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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanks, Tom, for participating in the interview!

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

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

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

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

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

Today’s thought leader is Alon Israely.  Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA.  Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and their clients on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security.  Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thanks, Alon, for participating in the interview!

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

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

ESI Cost Budget Calculator – eDiscovery Best Practices

Last month, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  So far, we have reviewed three budget calculators, the E-Discovery Cost Estimator for Processing and Review, the Doc Review Cost Calculator and the EDRM UTBMS eDiscovery Code Set Calculator. Here is the fourth and final calculator (currently) on the site, the ESI Cost Budget Calculator, provided by Browning Marean, DLA Piper law firm.

As described on the site, this budget calculator estimates costs by project phase. The phases are:

  • ESI Collection
  • ESI Processing
  • Paper Collection and Processing
  • Document Review
  • Early Data Assessment
  • Phase 1 Review
  • Phase 2 Review
  • Production
  • Privilege Review
  • Review of Opposition’s Production
  • Hosting Costs

This single-sheet Excel cost calculator is nice and straightforward.  It covers collection through production, even including a section for review of your opponent’s production and hosting costs (which are becoming more commonplace as more organizations choose cloud-based solutions for their eDiscovery needs).  Two things that I particularly like is that it provides a sequential “line” column to make it easier to refer to a particular line item and also a comments/assumptions column for documenting (what else?) your comments and assumptions.  I also like that all of the numbers are in one column (column C), making it easier to follow the cost computations.  The sheet also includes a header at the top with a place to enter the matter name and date of the estimate.

Suggestions for improvement:

  • As the site indicates, cost calculations, by phase and in total, are shown in the yellow cells.  However, there are several other calculated cells that are in white (the same color as the enterable cells).  It would be easier and clearer to identify the enterable cells if all of the calculated cells were in a different color to differentiate them from the enterable cells (maybe a third color to differentiate them from the cost calculations cells);
  • Protect the sheet and lock down the computed cells (at least in the main sheet) to avoid accidental overwriting of calculations (with the ability to unprotect the sheet if a formula requires tweaking);
  • Tie a pie chart to the numbers to represent the portion of each phase to the total eDiscovery cost for the project.

This workbook would certainly be useful for tracking eDiscovery costs from collection to production, using the metrics appropriate for each section (e.g., custodians and GB for collection, total files and review rate for the review phases, etc.).  It would also be great to update as the phases progress to continue to refine your project estimate.  You can download this calculator individually or a zip file containing all four calculators here.

So, what do you think?  How do you estimate eDiscovery costs?   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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 1

It’s time for our annual review of eDiscovery case law!  We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, production formats and search parameters, among other things.  So, as we did last year and also the year before, let’s take a look back at 2013!

Last year, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

ADMISSIBILITY AND DUTY TO PRESERVE AND PRODUCE

Admissibility of ESI, and the duty to preserve and produce it, is more at issue than ever.  As always, there are numerous disputes about data being produced and not being produced.  Here are ten cases related to admissibility and the duty to preserve and produce ESI:

Court Rules Defendant Doesn’t Have Controls of PCs of Former Members, Denies Plaintiff’s Motion to Compel.  To require a party to produce evidence in discovery, the party must have “possession, custody, or control” of the evidence. In Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Nemaha Brown Watershed Joint District No. 7, the defendant did not have control over the personal computers of its former members, employees, or staff; it did not have the legal right to obtain information from them “on demand.” Therefore, the court rejected the plaintiff’s motion to compel and refused to order the forensic examination of the personal computers of current or former members, employees, or staff.

Court Rejects Defendant’s “Ultra-Broad” Request, Denies Motion to Compel Production.  In NOLA Spice Designs, LLC v. Haydel Enters., Inc., Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. denied a motion to compel a plaintiff and its principal (a third-party defendant) to produce their passwords and usernames for all websites with potentially relevant information and to compel a forensic examination of its computers.

Plaintiff Needs More Than “Mere Hope” to Discover Defendant’s Personal Info.  In Salvato v. Miley, a wrongful death action, Florida Magistrate Judge Philip R. Lammens denied the plaintiff’s motion to compel the defendant’s responses to discovery requests “based on Plaintiff’s very limited showing as to the relevance of the requested discovery and the broadly drafted discovery requests”.

Court Compels Discovery of Plaintiff’s Facebook Posts as Relevant.  In Moore v. Miller, Colorado Senior District Judge John L. Kane ruled (over the plaintiff’s privacy objections) that the plaintiff’s Facebook posts and activity log must be produced because they related to his claims of physical injury and emotional distress and because the plaintiff put his posts directly at issue by discussing the incident giving rise to the lawsuit online.

Court Rules that Stored Communications Act Applies to Former Employee Emails.  In Lazette v. Kulmatycki, the Stored Communications Act (SCA) applied when a supervisor reviewed his former employee’s Gmails through her company-issued smartphone; it covered emails the former employee had not yet opened, but not emails she had read but not yet deleted.

Google Compelled to Produce Search Terms in Apple v. Samsung.  In Apple v. Samsung, California Magistrate Judge Paul S. Grewal granted Apple’s motion to compel third party Google to produce the search terms and custodians used to respond to discovery requests and ordered the parties to “meet and confer in person to discuss the lists and to attempt to resolve any remaining disputes regarding Google’s production.”

Plaintiff Granted Access to Defendant’s Database.  In Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., Indiana Magistrate Judge Roger B. Cosbey took the unusual step of allowing the plaintiff direct access to a defendant company’s database under Federal Rule of Civil Procedure 34 because the plaintiff made a specific showing that the information in the database was highly relevant to the plaintiff’s claims, the benefit of producing it substantially outweighed the burden of producing it, and there was no prejudice to the defendant.

Yet Another Request for Facebook Data Denied.  In Potts v. Dollar Tree Stores, Inc., Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

Stored Communications Act Limits Production of Google Emails.  In Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., California Magistrate Judge Paul S. Grewal granted much of the defendant’s motion to quash subpoena of Google for electronic communications sent or received by certain Gmail accounts allegedly used by employees of the defendant because most of the request violated the terms of the Stored Communications Act.

Another Social Media Request Denied as a “Carte Blanche” Request.  In Keller v. National Farmers Union Property & Casualty Co., the defendants filed a motion to compel the plaintiff’s to respond to various discovery requests. While Magistrate Judge Jeremiah Lynch granted their request to compel the plaintiffs to produce medical records, he denied the defendant’s request “to delve carte blanche into the nonpublic sections of Plaintiffs’ social networking accounts”.

EDISCOVERY COST REIMBURSEMENT

As usual, eDiscovery cost reimbursement was a “mixed bag” as the cases where the prevailing party was awarded reimbursement of eDiscovery costs and the cases where requests for reimbursement of eDiscovery costs was denied (or only partially granted) was about even.  Here are six cases, including one where the losing plaintiff was ordered to pay $2.8 million for predictive coding of one million documents(!):

Cost-Shifting Inappropriate when Data is Kept in an Accessible Format.  In Novick v. AXA Network, New York Magistrate Judge Kevin Nathaniel Fox ruled that cost-shifting was inappropriate where data was kept in an accessible format.

Apple Wins Case, But Loses its Bid to Have Most of its Costs Covered.  In Ancora Technologies, Inc. v. Apple, Inc., California District Judge Yvonne Gonzalez Rogers granted in part and denied in part Ancora’s Motion for Review of Clerks’ Order on the Bill of Costs of prevailing party Apple, reducing the awarded amount from $111,158.23 down to $20,875.48, including disallowing over $71,000 in storage and hosting costs.

Another Case where Reimbursement of eDiscovery Costs are Denied.  In The Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc., when deciding which costs are taxable, the Fourth Circuit chose to follow the Third Circuit’s reasoning in Race Tires America, Inc. v. Hoosier Racing Tire Corp., which read 28 U.S.C. § 1920(4) narrowly. Specifically, the court approved taxation of file conversion and transferring files onto CDs as “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case” but no other tasks related to electronically stored information (ESI).

In False Claims Act Case, Reimbursement of eDiscovery Costs Awarded to Plaintiff.  In United States ex rel. Becker v. Tools & Metals, Inc., a qui tam False Claims Act litigation, the plaintiffs sought, and the court awarded, costs for, among other things, uploading ESI, creating a Relativity index, and processing data over the objection that expenses should be limited to “reasonable out-of-pocket expenses which are part of the costs normally charged to a fee-paying client.” The court also approved electronic hosting costs, rejecting a defendant’s claim that “reasonableness is determined based on the number of documents used in the litigation.” However, the court refused to award costs for project management and for extracting data from hard drives where the plaintiff could have used better means to conduct a “targeted extraction of information.”

Court Says Scanning Documents to TIFF and Loading into Database is Taxable.  In Amana Society, Inc. v. Excel Engineering, Inc., Iowa District Judge Linda R. Reade found that “scanning [to TIFF format] for Summation purposes qualifies as ‘making copies of materials’ and that these costs are recoverable”.

Must Losing Plaintiff Pay Defendant $2.8 Million for Predictive Coding of One Million Documents? Court Says Yes.  In Gabriel Technologies Corp. v. Qualcomm Inc., District Judge Anthony J. Battaglia awarded the defendant over $12.4 million in attorneys’ fees to be paid by the losing plaintiff in the case. The amount included over $2.8 million for “computer-assisted, algorithm-driven document review” and nearly $392,000 for contract attorneys to review documents identified by the algorithm as responsive.

We’re just getting started!  Tomorrow, we will cover cases related to production format disputes, search disputes and technology assisted review.  Stay tuned!

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.

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

EDRM UTBMS eDiscovery Code Set Calculator – eDiscovery Best Practices

Last month, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  So far, we have reviewed two of the budget calculators, beginning with the E-Discovery Cost Estimator for Processing and Review workbook provided by Julie Brown at Vorys law firm and the Doc Review Cost Calculator provided by an eDiscovery vendor.  Today, we will continue our review of the calculators with a look at the EDRM UTBMS eDiscovery Code Set Calculator provided by Browning Marean, DLA Piper law firm; and George Socha, Socha Consulting (and, of course, co-founder of EDRM).

As described on the site, this budget calculator uses the ABA’s Uniform Task Based Management System (UTBMS) eDiscovery codes as a starting point for calculating estimated eDiscovery expenses. Users enter anticipated average hour rates for:

  • Partners
  • Associates
  • Paralegals
  • Contract reviewers
  • In-house resources
  • Vendors

For each relevant L600-series UTMBS code, users enter (a) total estimated hours for each relevant group and (b) total estimated associated disbursements.  The spreadsheet then displays:

  • A summary of the estimated costs
  • Details of the estimated costs for each combination, such as estimated costs of time partners spend planning discovery (Partner and L601)
  • Totals by type of person, such as Partner
  • Totals by individual UTMBS code, such as L601
  • Totals by higher level UTBMS codes, such as L600

This spreadsheet is quite clear and easy to use.  It provides a summary section at the top of the sheet for the top level codes from L600 (Identification) to L690 (Project Management), which are fed by the enterable cells to the left and below.  All of the enterable cells are in yellow to make it easy to identify where the data needs to be entered (the hourly rates for each of the positions are top left and the total estimated hours are enterable for each position and subcode).

Based on the entered rates and hours within each subcode, costs are calculated and displayed in green for each position within each subcode, as well as a total for each subcode which rolls up to a total for the top level code displayed in blue at the top of the sheet.  There is also a column to enter associated disbursements for each code and subcode to reflect those disbursements that don’t tie to an hourly rate.  The sheet is protected to avoid inadvertent overwriting of formulas, but there is no password so that the user can tweak formulas if necessary.

This workbook would certainly be useful for tracking eDiscovery costs according to the UTBMS codes, especially for hourly billed activities.  It’s not a spreadsheet for estimating costs based on estimated data volumes but rather estimated hours spent by key staff on each phase of discovery.  You can download this calculator individually or a zip file containing all four calculators here.

So, what do you think?  How do you estimate eDiscovery costs?   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.

Cost Calculator for Document Review – eDiscovery Best Practices

A couple of weeks ago, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site and, two days later, began a review of the budget calculators, beginning with the E-Discovery Cost Estimator for Processing and Review workbook provided by Julie Brown at Vorys law firm.  Today, we will continue our review of the calculators with a look at the Doc Review Cost Calculator.

As described on the site, this budget calculator focuses on review, which is universally considered to be the most expensive phase of the eDiscovery process (by far). From assumptions entered by users, it calculates per-document and per-hour (a) low and high price estimates, (b) low and high costs on a per page basis, and (c) low and high costs on a per document basis.

To use it, enter assumptions in the white and yellow cells in columns B, C, and D. Calculations are shown in columns D through T.

Assumptions that you can provide include: pages per document, low and high page counts in the collection, low and high time to complete the review project (in weeks) and reviewer hours per week, proposed rates for review (hourly and per document), low and high pages per hour rates for review (from which documents per hour rates are computed), proposed rates for review management (hourly and per document) and percentage of the collection to QC.

From the entered assumptions, the model will provide calculations to illustrate the low and high cost estimates for the low and high page count estimates, for both a per-document and a per-hour review billing structure.  It will also estimate a range of the number of reviewers needed to complete the project within the time frames specified, to help you plan on staffing necessary to meet proposed deadlines.  The detailed calculations are stored in a hidden sheet called “Calculations” – you can unhide it if you want to see how the review calculation “sausage” is made.

This model uses an “old school” assessment of a document collection based on page counts, so to use it with native file collections (where page counts aren’t known), you have to set the pages per document to 1 – your review rate then becomes documents (files) per hour.

Suggestions for improvement:

  • Some of the enterable assumption cells are in yellow and some in white (the same color as the computed cells), it would be easier and clearer to identify the assumptions fields if they were all yellow to differentiate them from the computed cells;
  • Protect the sheet and lock down the computed cells (at least in the main sheet) to avoid accidental overwriting of calculations (with the ability to unprotect the sheet if a formula requires tweaking);
  • Tie a line or bar graph to the numbers to represent the differences graphically;
  • Provide some notes to explain some of the cells (especially the assumption cells) in more detail.

Nonetheless, this workbook would certainly be useful for estimating review costs and number of reviewers needed to complete a large scale review, not only at the start, but also to provide updated estimates as review commences, so you can adjust cost estimates and staffing needs as you go.  You can download this calculator individually or a zip file containing all four calculators here.  In a few days, we will continue our review of the current EDRM budget calculators in more detail with the ESI Cost Budget calculator from Browning Marean of DLA Piper law firm.

So, what do you think?  How do you estimate eDiscovery costs?   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.

Vorys Project Ballpark Cost Estimator for ESI Processing and Review – eDiscovery Best Practices

On Tuesday, we discussed budget calculators available from the Metrics section of the Electronic Discovery Reference Model (EDRM) web site.  Today, we will begin a more in-depth discussion of the budget calculators, beginning with the E-Discovery Cost Estimator for Processing and Review workbook provided by Julie Brown at Vorys law firm.

As described on the site, this budget calculator contains two worksheets. The Linear-search-analytics worksheet allows users to calculate ballpark cost estimates for processing and review under three “cases” and compare the results. The cases are:

  • Case 1: Full blown processing and linear review
  • Case 2: Search terms used to cull data during processing
  • Case 3: Use analytical culling tool

With each case, users are able to see the cost consequences that result from changing variables such as Data Volume, Volume after culling, and Pre-processing cost/GB.  The cost differences are shown numerically, as well as via two graphs, a 3D horizontal bar graph that shows the cost differences between the three cases (see above graphic for an example) and a 2D horizontal bar graph that shows the cost differences, with a breakdown of processing and review costs for each.

The Linear-size examples worksheet allows users to compare four versions of Case 1. Users are able to see the cost consequences (in both numeric and 2D vertical bar graph form) that result from changing any combination of six variables: Data Volume, Processing Cost/GB, Pages per GB, Docs Reviewed by Hour, Hourly Rate, and FTEs.

Both spreadsheets provide useful information and are well controlled to differentiate the data entry cells (with no fill color in the cell) from the calculation only cells (with a fill color) and the sheets are protected to prohibit accidental overwriting of the calculated cells (the sheets aren’t locked with a password, so you can override it if you want to make adjustments).  The sheet is designed to help you generate a ballpark cost for processing and review based on the variables provided, so it doesn’t include any fixed overhead costs such as software, hardware or facility costs.  It also doesn’t include any management overhead, so it’s essentially a model for variable costs only, but it could be useful to help you determine at what volume an analytical culling tool might pay for itself.

Suggestions for improvement:

  • Create a common section for data entry variables so you don’t have to re-enter them for each comparison case to save time and avoid data inconsistencies;
  • While you’re at it, add variables for pages per document and hours per week – right now, you have to unprotect the sheet and change the formulas if you want to change those variables (not all document sets or work weeks are the same);
  • Add sheets to compare versions of Case 2 and Case 3, like the sheet for Case 1.

Nonetheless, this workbook is quite useful if you want to obtain a ballpark estimate and comparison for processing and review and compare costs for alternatives.  You can download this calculator individually or a zip file containing all four calculators here.  After the first of the year, we will continue our review of the current EDRM budget calculators in more detail.

So, what do you think?  How do you estimate eDiscovery costs?   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.

Want to Estimate your eDiscovery Budget? Use One of These Calculators – eDiscovery Best Practices

It has been a busy year for the Electronic Discovery Reference Model (EDRM).  In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  Now, another resource is available via the EDRM site – Budget Calculators!

It can be difficult to estimate the total costs for eDiscovery at the outset of a case.  There are a number of variables and options that could impact the budget by a wide margin and it may be difficult to compare costs for various options for processing and review.  However, thanks to the EDRM Metrics team and contributing members, budget calculator Excel workbooks are available to enable you to at least “ballpark” the costs.  The budget calculator spreadsheets are designed to help organizations estimate likely eDiscovery costs, based on assumptions that you provide, such as average hourly rates for contract reviewers or average number of pages per document.

There are four budget calculators that are currently available.  They are:

  • UF LAW E-Discovery Project Ballpark Cost Estimator for ESI Processing and Review: This budget calculator contains two worksheets. The first worksheet allows users to calculate ballpark cost estimates for processing and review under three “cases” (Full blown processing and linear review, Search terms used to cull data during processing and Use analytical culling tool) and compare the results.  The second worksheet allows users to compare four versions of Case 1.  This workbook has been provided by University of Florida Levin College of Law and Vorys law firm.
  • Doc Review Cost Calculator: This budget calculator focuses on review. From assumptions entered by users, it calculates per-document and per-hour (a) low and high price estimates, (b) low and high costs on a per page basis, and (c) low and high costs on a per document basis.
  • ESI Cost Budget: This budget calculator estimates costs by project phase. The phases are: ESI Collection, ESI Processing, Paper Collection and Processing, Document Review, Early Data Assessment, Phase 1 Review, Phase 2 Review, Production, Privilege Review, Review of Opposition’s Production and Hosting Costs.  This workbook has been provided by Browning Marean, DLA Piper law firm.
  • EDRM UTBMS eDiscovery Code Set Calculator: This budget calculator uses the UTBMS e-discovery codes as a starting point for calculating estimated e-discovery expenses. Users enter anticipated average hour rates for: Partners, Associates, Paralegals, Contract reviewers, In-house resources and Vendors, along with total estimated hours for each relevant group and total estimated associated disbursements for each relevant L600-series UTMBS code.  The spreadsheet then displays: a summary of the estimated costs, details of the estimated costs for each combination, totals by type of person and totals by individual and higher-level UTMBS codes.  This workbook has been provided by Browning Marean, DLA Piper law firm; and George Socha, Socha Consulting.

You can download each calculator individually or a zip file containing all four calculators.  If you have your own budget calculator, you can also submit yours to EDRM to share with others.  The calculators are available here.  On Thursday, we will begin reviewing the current budget calculators in more detail.

So, what do you think?  How do you estimate eDiscovery costs?   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.

Is a Blended Document Review Rate of $466 Per Hour Excessive? – eDiscovery Replay

Even those of us at eDiscovery Daily have to take an occasional vacation (see above); however, instead of “going dark” for the week, we thought we would use the week to do something interesting.  Up to this week, we have had 815 posts over 3+ years of the blog.  Some have been quite popular, so we thought we would “replay” the top four all-time posts this week in terms of page views since the blog began (in case you missed them).  Casey Kasem would be proud!  Published less than two months ago in September, this post quickly vaulted to the top as the most viewed post of all time with over 1,400 lifetime views!  I guess the nerve of the plaintiff’s lead counsel struck a nerve with our readers!  Enjoy!

______________________________

Remember when we raised the question as to whether it is time to ditch the per hour model for document review?  One of the cases we highlighted for perceived overbilling was ruled upon last month.

In the case In re Citigroup Inc. Securities Litigation, No. 09 MD 2070 (SHS), 07 Civ. 9901 (SHS) (S.D.N.Y. Aug. 1, 2013), New York District Judge Sidney H. Stein rejected as unreasonable the plaintiffs’ lead counsel’s proffered blended rate of more than $400 for contract attorneys—more than the blended rate charged for associate attorneys—most of whom were tasked with routine document review work.

In this securities fraud matter, a class of plaintiffs claimed Citigroup understated the risks of assets backed by subprime mortgages. After the parties settled the matter for $590 million, Judge Stein had to evaluate whether the settlement was “fair, reasonable, and adequate and what a reasonable fee for plaintiffs’ attorneys should be.” The court issued a preliminary approval of the settlement and certified the class. In his opinion, Judge Stein considered the plaintiffs’ motion for final approval of the settlement and allocation and the plaintiffs’ lead counsel’s motion for attorneys’ fees and costs of $97.5 million. After approving the settlement and allocation, Judge Stein decided that the plaintiffs’ counsel was entitled to a fee award and reimbursement of expenses but in an amount less than the lead counsel proposed.

One shareholder objected to the lead counsel’s billing practices, claiming the contract attorneys’ rates were exorbitant.

Judge Stein carefully scrutinized the contract attorneys’ proposed hourly rates “not only because those rates are overstated, but also because the total proposed lodestar for contract attorneys dwarfs that of the firm associates, counsel, and partners: $28.6 million for contract attorneys compared to a combined $17 million for all other attorneys.” The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466. The plaintiff explained that these “contract attorneys performed the work of, and have the qualifications of, law firm associates and so should be billed at rates commensurate with the rates of associates of similar experience levels.” In response, the complaining shareholder suggested that a more appropriate rate for contract attorneys would be significantly lower: “no reasonable paying client would accept a rate above $100 per hour.” (emphasis added)

Judge Stein rejected the plaintiffs’ argument that the contract attorneys should be billed at rates comparable to firm attorneys, citing authority that “clients generally pay less for the work of contract attorneys than for that of firm associates”:

“There is little excuse in this day and age for delegating document review (particularly primary review or first pass review) to anyone other than extremely low-cost, low-overhead temporary employees (read, contract attorneys)—and there is absolutely no excuse for paying those temporary, low-overhead employees $40 or $50 an hour and then marking up their pay ten times for billing purposes.”

Furthermore, “[o]nly a very few of the scores of contract attorneys here participated in depositions or supervised others’ work, while the vast majority spent their time reviewing documents.” Accordingly, the court decided the appropriate rate would be $200, taking into account the attorneys’ qualifications, work performed, and market rates.

For this and other reasons, the court found the lead counsel’s proposed lodestar “significantly overstated” and made a number of reductions. The reductions included the following amounts:

  • $7.5 million for document review by contract attorneys that happened after the parties agreed to settle; 20 of the contract attorneys were hired on or about the day of the settlement.
  • $12 million for reducing the blended hourly rate of contract attorneys from $466 to $200 for 45,300 hours, particularly where the bills reflected that these attorneys performed document review—not higher-level work—all day.
  • 10% off the “remaining balance to account for waste and inefficiency which, the Court concludes, a reasonable hypothetical client would not accept.”

As a result, the court awarded a reduced amount of $70.8 million in attorneys’ fees, or 12% of the $590 million common fund.

So, what do you think?  Was the requested amount excessive?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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.

Are You Scared Yet? – eDiscovery Horrors!

Today is Halloween.  Every year at this time, because (after all) we’re an eDiscovery blog, we try to “scare” you with tales of eDiscovery horrors.  So, I have one question: Are you scared yet?

Did you know that there has been over 3.4 sextillion bytes created in the Digital Universe since the beginning of the year, and data in the world will grow nearly three times as much from 2012 to 2017?  How do you handle your own growing universe of data?

What about this?

The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466.

How about this?

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

Or maybe this?

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform review and produce the files to opposing counsel. After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!!

Scary, huh?  If the possibility of exponential data growth, vendors holding data hostage and billable review rates of $466 per hour keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

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

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

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

Happy Halloween!

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