examine its prior decisions because companies providing discovery services “have dramatically expanded the scope” of their offerings. Opinion, at 4. The committee noted that these companies “offer a host of related services, from e-discovery consulting to database management to the eventual production of documents in litigation,” and that the companies also may “offer the physical space where the document review will take place, computers for conducting the review, and servers for hosting the document review.” Id.

The committee was concerned with the companies’ use of broad language in their marketing materials, including “one-stop shopping” and “comprehensive review and project management,” and about the marketing of companies’ management staff as having legal expertise that would be used in the discovery process. Opinion, at 4–5. Although the committee noted that some services provided by the companies may not “cross the line into legal practice,” such as administrative tasks, allowing discovery companies to make broad-based statements could mislead the public by implying that the companies are providing a legal judgment. Opinion, at 6.

Opinion 21-12 provides clarity to discovery-services vendors by outlining more clearly their role in the discovery process, which is limited to administrative, technical, and logistical functions. The opinion also will assist attorneys overseeing such projects by reminding them of their supervisory role over document reviews.

So, what do you think?  Is this a good idea?  Should it be adopted in other jurisdictions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Source: American Bar Association

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.