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Ralph Losey of Jackson Lewis, LLP – eDiscovery Trends

This is the tenth 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 Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Shareholder and the firm’s National e-Discovery Counsel. Ralph is also a prolific author of eDiscovery books and articles, the principal author and publisher of the popular e-Discovery Team® Blog, founder and owner of an online training program, e-Discovery Team Training, with attorney and technical students all over the world, founder of the new Electronic Discovery Best Practices (EDBP) lawyer-centric work flow model. Ralph is also the publisher of LegalSearchScience.com and PreSuit.com on predictive coding methods and applications.

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

The presentation that I did at the show was called the “John Henry moment”, and I presented with Cliff Dutton, who is a technology expert at AIG (not an attorney, but an expert with technical processes in electronic discovery). The other panelist was Jason Baron (whose own thought leader interview from last week can be found here).  Cliff, Jason and I were examining at LegalTech what comes next after predictive coding.  What is the inevitable direction that technology is taking?  That was really the theme behind the “John Henry moment”.  A similar question was asked by other panels, but, and of course I’m prejudiced, I think our panel had some particularly good, unique insights.

Before I get into the answer that emerged from our panel, I will say that other panels were focusing on other parts of the technology world.  They were talking about things like data breach and privacy – those are two big issues that we’ve seen in the past, but they seem to be emerging even stronger than before and were big issues in the keynote speech.  It appears to be a surprise to some people that there is crime on the Internet.  Many of us are quite aware of that – I had to change my credit card just a couple of months ago.  So, data breaches, either on purpose by a hacker or unintentional through negligence, and data privacy are certainly big issues.

These were not the issues that Jason, Cliff and I talked about.  Instead, we were talking about the advancement into the second machine age.  This is something that has been discussed by the New York Times and also in a best-selling book called The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies.  It has to do with the application of ever more sophisticated computer algorithms that allow us to replicate what the human mind is capable of doing and to automate not just manual labor, but automate the mental labor of mankind.  Of course, what we’re focused on is its application to lawyers – what we lawyers do that can now be improved, enhanced and automated.

Now, in the past, the big discussion has been on predictive coding and this is certainly an example of the application of advanced computers and what is being called “analytics” –  taking big data and understanding the implications of big data.  Examples outside the law include Netflix, that takes your viewing history and tells you about a new movie they have that you’re going to like, and Amazon who takes you buying history and suggests books that you’re going to like.  They’ve both analyzed your data.  So, what we were discussing is how this concept will impact the law.  That’s really an important topic that our panel addressed that I had an opportunity to follow up on recently in my blog (that parodied the movie Minority Report, which had something called “pre-crime”), called “pre-suit”.  Not “pre-crime”, but “pre-suit”.  I’ve already (surprisingly) been able to get the URL for presuit.com and it discusses corporate counsel using what I call “smart data” to predict and prevent litigation before it happens.  That’s what our panel discussed and I think that’s really the next big thing (with all due respect to people that are focused by privacy and data breach issues).  So, I think the next big thing is to apply data analytics and the latest advancements in artificial intelligence to get a much better handle and control on litigation than we have today.

The idea behind “pre-suit” is essentially to win your next lawsuit before it’s even filed.  Jason Baron also recently wrote an article about it in Law Technology News (Escape From the Island of E-Discovery), which I didn’t know about when I wrote my article – he showed it to me the day of our panel session.  He talks about three examples of using data analytics for something other than predictive coding: the first two are data remediation for information governance purposes and records classification to, for example, classify and file your emails for you.  The third one he calls “bad conduct detection” – I call it the use of smart data to predict and prevent a cause of action from occurring – basically, when employees within your company are doing something that could be a basis for a lawsuit.

He wrote about it in the article and, independently, I had the same idea I (at least I think I did – Jason is alleged to have mind control abilities!).  In my blog, I wrote about how this “pre-suit” concept will work and this isn’t based on science fiction, it’s based on technology that’s available today.  We have the technology to detect patterns of wrongful activity that are there.  In corporate email and text messages, we can detect when an employee may be harassing another employee.  It’s far more than just looking for certain words that should never be said in email, but also patterns so you can bring in an employee for counseling before damage is done, before a reputation is ruined or a lot of emotional harm happens and way before a complaint is filed by the victim.

So, this is really the next big thing – to stop lawsuits before they mature.  In other words, why should we depend on plaintiff’s counsel to come to the door of corporate counsel to let them know that they’ve found this group of employees in the company that have been discriminated against or are receiving wrongful treatment?  Find about it in advance and fix it yourself – much more effectively and much cheaper.  It’s essentially good citizenship for corporations to police their own activities rather than having outside attorneys find it and air their “dirty laundry” in a courtroom.  That’s the vision that our panel came articulated and that I think is the next big thing.

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 wrote a blog post about it and I did predict that they would pass this year, but the level of controversy seems to be heating up at the last minute.  The commentary that Judge Scheindlin filed with the Rules Committee is just one indication that it’s escalating.  It’s very intense and it may be a closer question than I thought.  As I’ve written about it, my view is that some of these changes may not even be constitutional and that’s something that former Judge Ron Hedges believes – that some of the rules have gone too far in violating separation of powers, that the rules are going into substantive law.  I’m concerned how political the Federal Rules have become.  The judicial branch is supposed to be a separate branch of government, not part of the legislative branch.  So, I must say that I share Judge Hedges’ concerns on that and, even though I still think it will be approved, I am not pleased by how politicized the whole process has become..

Having said all of that, the reason that I’m not having the same emotional reaction that Judge Scheindlin and other commentators have had – on both the right and the left (frankly, this has become a liberal vs. conservative issue) – is that I don’t think it will have the profound impact that some people fear.  Ultimately, rules changes don’t change things as much as people expect them to do so.  Certainly, the 2006 rules changes didn’t lead to a huge impact, and regardless of what gets passed here, I don’t think it will have a huge impact either.  There is really a cultural change that is needed for eDiscovery to work right, rather than creating yet more rules that people can misunderstand and argue about.  In my opinion, we’re going to get more of a change by focusing on education, doing the kind of thing that you do, bringing the word to people so that they can understand what’s going on.  I think that does more good than creating more rules, especially when they’re particularly complicated rules.

One good result of the new rules is the emphasis on proportionality and cooperation.  I think those are good things, it doesn’t hurt to have them in the rules and that will encourage people to do what the rules already require – cooperate with each other and always have proportionality in mind.

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?

You pointed out the resources that are already there.  Do we need more and better resources?  I suppose.  And, I’ll still continue to work on that as, I’m sure, the other educational leaders that you’ve mentioned will do as well.  I think one of the most important new efforts to come on the scene is the one started by another Losey, Adam Losey, and his foundation IT-Lex.  That’s an educational foundation effort that is more oriented toward younger lawyers.  That is ultimately the answer.  Old fogies like me are going to retire and they just don’t want to learn.  They’re closed minded and, frankly, they’re getting more and more irrelevant every day.  We need to focus on the next generation and I’m really proud of Adam in how he’s doing a good job of carrying the torch on that.

I’m seeing this in my own family – first with my son Adam at Foley and now with his wife, my daughter-in-law, Catherine Losey who is now at Littler doing eDiscovery.  I can tell you that the next generation gets it and the hope is in the future.  I think you have to take a longer term view of things.  I tried cajoling lawyers my age into doing it and it doesn’t work, honestly.  In the book that I mentioned before, The Second Machine Age, delays like this in learning how to use technology have always been.  This is nothing new and it’s not unique to the legal industry.  It typically takes ten to twenty years for business or any general cultural activity to adapt to the new technology and figure out how to use it.

For people like me, it has been an exercise in patience because I’m ready to do everything yesterday.  But, the reality is that it will catch up, it’s starting to catch up and those of us who do know the technology needn’t despair that 98% of the bar still doesn’t know what we do.  That’s OK.  The number of people who do know will grow rapidly, particularly as people retire.  There are plenty of smart people my age who don’t get it, but they understand that they don’t get it, so they ask me to do it or they ask someone else who does get it to do it.  That is a fundamental ethical responsibility that good lawyers get.  Eventually, you’re going to have a field of specialists that focus on eDiscovery, especially complex artificial intelligence and other technology.  That’s how we will get at the truth.  There will be a specialty bar that other lawyers use who don’t do that.  But, right now, we’re still in a shakedown period.  We may see things speed up because of more eDiscovery malpractice cases – there have already been a few and there will be more.  And, competition will force the people that don’t get it out and allow opportunities for the next generation and the few in my generation that do get it.  Overall, I’m optimistic, because I don’t think there’s anything unique about lawyers to keep them from getting it; there are plenty of younger lawyers that do get it.  They are our future and I’m optimistic for that future.

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

Well, my online training program (e-Discovery Team Training) is still alive and well.  An encouraging sign is that we’re starting to have smaller firms signing up four, five or even six attorneys and paralegals.  So, I will keep eDiscovery Team Training in place as a cheaper, intro level, A to Z, course about eDiscovery for people that can’t afford to take the more expensive courses.  It’s an inexpensive alternative for people who do want to learn, that want to remain relevant and that understand that, in today’s world, it’s all about constant training, re-training and learning.

As for the more advanced training that I provide, I find that you can’t teach predictive coding just by writing and I’ve written maybe 35 essays on the subject.  I find it’s much more effective for me to teach it the good-old fashioned way – the way that Abe Lincoln learned law – with a one-on-one apprenticeship.  In other words, I show my attorneys by doing.  With something as complicated as predictive coding, coming in and consulting and actually helping lawyers do it is more effective than writing about it.  But, with the simple intros to eDiscovery, the writing is still effective, so I’ll keep on doing that too. I’ll keep writing on the advanced topics too, but with the understanding that many of the methods of predictive coding are too complex to teach my words alone.

Thanks, Ralph, 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.

Jason R. Baron of Drinker Biddle & Reath LLP – eDiscovery Trends

This is the eighth 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 Jason R. Baron.  An internationally recognized speaker and author on the preservation of electronic documents, Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice.  Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration (NARA) and as trial lawyer and senior counsel at the Department of Justice.  He was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery.

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

I think that it was clear, not only to me but to many other attendees that I spoke with at the show, that there was a greater focus and attention this year on Information Governance.  It’s the new black.  You saw that especially in the educational sessions.  Now my good friend Ralph Losey, in a recent posting on his brillilant blog e-Discovery Team®, referred in passing to the topic of Information Governance as “boring” – however, what I think he meant to say is that if Information Governance is simply viewed as the current buzzword for what constitutes electronic recordkeeping best practices, that would be unfortunate.  It’s a lot more profound than that.

In my view, the types of analytics that we use in eDiscovery for predictive coding have an important role in Information Governance as well.  The research that I had some role in, coming out of the TREC Legal Track, and subsequent articles by Maura Grossman, Patrick Oot and others, have all helped to crystallize what constitute best practices in the eDiscovery search and document review space.  But the knowledge that we have gained about analytics in these various research studies, as validated in recent court opinions like Da Silva Moore, are applicable to a much broader application than merely in eDiscovery practice.

That is to say, we can all be smarter about using analytical methods to solve lots of legal issues which arise outside of the narrow band of eDiscovery but inside the broader realm of Information Governance.  Ralph discussed this in a recent blog when he referred to the idea of using “presuit” analytics to predict and prevent lawsuits from happening in the first place.  Ralph’s column shows that he certainly gets it, and that I can count him in as a true believer in pre-litigation analytics being accomplished to lower corporate overall risk including the prevention of potential lawsuits.

So, the hottest topic at LegalTech was Information Governance and, as part of that discussion, a conversation about what best practices are from a technology perspective in the space.  What other trends  out there were noted?

Other themes at LegalTech that reflect trends specifically affecting legal and eDiscovery practice: First, it’s clear to us that the cloud is becoming a dominant paradigm for the storage of big data, and that we need to continue to understand how eDiscovery in particular can be optimized in cloud environments.  Second, there is increased attention to the notion of technological competence, in light of the amendments to the Model professional rules of responsibility, including the comment to Rule 1 about the need for attorneys to be technologically competent in keeping up with the law.  That comment certainly means something in the eDiscovery space.  Beyond those two, we saw a conversation about new technologies and new ideas that are happening and that need to be absorbed into the practice of law – for example, sessions on drones and sessions that noted the “Internet of things”.  In all sorts of ways, these various discussion threads show that there are a thousand different ways to collect data in the world, all of it is ESI and all of it needs to be factored in when we’re litigating cases and when we’re trying to govern the data that organizations hold.

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?

Well, my crystal ball tells me not to make predictions.  However, we’re now up to 700 comments in the last week leading up to the February 15, 2014 deadline for responding. [Editor’s note: over 2,000 comments were submitted by the actual deadline.]  Those comments are sharply divided between a community of plaintiffs’ counsel who question the necessity for rules change, and the defense bar, which at least a part of which strongly urges rules changes in the belief that the present rules encourage over-preservation of evidence, and that more in the way of limitations imposed on discovery should now be imposed.  So, that’s the battleground.  I think a good bet in the space is that the language that emerges is going to be much like the amendments currently proposed, but no one knows for sure.

My view about the amendments is a different one than what has been reflected in most of the comments, which I have put forward on behalf of the Information Governance Initiative (see below).  The view that I have is that there are aspects of the rules amendments that can be supported, and certainly Federal Rule of Civil Procedure 1 should be amended to incorporate the notion of parties cooperating.   However, what I believe to be of greater importance than rules change is a recognition on the part of the judiciary as well as all litigants that the volume and complexity of data is doubling every couple of years, and the technological environment is one that should include advanced tools to help remediate the severe challenges we all face in terms of the preservation of ESI. We live in a world of exponential growth of big data and we need to deal with that fact at a more foundational level than with rules changes for litigation.  So, I urge that we pay attention to both best practices as a matter of technology in the maintenance of big data in electronic systems, as well as continued education of the bench and bar on how to deal with this new reality — because we’re not going back to the 20th century.  The world of exabytes that we live in is only getting bigger and we have to deal with it.  In my mind, I’m attempting to carve out a middle ground where the rules debate is not as draconian or as starkly imagined as parties would reflect in the comments, but rather that we need to step back and ask more fundamental questions.

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?

Every survey that I know of drives this point home, that there is a “bubble” that some of us practice in where we go from conference to conference, acting as if the 2006 rules amendments are “old hat,” whereas the concept of how to deal with ESI is something new and novel to many others.  So, there is a learning curve that exists where the greater part of the legal community needs to become better versed in the more advanced aspects of eDiscovery.  By now, everyone knows about email potentially being relevant evidence, but not very many people could step through a workflow on predictive coding.  Nor do they necessarily have to do so in a large swath of cases that, candidly, are not a candidate for the most advanced methods.  We need to apply some degree of proportionality analysis to competence and the level of competence that someone needs is dependent on the complexity of the case.  If there is giant litigation that involves billions of documents, then you really need to understand the technical issues at hand, and what questions to ask, to ensure that you’re using the most advanced and efficient search and document review methods.  On the other hand, if you have a case that is only a couple of hundred documents that is in state court or some local jurisdiction, then these more advanced methods are obviously not needed.

So, I think there is an aspect that you’re exactly right to point out, that this is all still new, and we are still maturing in mapping out defensible ediscovery practices in the post-2006 Rules amendment world. But, increasingly, as I have said, we live in a world of digital information.  Whether it’s a family law case involving the exchange of emails or an employment case or even a hit and run case involving GPS data, attorneys are necessarily finding that there cases do indeed involve aspects of discovery where digital or electronic evidence is material and important.  To that extent, all lawyers need to know something about how to preserve, how to collect, how to review and how to produce ESI.  It is clear to me as the years go by that the bar is getting raised in a greater and greater number of cases and that more and more lawyers need to be competent with respect to basic eDiscovery.

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

Here’s one thing I’m very excited about.  Bennett Borden, who is chair of the Information Governance and eDiscovery practice here at Drinker Biddle, and Barclay Blair, who runs the company ViaLumina and is a thought leader in the Information Governance space, have teamed up to found the Information Governance Initiative and invited me to act as Co-Chair.  The Initiative is a vendor-neutral industry consortium and think tank which has as its mission a goal of fostering discussion about best practices in the Information Governance space.  We have received a large outpouring of goodwill in the form of individuals joining up as members (it’s free to join, by the way), as well as corporate sponsors who have products and services that address IG issues.  And we hope through various platforms that there will be a better smarter dialogue about how to deal with the challenges of big data and Information Governance using many of the analytical methods that I alluded to earlier.  This is exciting to be part of and I’m delighted, after joining Drinker Biddle, to be able to work with Bennett, Barclay, as well as Jay Brudz and others, to attempt to provide some measure of thought leadership in this space.

I should note that there are other great organizations who are also putting on programs, including The Sedona Conference, which has put out a wonderful Commentary on Information Governance spearheaded by Sedona WG1 chair Conor Crowley, that’s freely available for download.  Sedona and ARMA have also teamed up to put on an information governance conference coming up in April 2014 in Florida.  These are all great to advance the ball.    Hopefully, all of our collective efforts will help to jump start serious conversations around optimizing IG.  For my part, I certainly would encourage individuals to look up the IG Initiative and participate in future activities. (See www.iginitiative.com.)

Thanks, Jason, 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.

Laura Zubulake, Author of “Zubulake’s e-Discovery” – eDiscovery Trends

This is the fourth 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?

Today’s thought leader is Laura Zubulake.  Laura worked on Wall Street for 20 years in institutional equity departments and, in 1991, authored the book The Complete Guide to Convertible Securities Worldwide. She was the plaintiff in the Zubulake vs. UBS Warburg case, which resulted in several landmark opinions related to eDiscovery and counsel’s obligations for the preservation of electronically stored information. The December 2006 amendments to the Federal Rules of Civil Procedure were influenced, in part, by the Zubulake case. In 2012, Laura published a book titled Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here and she speaks professionally about eDiscovery topics and her experiences related to the case.

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

As far as what I saw last week, there was an increase in focus on Information Governance over last year’s conference. There was also a continued interest in eDiscovery.  What I found particularly interesting is that some of the larger vendors put less emphasis on Information Governance than they did last year and more on eDiscovery this year. When I went to the vendor booths and talked to them about actual business, I got the sense that several have taken a step back from Information Governance and refocused their efforts on eDiscovery. I’m not saying this is the case with all of them, but several of them.  I was not able to find out a reason why, but I surmised from my conversations that monetizing, or creating a business around Information Governance has been difficult for some vendors. It seems they find it easier to generate business with eDiscovery.  This intrigued me.

I’m looking at it more from a business standpoint than a legal or a conference agenda standpoint. In other words, how are they actually making money in this industry? It’s still predominantly in eDiscovery, not Information Governance. I think part of that has to do with the state of the economy, which is not great and it’s difficult trying to get clients to buy certain services at this time. Information Governance is probably a tougher sell than certain technologies you have on the eDiscovery side.  This creates a real business opportunity.  Over time I think the focus will shift towards Information Governance.  Corporations will realize that eDiscovery is a subsector of Information Governance and that Information Governance is a more efficient and effective investment.

Other things that I did see at the show: clearly there was an emphasis on big data, which was expected. When I looked at the tracks, the topics included Risk and Compliance, eDiscovery, Information Governance and technology in general. This seemed to be a continuation of those topics from last year’s show – again except for Information Governance, where I did see an increased focus.

I was surprised that I didn’t see more attention in areas like healthcare, which I would have expected — given what’s going on in the country and given the planned to shift from ICD-9 to ICD-10. Although now I guess there’s a little bit of a debate about that. But, I would have thought that there would have been more emphasis on healthcare.  

As for a prediction for next year and the coming years, I think that healthcare is going to become a major focus – for Information Governance in particular.   To continue on this, it would be interesting to see other detailed sector analysis.  That is, how Information Governance (particularly in light of industry regulations) could affect the finance, utilities, and energy sectors.

I also think you’re going to see – and people have different names for this – more emphasis on applying algorithms to Information Governance and not just for eDiscovery. People use the term “predictive coding” to refer to applying algorithms to eDiscovery efforts and with Information Governance, some people call it “auto-classification.”  Essentially, it’s taking a macro view and using algorithms to help companies organize and manage their data, from the top down. So, I think you’ll start seeing more discussion on not just predictive coding for EDD, but also algorithms for Information Governance efforts.

I would say the “Internet of things” (I guess everybody has their own way to describe that) is going to become more of a focus as well. For example, Google recently purchased Nest. If you think of the implications of that, Google is going to have access to data within your home. So, I think as the “Internet of things” expands, that’s going to become more of a focus for Information Governance, eDiscovery and Risk and Compliance type issues.

Cyber security will be another trend, obviously. Security and privacy issues with regard to healthcare and the security of data at every level, whether it’s your home or business, will become increasingly important.

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 contributed comments to the website. In fact, I sent my book to Senator Coons, who is in charge of the committee and I have been in contact with other individuals involved in the discussion.  I think it’s important for the decision makers to appreciate what it’s like for an individual to go through litigation. While no one wants to be in that situation, it can happen to anyone.  I’m not so sure the amendments will be approved this year — maybe by the end of this year or next year.  My personal concern is that most of what I’ve read about the debate has been dominated by the defense side.  I’m not sure that the plaintiff side has been thoroughly represented. That was the concern that I voiced when I added my comments to the website.  While I understand the business and cost implications of eDiscovery, I believe the plaintiff ‘s side needs to be properly represented in the talks. With regard to the nature of the proposals, restricting the number of depositions, having certain restrictions on time, etc., I think it’s going to make it more difficult for an individual to stand up for their rights, to actually take a stand.  

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?

Generally, I agree. Based on what I’ve read, there appears to be a significant segment of the legal community that is not well informed. What do I think can be done to improve the situation? Obviously, continue to educate.   Unfortunately, I think that there are many people that won’t take the time to learn new things until they’ve been thrown into a situation and forced to learn. That’s sad, because eDiscovery has been around for so long now. It should really be part of the conversation. Law schools need to include it in their curriculum somehow so that all law students become familiar with it at some level. Also, perhaps requiring continuing education for lawyers solely dedicated to eDiscovery where they sit in classes instead of just attending a conference. When you have to take an exam and answer questions, that’s when you’re forced to learn something.

Thanks, Laura, for participating in the interview!

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

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

Brad Jenkins of CloudNine Discovery – eDiscovery Trends

This is the first 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 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 Brad Jenkins of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation support arena. Brad also writes the Litigation Support Industry Blog, which covers news about litigation support and eDiscovery companies’ funding activities, acquisitions & mergers and notable business successes. He has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!

What significant eDiscovery trends do you see for 2014?

Well, I think that technology assisted review tools will continue to gain traction and the software will continue to make the review process more intuitive.  I think predictive coding software is evolving to provide real-time predicted relevance scores for the collection as each document is reviewed.  One of our partners, Hot Neuron, announced last month that Version 4.0 of their Clustify software, is the first technology-assisted review tool to offer real-time predictive coding.  I also think that the technology associated with predictive coding will be used more in other areas of the eDiscovery life cycle, particularly Information Governance.

Another trend, one that I discussed last year, is integration of “best of breed” cloud-based applications to make the discovery process more seamless. Our alliance with BIA and the integration of their TotalDiscovery legal hold and collection tool to our review application, OnDemand®, has continued to be used by our clients to support preservation through production.  BIA has tremendous expertise and software to support the left side of the EDRM model and it’s a logical fit for the services and software we provide from collection to production.  Personally, I believe that the “best of breed” integrated applications approach is a preferable alternative to a complete solution because it’s difficult to be an expert in all phases of discovery.

I also think that it’s more difficult than ever for the small to medium sized firm to compete with the big firm that has most of the attention from the eDiscovery vendor market and has more resources in house to manage their discovery workload.  Most small to mid-sized firms lack the core competency, the infrastructure, the project management expertise and the overall personnel in house to provide the full range of services that large corporate clients are demanding, especially for litigation support and discovery services.  More than ever, these firms will need to leverage virtual resources to compete and provide the level of services their clients expect.

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 don’t really have a prediction as to whether they will be approved this year.  I know there has been controversy with some of the proposed rules changes, especially Rule 37(e), regarding the level of culpability required to justify severe sanctions for spoliation and that Judge Scheindlin and others have criticized the rule.  I wouldn’t be surprised to see some changes to that rule before adoption.  Regardless, it seems like a lot of attorneys don’t follow the rules adopted back in 2006, so the rules will only be effective if attorneys adhere to those rules and courts hold them to those standards.

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?

Yes, I agree.  We work with a lot of firms whose attorneys lack basic eDiscovery fundamentals.  In some cases, the managing partners know that and have been asking for us to provide seminars and webinars to educate them on eDiscovery best practices.  And, we have been providing more consulting than ever to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production such as native files with included metadata.

As for what can be done, I think it’s imperative for each provider to provide resources to educate their clients and the legal profession as a whole.  We do that with our blog, eDiscoveryDaily.  As we approach 300,000 lifetime hits and 1,000 lifetime posts, both of which we will reach later this year, I’m proud of the knowledge base that this blog has become.  This year, we are also looking to really ramp up CLE training for attorneys that want to become more comfortable with technology.  There are numerous other great blogs and resources out there too.  I think we have to keep pushing and keep finding ways to reach attorneys and give them useful resources that can simplify the discovery process, which is what we’re all about at CloudNine.

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

In addition to our continued integration success with BIA and our partnership with Clustify, we recently released a brand new version of our review application OnDemand® , called Universal OnDemand.  We called it “Universal” because we have re-designed it to work in any browser, so clients can use it whether they prefer Internet Explorer, Firefox, Google Chrome or even Safari on a Mac.  We will be working to expand the application to support use with tablets this year and, as always, working to add features requested by our clients, who are the primary drivers of our development priorities.

We have also been working on a new advanced program that we call the Virtual BIG Firm™ program.  It’s a unique package of the full range of services that we have provided for years, along with our OnDemand review platform, for mid-sized firms that want to compete with the big firms, but don’t have the personnel, infrastructure or expertise to make it happen.  We created our Virtual BIG Firm program based on our experience working with over one hundred law firms for more than eleven years.  Our Virtual BIG Firm program appeals to firms interested in growing their practice.  These firms value continuing legal education, technology advances and they feel comfortable delegating.  It’s not for everybody, so we continue to offer our basic services and software as we always have, but for the firm that has a significant litigation workload but not the resources to fully manage it effectively, it’s a program that provides those resources at a fraction of what big firms spend on personnel & technology.

Thanks, Brad, 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.

If You’re Going to Attend Just One Session at LegalTech Next Week, Make it This Session – eDiscovery Best Practices

In just a few days, there will be big happenings in the New York area!  No, I’m not talking about the big game, I’m talking about the biggest legal technology event of the year, LegalTech New York (LTNY).  If you’re going to be attending the conference this year (and, if not, why not?), here is a session that is a “must attend” for anyone who wants to know leading judges’ perspectives on eDiscovery rules changes and best practices.

On Day 2 of the conference, Wednesday, February 5 at 9:00am, eDiscovery industry expert Craig Ball will lead a discussion with five renowned judges who have had significant impact on how lawyers manage legal technology.  The Day Two Keynote General Session Presentation – Judges Panel: Changing Rules and Best Practices in e-Discovery will include Craig and the following judges:

  • Honorable Lee H. Rosenthal, United States District Judge, Southern District of Texas
  • Honorable Shira A. Scheindlin, United States District Judge, Southern District of New York
  • Honorable John M. Facciola, United States Magistrate Judge, District of Columbia
  • Honorable James C. Francis, United States Magistrate Judge, Southern District of New York
  • Honorable Andrew J. Peck, United States Magistrate Judge, Southern District of New York

Most of these judges were discussed in Lisa Holton’s article (E-Discovery: A Front-Row Seat) as “trailblazing” judges in The American Lawyer (we covered it here) and we’ve covered a number of their decisions and opinions over the history of this blog.

As the summary of the session notes, when it comes to legal technology, few names are more synonymous with the industry than these panelists.  Craig will lead the discussion, as the judges share their views on today’s legal landscape with an eye towards what the future holds.  These eDiscovery pioneers will share their experiences and viewpoints to help attendees best prepare for the law and practice of tomorrow.

Craig referenced the session in his own excellent blog, Ball in Your Court, here. As Craig notes, “The judges will be discussing some of what you might expect, e.g., proposed Rules amendments, predictive coding, Rule 502 and expectations of lawyer technical competence.  We will also be exploring a few fresh issues, like the impact all those little screens are having on everyone in and out of court.”   Craig also indicated that there was “still time to add topics and questions of interest to you” – if there is a topic you would like him to cover, you can post a comment to his blog post here or email him at craig@ball.net.

Because this session is a Keynote General Session, it’s open to all attendees, so, if you’re at the show next week, this session is a must see.  Don’t miss it!

LTNY starts next Tuesday and eDiscovery Daily will be covering the show for the fourth straight year.  We will also be conducted our thought leader interview series at the show again for the fourth straight year as well!  After the show, we will publish the schedule for posting the interviews.  Stay tuned!

So, what do you think?  Are you attending LTNY this year?  Do you plan to attend this session?  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 3

As we noted on Thursday and Friday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Friday, we looked back at cases related to production format disputes, search disputes and technology assisted review.  Today, let’s take a look back at cases related to proportionality and the first half of the cases related to sanctions (yes, there were that many).

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

PROPORTIONALITY / COOPERATION

There were certainly at least a handful of cases where proportionality of eDiscovery and cooperation between parties was at issue, including the most viewed post in the history of this blog.  Here are three such cases:

Is a Blended Document Review Rate of $466 Per Hour Excessive?  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, 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.

Court Rejects Defendants’ Claim of Undue Burden in ERISA Case.  In the case In re Coventry Healthcare, Inc.: ERISA Litigation, Maryland Magistrate Judge Jillyn K. Schulze rejected the defendants’ claim of undue burden where they failed to suggest alternatives to using the plaintiffs’ search terms and where they could enter a clawback order to eliminate the cost of reviewing the data for responsiveness and privilege.

Court Agrees with Defendant that Preserving 5 Terabytes of Data is Enough.  In United States ex rel. King v. Solvay, S.A., Texas District Judge Gray Miller granted the defendant’s request for a protective order where the plaintiffs only offered generalized, unsupported claims to support their request to extend and expand discovery.

SANCTIONS

Yes, once again, the topic with the largest number of case law decisions related to eDiscovery is those decisions related to sanctions.  Of the 62 cases we covered this past year, over 40% of them (26 total cases) related to sanctions, either due to spoliation issues or inadequate or untimely productions, many of which were granted, but some were denied.  Here are the first 13 cases:

Company Should Have Preserved Personal eMails, But No Sanctions (Yet).  In Puerto Rico Telephone Co. v. San Juan Cable LLC, Puerto Rico Magistrate Judge Bruce J. McGiverin found that “plaintiff has proffered sufficient evidence to establish that [the defendant] OneLink failed to preserve relevant emails within its control”, but denied the plaintiff’s request for sanctions at this time because of the “absence of bad faith” on the defendant’s part and the plaintiff’s failure to demonstrate prejudice.

The Ubiquitous Apple Samsung Case and “Patentgate”.  When something gets the “gate” suffix added to it, that’s not a good thing. It’s hard to believe that a case can get more intense than when a billion dollar verdict is awarded (later reduced to a measly $599 million, then increased back up to $930 million), but the Apple v. Samsung case seems to only be getting more intense, due to the disclosure of confidential agreements that Apple had with Nokia, Ericsson, Sharp and Philips – now widely referred to as “patentgate”.

Duty to Preserve Triggered When Litigation is “Imminent”, Not “Reasonably Foreseeable”.  In the case In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, Chief District Judge David R. Herndon ruled that at least in the Seventh Circuit, the duty to preserve is triggered not when litigation is “reasonably foreseeable” but when “a litigant knew or should have known that litigation was imminent.”

Leaving Your Hard Drives in a Rental House is Negligent, Court Rules.  In Net-Com Services, Inc. v. Eupen Cable USA, Inc., the plaintiff’s destruction of evidence was negligent where its principal failed to take steps to preserve evidence he had stored in a home he rented to nonaffiliated lessees.

Despite Missing and Scrambled Hard Drives, Court Denies Plaintiff’s Request for Sanctions. In Anderson v. Sullivan, a Pennsylvania court found “that no sanctions are warranted” despite the disappearance of one hard drive, “scrambling” of another hard drive and failure to produce several e-mails because the evidence was not relevant to the underlying claims and because there was no showing the defendants intentionally destroyed evidence.

Court Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet.  In Logtale, Ltd. v. IKOR, Inc., California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct. The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

Imagine if the Zubulake Case Turned Out Like 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.

Scheindlin Reverses Magistrate Judge Ruling, Orders Sanction for Spoliation of Data.  If you’re hoping to get away with failing to preserve data in eDiscovery, you might want to think again if your case appears in the docket for the Southern District of New York with Judge Shira Scheindlin presiding.

Permissive Adverse Inference Instruction Upheld on Appeal.  In Mali v. Federal Insurance Co., the Second Circuit explained the distinctions between two types of adverse inference instructions: a sanction for misconduct versus an explanatory instruction that details the jury’s fact-finding abilities. Because the lower court opted to give a permissive adverse inference instruction, which is not a punishment, the court did not err by not requiring the defendant to show that the plaintiffs acted with a culpable state of mind.

Default Judgment Sanction Upheld on Appeal.  In Stooksbury v. Ross, the Sixth Circuit upheld the entry of default judgment as a sanction against defendants that repeatedly failed to comply with discovery obligations, including producing a “document dump” of tens of thousands of pages of nonresponsive information that prejudiced the plaintiffs.

Spoliation Sanctions Can Apply to Audio Files Too.  In Hart v. Dillon Cos., Colorado Magistrate Judge David L. West granted the plaintiff’s Motion for Sanctions for Spoliation of Evidence for failing to preserve a tape recorded interview with the plaintiff and set a hearing and oral argument as to what sanctions should be imposed for October.

Printed Copies of Documents Not Enough, Spoliation Sanctions Upheld for Discarding Computer.  On May 30, the Appellate Division of the Supreme Court of New York, First Department upheld a spoliation sanction against a plaintiff that failed to preserve electronic files and discarded his computer containing those files.

Appellate Court Denies Sanctions for Routine Deletion of Text Messages.  In PTSI, Inc. v. Haley, the appellate court denied a motion for spoliation sanctions where the defendants routinely deleted text messages and other data to “clean up” their personal electronic devices: the volume of messages and limited amount of phone storage made it difficult to retain all data and still use the phone for messaging.

Tune in tomorrow for the remaining thirteen sanctions cases in 2013!

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.

2013 eDiscovery Year in Review: eDiscovery Case Law, Part 2

As we noted yesterday, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  Yesterday, we looked back at cases related to admissibility and eDiscovery cost reimbursement.  Today, let’s take a look back at cases related to production format disputes, search disputes and technology assisted review.

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

PRODUCTION FORMAT DISPUTES

Disputes regarding the form of production appear to be on the rise.  Typically, judges are instructing to provide searchable productions with metadata, but at least one judge ruled that “without Bates stamping and .tiff format, the plaintiff’s production was not reasonably usable”.  Go figure.  Here are the six cases involving production format disputes:

Court Declines to Impose Default Judgment, But Orders Searchable Production and Extends Deadlines. In Kwan Software Engineering, Inc. v. the defendant Technologies, LLC, California District Judge Susan Illston denied the plaintiff’s motion for terminating sanctions against the defendant for late, non-searchable productions, but did order the defendant to produce documents in a searchable format with metadata and extended the pretrial schedule so that the plaintiff would not be prejudiced by the late productions.

Court Denies Plaintiff’s Request for Native Production, Allows PDFs Instead. In Westdale Recap Props. v. Np/I&G Wakefield Commons, North Carolina Magistrate Judge James E. Gates upheld the plaintiff’s motion to compel the defendants to conduct supplemental searches and production, but denied the plaintiff’s motion with regard to requiring the defendant to produce ESI in native format, instead finding that “production in the form of searchable PDF’s is sufficient”.

Judge Sides with Both Parties in Form of Production Dispute. The opinion in Kwasniewski v. Sanofi-Aventis U.S. LLC suggests that producing parties can satisfy their obligation to produce documents in an organized manner by offering a table of contents, rendering text searchable, indicating which data responds to which request, and including certain metadata, such as Bates numbers.

Defendant Compelled by Court to Produce Metadata. In AtHome Care, Inc. v. The Evangelical Lutheran Good Samaritan Society, Idaho District Judge B. Lynn Winmill granted the plaintiff’s motion to compel documents, ordering the defendant to identify and produce metadata for the documents in this case.

Court Rules Production Must be TIFFs with Bates Numbers. In Branhaven, LLC v. Beeftek, Inc., Maryland Magistrate Judge Susan K. Gauvey sanctioned plaintiff’s attorneys for wrongfully certifying the completeness of their eDiscovery production and also ruled that defendants “demonstrated that without Bates stamping and .tiff format”, the plaintiff’s production “was not reasonably usable and therefore was insufficient under Rule 34”.

Waste Management Wants to Throw Away the Metadata. In the case In Re: Waste Management of Texas, Inc., a Texas appeals court refused to grant Waste Management’s petition for writ of mandamus to direct the trial court to withdraw its order to produce native, electronic format with all metadata.

SEARCH DISPUTES

Disputes regarding search terms, with regard to which terms to perform and also whether search terms should be disclosed, were also on the rise this year.  Believe it or not, one plaintiff referred to Boolean searching as “unprecedented”.  Here are the five cases we covered regarding search term disputes:

Court Orders Plaintiff to Perform Some Requested Searches Despite the Plaintiff’s Claim that they’re “Unprecedented”. In Swanson v. ALZA Corp., California Magistrate Judge Kandis A. Westmore granted in part and denied in part the defendant’s request to compel the plaintiff to apply its search terms to his ESI, ordering some of the search terms to be performed, despite the plaintiff’s assertion that the “the application of Boolean searches was unprecedented”.

Without Meet and Confer Approval of its “Triangulating” Approach to Discovery, Defendant Ordered to Supplement Production. In Banas v. Volcano Corp., California District Judge William H. Orrick determined that a defendant’s approach to discovery in which identifying the relevant documents by “triangulating” the defendant’s employees wasn’t discussed with the plaintiff beforehand in a meet and confer. Despite the fact that the court did “not find that defendant’s production technique was unreasonable”, the defendant was ordered to supplement its responses since the approach wasn’t discussed and it left out multiple deponents.

Use of Model Order Doesn’t Avoid Discovery Disputes. In MediaTek, Inc. v. Freescale Semiconductor, Inc., when the parties could not agree on search terms, California Magistrate Judge Jacqueline Scott Corley ordered one party to run test searches before lodging objections and required both parties to meet and confer before approaching the court with further discovery disputes.

If Production is Small, Does that Mean ESI is Being Withheld? In American Home Assurance Co. v. Greater Omaha Packing Co., Nebraska District Judge Lyle E. Strom ruled (among other things) that the defendants must disclose the sources it has searched (or intends to search) for electronically stored information (ESI) to the plaintiffs and, for each source, identify the search terms used.

Court Forces Defendant to Come to Terms with Plaintiff Search Request. In Robert Bosch LLC v. Snap-On, Inc., Michigan District Judge Robert H. Cleland granted the plaintiff’s motion to compel with regard to specific search terms requested for the defendant to perform. The judge denied the plaintiff’s request for sanctions to award attorneys’ fees and expenses incurred in bringing its motion to compel.

TECHNOLOGY ASSISTED REVIEW

With technology assisted review having been approved in several cases in 2012, we started to see some results of that process last year and conclusion of the plaintiff’s efforts to recuse Judge Peck in DaSilva Moore.  We also saw the approval of a multi-modal approach in one case and asked the question whether 31,000 missed relevant documents is an acceptable outcome in another.  Here are six cases related to technology assisted review from 2013:

Plaintiffs’ Supreme Effort to Recuse Judge Peck in Da Silva Moore Denied. As we discussed back in July, attorneys representing lead plaintiff Monique Da Silva Moore and five other employees filed a petition for a writ of certiorari with the US Supreme Court arguing that New York Magistrate Judge Andrew Peck, who approved an eDiscovery protocol agreed to by the parties that included predictive coding technology, should have recused himself given his previous public statements expressing strong support of predictive coding. On October 7, that petition was denied by the Supreme Court.

Judge Says “Dude, Where’s Your CAR?” Ralph Losey describes a unique case in his e-Discovery Team ® blog (Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One). In Northstar Marine, Inc. v. Huffman, the defendant’s motion to enforce the parties’ document production agreement was granted after Alabama Magistrate Judge William E. Cassady rejected the plaintiff’s excuse that “it is having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”.

Is it OK for an eDiscovery Vendor to Work on Both Sides of a Case?  Back in June, we covered a case where the plaintiffs’ motion to compel the defendant to meet and confer to establish an agreed protocol for implementing the use of predictive coding software was dismissed (without prejudice) after the defendants stated that they were prepared to meet and confer with the plaintiffs and their non-disqualified ESI consultants regarding the defendants’ predictive coding process. The sticking point may be the ESI consultant in dispute.

Never Mind! Plaintiffs Not Required to Use Predictive Coding After All. Remember EORHB v. HOA Holdings, where, in a surprise ruling, both parties were instructed to use predictive coding by the judge? Well, the judge has changed his mind.

Plaintiffs’ Objections to Defendant’s Use of Keyword Search before Predictive Coding Rejected. In the case In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), the Plaintiffs’ Steering Committee in a Multi District Litigation objected to the defendant’s use of keyword searching prior to performing predictive coding and requested that the defendant go back to its original set of 19.5 million documents and repeat the predictive coding without performing keyword searching. Indiana District Judge Robert L. Miller, Jr. denied the request.

Is 31,000 Missed Relevant Documents an Acceptable Outcome?  It might be, if the alternative is 62,000 missed relevant documents. In January, we reported on the first case for technology assisted review to be completed, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, in which predictive coding was approved last April by Virginia State Circuit Court Judge James H. Chamblin. Now, as reported by the ABA Journal (by way of the Wall Street Journal Law Blog), we have an idea of the results from the predictive coding exercise.

Tune in Monday for more key cases of 2013!

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.

Split Decision between Plaintiff and Defendant Regarding Search Terms – eDiscovery Case Law
 

In Federal Deposit Insurance Corp. v. Giannoulias, No. 12 C 1665, 2013 U.S. Dist. (N.D. III Oct. 23, 2013), Illinois District Judge John F. Grady resolved several motions regarding discovery proceedings in a $114 million lawsuit. Two of the motions concerned search terms for documents and electronically stored information (ESI), in which the plaintiff opposed the defendants’ request for six additional terms to be included in retrieving discovery documents. The court ruled that four additional search terms would be added, while two would be excluded.

This discovery dispute arose in a lawsuit filed by the Federal Deposit Insurance Corp. (FDIC) as a receiver for Broadway Bank, which alleges that several former officers and directors of the now-closed bank had “negligently approved” 20 commercial real estate loans, resulting in losses to the FDIC of $114 million. During the first phase of discovery, the defendants had served 242 requests for production, and in response the plaintiff produced 500,000 pages of documents that pertained to the loans in question.

The dispute occurred during the second phase of discovery concerning the ESI, which in this case consists of mostly emails. The plaintiff and defendant had cooperatively generated a list of around 250 unique search terms, which the plaintiff applied to the ESI and produced approximately 150,000 hits. The defendant then requested that six further search terms be included. Combined, the six terms produced around 16,800 additional hits.

The plaintiff disagreed with the addition of the search terms and both parties failed to reach an agreement regarding what, specifically, should be done with the data resulting from the finalized ESI search terms. A proposal from the defendants requested that the plaintiff be required to review the filtered ESI to determine which materials were responsive to the defendants’ request, and also that the plaintiff organize and label the production of filtered results.

However, the plaintiff contended that the proposed ESI Protocol would be “unduly burdensome,” and instead proposed to provide a database in Relativity to contain all documents generated by the finalized search terms. The defendants would then be allowed to search and review the database, identify the documents of interest, and subject the chosen documents to a review by the plaintiff for privilege before being furnished with any non-privileged documents.

Judge Grady’s ruling split the additional six search terms in question, allowing four specific and relevant terms to be added to the discovery, and disallowing two general terms: “capitalized” and “capitalization.” This decision was based on the nature of the plaintiff’s business, and the view that “the connection between the terms ‘capitalized’ and ‘capitalization’ and the complaint’s core negligence allegations is tenuous, and the likelihood of entirely irrelevant hits appears high.”

With regards to responsiveness review and organization of document production, the court ruled that while the plaintiff must filter the discovery documents according to the agreed-upon search terms by conducting “a diligent search, which involves developing a reasonably comprehensive search strategy,” the plaintiff is not obligated to “examine every scrap of paper in its potentially voluminous files” to comply with discovery obligations. Further, the court ruled in favor of the plaintiff toward organizing and categorizing relevant ESI according to the numerous discovery requests by the defendants, agreeing that such a process would “impose a substantial burden” on the plaintiff.

So, what do you think?  Is the plaintiff meeting discovery obligations without a full responsiveness review? Should all of the requested search terms have been added? 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.

Six eDiscovery Predictions for 2014, Part One – eDiscovery Trends

It’s that time of year, where people make predictions for the coming year for all sorts of things, including electronic discovery trends for the coming year.  Though I have to say, I’ve seen fewer predictions this year than in past years.  Nonetheless, I feel compelled to offer some of my own predictions.  If they turn out right, you heard it here first!

Prediction 1: Predictive coding technologies will become more integrated into the discovery process, for more than just review.

Two or three years ago, predictive coding (a.k.a., technology assisted review or computer assisted review) was a promising technology that had yet to be officially accepted in the courts.  Then, in 2012, cases such as Da Silva Moore v. Publicis Groupe & MSL Group, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al and In re Actos (Pioglitazone) Products Liability Litigation, predictive coding was approved (and there was at least two other cases where it was contemplated).  So, it’s beginning to be used, though most attorneys still don’t fully understand how it works or understand that it’s not a “turn-key” software solution, it includes a managed process that uses the software.

It’s not going out on a limb to say that this year predictive coding technologies will be more widely used; however, I think those technologies will branch out beyond review to other phases of the eDiscovery life cycle, including Information Governance.  Predictive coding is not new technology, it’s basically artificial intelligence applied to the review process, so it’s logical that same technology can be applied to other areas of the discovery life cycle as well.

Prediction 2: The proposed amendments will be adopted, but it will be a struggle.

Changes to Federal Rules for eDiscovery have been drafted and have been approved for public comment.  However, several people have raised concerns about some of the new rules.  Judge Shira Scheindlin has criticized proposed Rule 37(e), intended to create a uniform national standard regarding the level of culpability required to justify severe sanctions for spoliation, for creating “perverse incentives” and encouraging “sloppy behavior.”

U.S. Sen. Christopher Coons (D-Del.), who chairs the Subcommittee on Bankruptcy and the Courts, predicted that some proposed restrictions – such as reducing the number of depositions, interrogatories and requests for admission for each case – “would do nothing about the high-stakes, highly complex or highly contentious cases in which discovery costs are a problem.”  Senator Coons and Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund Inc., also expressed concerns that those limits would likely restrict plaintiffs in smaller cases in which discovery costs are not a problem.

Needless to say, not everybody is a fan of all of the new proposed rules, especially Rule 37(e).  But, the proposed rules have gotten this far and there are a number of lobbyists pushing for adoption.  So, I think they’ll be adopted, but not without some controversy and struggle.

Prediction 3: The eDiscovery industry will continue to consolidate and many remaining providers will need to continue to reinvent themselves.

Every year, I see several predictions that more eDiscovery vendors will fail and/or there will be more consolidation in the industry.  And, every year there is consolidation.  Here’s the latest updated list of mergers, acquisitions and investments since 2001, courtesy of Rob Robinson.  But, every year there also new players in the market, so the number of providers never seems to change dramatically.  Last year, by my count, there were 225 exhibitors at Legal Tech New York (LTNY), with many, if not most of them in the eDiscovery space.  This year, the partial list stands at 212.  Not a tremendous drop off, if any.

Nonetheless, there will be more pressure on eDiscovery providers than ever before to provide services at reasonable prices, yet turn a profit.  I’ve seen bold predictions, like this one from Albert Barsocchini at NightOwl Discovery in which he predicted the possible end of eDiscovery processing fees.  I’m not sure that I agree that they’re going away entirely, but I do see further commoditization of several eDiscovery services.  The providers that offer truly unique software offerings and/or expert services to complement any commodity-based services that they offer will be the ones best equipped to meet market demands, profitably.

On Monday, I predict I’ll have three more predictions to cover.  Hey, at least that’s one prediction that should come true!

So, what do you think?  Do you have any eDiscovery predictions for 2014?  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.