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eDiscovery Trends: Sampling within eDiscovery Software

Those of you who have been following this blog since early last year may remember that we published a three part series regarding testing your eDiscovery searches using sampling (as part of the “STARR” approach discussed on this blog about a year ago).  We discussed how to determine the appropriate sample size to test your search, using a sample size calculator (freely available on the web).  We also discussed how to make sure the sample size is randomly selected (again referencing a site freely available on the web for generating the random set).  We even walked through an example of how you can test and refine a search using sampling, saving tens of thousands in review costs with defensible results.

Instead of having to go to all of these external sites to manually size and generate your random sample set, it’s even better when the eDiscovery ECA or review software you’re using handles that process for you.  The latest version of FirstPass®, powered by Venio FPR™, does exactly that.  Version 3.5.1.2 of FirstPass has introduced a sampling module that provides a wizard that walks you through the process of creating a sample set to review to test your searches.  What could be easier?

The wizard begins by providing a dialog to enable the user to select the sampling population.  You can choose from tagged documents from one or more tags, documents in saved search results, documents from one or more selected custodians or all documents in the database.  When choosing tags, you can choose ANY of the selected tags, ALL of the selected tags, or even choose documents NOT in the selected tags (for example, enabling you to test the documents not tagged as responsive to confirm that responsive documents weren’t missed in your search).

You can then specify your confidence level (e.g., 95% confidence level) and confidence interval (a.k.a., margin of error – e.g., 4%) using slider bars.  As you slide the bars to the desired level, the application shows you how that will affect the size of the sample to be retrieved.  You can then name the sample and describe its purpose, then identify whether you want to view the sample set immediately, tag it or place it into a folder.  Once you’ve identified the preferred option for handling your sample set, the wizard gives you a summary form for displaying your choices.  Once you click the Finish button, it creates the sample and gives you a form to show you what it did.  Then, if you chose to view the sample set immediately, it will display the sample set (if not, you can then retrieve the tag or folder containing your sample set).

By managing this process within the software, it saves considerable time outside the application having to identify the sample size and create a randomly selected set of IDs, then go back into the application to retrieve and tag those items as belonging to the sample set (which is how I used to do it).  The end result is simplified and streamlined.

So, what do you think?  Is sample set generation within the ECA or review tool a useful feature?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: I work for CloudNine Discovery, which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).

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

eDiscovery Trends: Our 2012 Predictions
 

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

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

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

So, what do you think?  Care to offer your own predictions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: 2012 Predictions – By The Numbers

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  I know what you’re thinking – “oh no, not another set of eDiscovery predictions!”  However, at eDiscovery Daily, we do things a little bit differently.  We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”).  So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes.  I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery.  Oh, and also here, here and here.  Ten sets of predictions in all!  Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints.  If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

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

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

Some interesting predictions.  Tune in tomorrow for ours!

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: Joseph Collins
 

This is the fifth of our Holiday Thought Leader Interview series, originally scheduled to be published on Tuesday, but rescheduled to today.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is Joseph Collins.  Joseph is the co-founder and president of VaporStream, which provides recordless communications. Joseph previously worked in the energy marketplace, but has become an advocate for private communication in business, even within the legal community.

Your product is designed to provide email-like communications that leave no record after being read. How did you get interested in communications that do not leave records? Why is this a legitimate business need?

We got into recordless communications because of the basic lack of privacy and confidentially online.  When I got my first email account back in the day I was told to be very careful what I write because you have no control over that message; I had to write like what I was writing was going to be on the front page of the newspaper.  The problem is people just don’t communicate that way, people need privacy and email and text just do not allow for it.

There is a legitimate business need because businesses need privacy and confidentiality for their internal communications.  Many times employees need to have confidential discussions and VaporStream facilitates that.  Have frank and honest communications are paramount in any company, and it is very hard to have that when think that that email and conversation might be end up in the wrong place.

Businesses do not need to “keep everything,” in fact they need to be able to decide what is considered to be material business information and what is not.  VaporStream facilities this decision making process because the data creator is going to be much better at knowing what need to be retained then a record management person on the back end.

How do you address the concerns of the legal community about VaporStream communications? Lawyers have been trained to keep records of everything- why should they consider using a service like yours?

Most lawyers keep everything because they already get private communications via attorney privilege, but also because they bill by the hour and want the email to prove it.  So lawyers are not our target market, but their clients are, and lawyers understand the risk and liability in communications.  There is one set of lawyers that can and do use VaporStream: IP lawyers. Their email is discoverable as part of the patent process, so we find IP lawyers like to use it to have those private and confidential communications that they need to effectively do their job.

Does VaporStream enable law breaking? If the executives at Enron had used a product like this, would they have gotten away with conspiring to manipulate financial data?

VaporStream is a technology and any technology can be misused, just like a knife or a car, there are benefits and possible misuse. From a corporate prospective you can use our VaporStream Enterprise Server, which will allow you to use filters just like corporate email and give companies protection from misuse.

In no way would VaporStream have helped Enron. The guys at Enron got caught because they commit fraud, not because of some smoking gun in email discovery. It was the fraud that bankrupted Enron, not the communications around it.  

Do you think that organizations over-preserve electronic evidence? Is there an argument to be made for more data destruction and less retention?

Absolutely, but the question is how do you accomplish this task. Best practices for data preservation and destruction have been around for a while now, but are companies better off today? Looking at the headlines for newspapers and the mountains of eDiscovery, it is clear the answer is no.

VaporStream allows companies to keep the valuable business information in email and then automatically get rid of the non-material information that is created by the company. By keeping information you do not need, not only are you are wasting lots of money each year, but it is a tremendous legal liability. Again, most companies are not obligated to “keep everything,” so it’s crazy to do so.  

What does this mean for eDiscovery? Could parties get in trouble for a failure to preserve evidence if it's discovered they use a service like VaporStream to communicate information relevant to a case?

Well, the key to using VaporStream is to have sound user policy. Then users will know when to use VaporStream and when not to use it. If there is a situation where there is say, a legal hold, then it probably would not a good choice to use VaporStream at that situation. By having the proper user policy, the company is protected, and VaporStream is an extension of that policy.

What is the future of this kind of communication? How does recordless communication fit into a world of social media and mobile computing where people leave digital communications all over the place?

When we look at the communications landscape, there are lots of places to share, which is great, but there is no place to have a private conversation. It’s hard to have honest and frank discussions without having trust in the communications channel.  If you think about the online world as an extension of the real world there still needs to be a place to have a private chat.

Thanks, Joseph, 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!

Editor's Note: eDiscovery Daily will take a break for a couple of days to celebrate the holidays and will resume posts on Tuesday, December 27.  Happy Holidays from all of us at Cloudnine Discovery and eDiscovery Daily!

eDiscovery Trends: Joshua Poje
 

This is the fourth of our Holiday Thought Leader Interview series. I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is Joshua Poje.  Joshua is a Research Specialist with the American Bar Association’s Legal Technology Resource Center, which publishes the Annual Legal Technology Survey. He is a graduate of DePaul University College of Law and Augustana College. 

Why does the American Bar Association produce an annual legal technology survey? Why does legal technology demand special attention?

Technology is inescapable for lawyers today. It's integrated into most aspects of the profession, whether that's communicating with clients, interacting with the courts, or marketing a practice. At this point, if you want to understand how lawyers are practicing, you really have to understand how they're using technology.

That's what we're trying to measure with our survey and that's also the reason we direct our survey questionnaires to practicing attorneys rather than to IT staff or vendors. We aren't just interested in learning what tools are on the market or what technology firms are purchasing; we want to know what they're actually using.

How long have you been involved with the ABA Legal Technology Survey, and how has it changed in that time?

The 2011 ABA Legal Technology Survey Report is the fifth edition I've worked on personally, but the survey has been running in various forms for more than 15 years. Aside from moving to electronic publishing via PDF in 2008, the biggest change we've made in the time I've been here was adding a sixth volume–Technology Basics. That volume allowed us to take a deeper dive into basic questions about budgeting, training, and security.

Aside from that, most of the changes in the survey are evolutionary. We sit down every Fall and evaluate the questionnaire, sometimes adding a few questions about new technology and sometimes dropping questions about technology that's fallen out of use. We try to maintain a high level of consistency from year-to-year so that we can take a meaningful look at trends.

Lawyers have a reputation for being late adopters of technology and even technophobic in many respects. Is this an accurate assessment? Has that changed, or is there still an element of truth to the stereotype?

Lawyers are in a difficult position when it comes to new technology. Normal businesses and organizations have to deal with issues like cost, training, and implementation obstacles when they adopt new technology, and the biggest risk is usually just losing money. Lawyers share those challenges and risks, but also have to consider their obligations under their states' rules of professional conduct. A misstep under the rules can have serious and long-lasting professional consequences. So I think it's understandable that some lawyers take a cautious approach to new technology.

That said, lawyers have certainly become more comfortable with new technology over the last few years. Take Twitter, for example. A recent Pew study found that 13 percent of online adults use Twitter. That's right in line with our 2011 survey, where 14 percent of our lawyer respondents reported using Twitter for personal, non-professional purposes. Around 6 percent even use it for professional activities.

In some cases, lawyers actually seem to be leading on technology. A Nielsen study from May 2011 found that just 5 percent of US consumers own a tablet device like the iPad. In our survey, 20 percent of our respondents reported having tablets available at their firms with 12 percent reporting that they personally use the devices.

There seems to be a new trend or buzzword ever few years that dominates the legal technology conversation. At one point it was all about knowledge management and now it seems to be cloud computing, and then whatever comes next. Do you get the sense legal technologists are prone to getting taken in by hype? Or are they generally practical consumers of technology?

The endless hype cycle is just a reality of the technology sector, legal or otherwise. I think our challenge as legal technology professionals is to navigate the hype to identify the useful, practical tools and strategies that lawyers and other legal professionals can put to good use. We also have to be on alert for the technology that might be problematic for lawyers, given the rules of professional conduct.

There are certainly times when the technology we love doesn't catch on with practicing attorneys. Technology experts have been pushing RSS for years, and yet in 2011 we still had 64 percent of our respondents report that they never use it. But on the other hand, "paperless" was the hot buzzword five or six years ago, and now it's a standard strategy at many law firms of all sizes.

Have the demands of eDiscovery forced the profession to come to grips with their own technology use? Are lawyers more savvy about managing their data?

EDiscovery has certainly been influential for some attorneys, but it's worth noting that 42 percent of our respondents in 2011 reported that they never receive eDiscovery requests on behalf of their clients, and 49 percent reported that they never make eDiscovery requests. Those numbers have barely moved over the last few years.

As you might expect, electronically stored information (ESI) has generally been a bigger concern at the large law firms. In 2011, 77 percent of respondents at firms with 500+ attorneys reported that their firm had been involved in a case requiring processing/review of ESI, compared to just 19 percent of solo practitioners. Those large firms, however, outsource a significant amount of their eDiscovery processing. In 2011, 62 percent reported outsourcing eDiscovery processing to eDiscovery consultants, 50 percent outsourced to computer forensics specialists, and 35 percent outsourced to other lawyers in the U.S.

What trends and technologies are you most interested in following in the next survey?

Cloud computing is definitely a topic to keep an eye on. In 2011, 76 percent of our respondents reported that they had never used a cloud-based tool for legal tasks. Of those, 63 percent cited unfamiliarity with the technology as a reason. A lot of attention has been focused on the cloud this year, though, particularly after Apple's iCloud announcement. It'll be interesting to see how those numbers move in 2012.

Mobile technology should be another interesting area. BlackBerry held onto the overall lead for smartphones in 2011, but iOS and Android made substantial gains. Among our solo and small firm respondents, the iPhone actually led the BlackBerry. Will that carry over to the larger firms in 2012? And on the tablet front, it should be interesting to see how the market shifts. In 2011, 96 percent of the respondents who reported having a tablet available specified the iPad. Apple now has competition from Motorola, Samsung, RIM, HP and others, so it's possible we could see movement in the numbers.

Thanks, Joshua, for participating in the interview!

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

eDiscovery Trends: John Simek
 

This is the third of our Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is John Simek. John is the Vice President of Sensei Enterprises, a computer forensics firm in Fairfax, Va, where he has worked since 1997. He is an EnCase Certified Examiner and is a nationally known testifying expert in computer forensic issues. Together with his wife, Sharon Nelson, John has become a frequent speaker on eDiscovery topics and digital forensic issues. We have also interviewed Sharon, who serves as Sensei’s President, for this series, and her interview will appear this coming Wednesday.

You have been a forensic examiner for a long time. How has the business changed over that time? How much does the rate of change in computer technology make your job difficult? Has social media and mobile technology changed the nature of your work and the evidence in play?

Certainly the technology changes present a challenge for any forensic examiner. We are constantly investing in training and tools to deal with the changing landscape. Social media investigations and mobile devices are explosive forms of evidence for many of our cases. The constant changes in smartphones means we must have dozens of tools to extract data from iPads, Androids, BlackBerrys, iPhones, tablets and other mobile devices. Access to social media data varies as well. Some is readily available in the public areas, some may reside on the actual computer used to access the social media sites and some data may be held by the providers themselves, where the user has no clue it is being collected.

There have been several cases of law firms and EDD providers suing each other of late. Why is there this seeming rise in conflict and how does it affect relationships in the industry?

I’ve only seen two such cases and they get ugly really quick. I think the primary reason is lack of transparency and adequate communication. The client should always know what the anticipated costs and effort will be. Should scope change then a new estimate needs to be communicated. I think all too often the EDD providers launch out of the gate and the costs spiral out of control. Obviously, if you are one of those providers that ended up in court over fees or even inadequate or improper processing of ESI, your reputation will be forever spoiled.

There are a lot of certifications a forensic examiner can obtain. What is the value of certification? How should buyers of EDD services evaluate their forensic examiners?

Certifications are a good starting point, although I think they have lost their value over the last several years. Perhaps the tests are getting easier, but I’m seeing folks with forensic certifications that shouldn’t be trusted with a mouse in their hand. Don’t just look to forensic certifications either. Other technology (network, operating system, database, etc.) certifications are also valuable. Check CVs. Do they speak, write and have previous experiences testifying? One of the best methods of evaluation is referrals. Did they do a quality job? Were they on time? Did the costs fall within budget?

You’ve done a lot of work in family law cases. In cases where emotions are running high, how do you counsel clients? Is there a way to talk to people about proportionality when they are angry?

You’ve hit the nail on the head. There is very little logic in family law cases, especially when emotions are running high. I’ve lost count of the number of times we’ve told clients NOT to spend their money on continuing or even starting a forensic analysis. Some listen and some don’t. The exception is where there are issues pertaining to the welfare of any children. We had one case where dad was into BDSM and exhibiting similar behavior towards the children. Mom had no job and was extremely brutalized from the abuse over the years. We completed that case pro bono as it was the right thing to do. Dad lost custody and ordered supervised visitation only.

There has been a lot of hype about EDD services for small firms. In your experience, is this becoming a reality? Can small and solo firms compete with large firms for more EDD cases?

Electronic evidence plays a part in more and more cases. There is a crying need for better tools and methods to review ESI in the smaller cases. Thankfully, some vendors are listening. Products like Digital Warroom and Nextpoint’s products are very affordable for the smaller cases and don’t require a large investment by the solo or small firm attorney. These are hosted solutions, which means you are using the cloud. Large firms are also using hosted solutions, but may use other vendor products depending on the type of data (e.g. foreign language) and/or volume.

You testify in a lot of cases as an expert witness. What are the reasons your services might be needed in this area? What are common reasons that forensic evidence is being challenged, and how can legal teams avoid being challenged?

The good news is that less than 10% of our cases end up going to trial. As we say in the forensic world, “The truth is the truth.” Once we have had a chance to analyze the evidence and report the findings, there are rarely any challenges. That’s what a forensic exam is all about- being repeatable. The opposing party’s examiner better find the same results. The challenge may come from the interpretation of the results. This is where experience and knowledge of the expert comes into play. Many of the forensic examiners today have never used a computer without a graphical interface. Remember the Casey Anthony case? I cringed when I heard the prosecution testimony about the activity surrounding the Internet searches. It failed the smell test in my mind, which ended up being true since the expert later admitted there was a problem with the software that was used.

Would you recommend a similar career path to young technologists? What do you like about being a forensic examiner?

Some universities are now offering degrees in Digital Forensics or some similar name. I’m not sure I would go the route of computer forensics as a baseline. I’m seeing more activity in what I would call digital investigations. This includes network forensics and dealing with cases such as data breaches. We are doing more and more of these types of exams. It’s sort of like following the data trail. Probably the single best thing about being a forensic examiner is getting to the truth. Since we also do criminal defense work, there are many times that we’ve had to call the attorney and tell them that their client needs a new story.

Thanks, John, for participating in the interview!

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

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

Since eDiscovery Daily debuted over 14 months ago, we’ve covered a lot of case law decisions related to eDiscovery.  65 posts related to case law to date, in fact.  We’ve covered cases associated with sanctions related to failure to preserve data, issues associated with incomplete collections, inadequate searching methodologies, and inadvertent disclosures of privileged documents, among other things.  We’ve noted that 80% of the costs associated with eDiscovery are in the Review phase and that volume of data and sources from which to retrieve it (including social media and “cloud” repositories) are growing exponentially.  Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis).

All of those phases lead to one inevitable stage in eDiscovery: Production.  Yet, few people talk about the actual production step.  If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, Production is “Ringo”.

It’s the final crucial step in the process, and if it’s not handled correctly, all of the due diligence spent in the earlier phases could mean nothing.  So, it’s important to plan for production up front and to apply a number of quality control (QC) checks to the actual production set to ensure that the production process goes as smooth as possible.

Planning for Production Up Front

When discussing the production requirements with opposing counsel, it’s important to ensure that those requirements make sense, not only from a legal standpoint, but a technical standpoint as well.  Involve support and IT personnel in the process of deciding those parameters as they will be the people who have to meet them.  Issues to be addressed include, but not limited to:

  • Format of production (e.g., paper, images or native files);
  • Organization of files (e.g., organized by custodian, legal issue, etc.);
  • Numbering scheme (e.g., Bates labels for images, sequential file names for native files);
  • Handling of confidential and privileged documents, including log requirements and stamps to be applied;
  • Handling of redactions;
  • Format and content of production log;
  • Production media (e.g., CD, DVD, portable hard drive, FTP, etc.).

I was involved in a case recently where opposing counsel was requesting an unusual production format where the names of the files would be the subject line of the emails being produced (for example, “Re: Completed Contract, dated 12/01/2011”).  Two issues with that approach: 1) The proposed format only addressed emails, and 2) Windows file names don’t support certain characters, such as colons (:) or slashes (/).  I provided that feedback to the attorneys so that they could address with opposing counsel and hopefully agree on a revised format that made more sense.  So, let the tech folks confirm the feasibility of the production parameters.

The workflow throughout the eDiscovery process should also keep in mind the end goal of meeting the agreed upon production requirements.  For example, if you’re producing native files with metadata, you may need to take appropriate steps to keep the metadata intact during the collection and review process so that the metadata is not inadvertently changed. For some file types, metadata is changed merely by opening the file, so it may be necessary to collect the files in a forensically sound manner and conduct review using copies of the files to keep the originals intact.

Tomorrow, we will talk about preparing the production set and performing QC checks to ensure that the ESI being produced to the requesting party is complete and accurate.

So, what do you think?  Have you had issues with production planning in your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Rewind: Eleven for 11-11-11
 

Since today is one of only 12 days this century where the month, day and year are the same two-digit numbers (not to mention the biggest day for “craps” players to hit Las Vegas since July 7, 2007!), it seems an appropriate time to look back at some of our recent topics.  So, in case you missed them, here are eleven of our recent posts that cover topics that hopefully make eDiscovery less of a “gamble” for you!

eDiscovery Best Practices: Testing Your Search Using Sampling: On April 1, we talked about how to determine an appropriate sample size to test your search results as well as the items NOT retrieved by the search, using a site that provides a sample size calculator. On April 4, we talked about how to make sure the sample set is randomly selected. In this post, we’ll walk through an example of how you can test and refine a search using sampling.

eDiscovery Best Practices: Your ESI Collection May Be Larger Than You Think: Here’s a sample scenario: You identify custodians relevant to the case and collect files from each. Roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose “efiles” is collected in total from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform first pass review and, eventually, linear 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!! What happened?!?

eDiscovery Trends: Why Predictive Coding is a Hot Topic: Last month, we considered a recent article about the use of predictive coding in litigation by Judge Andrew Peck, United States magistrate judge for the Southern District of New York. The piece has prompted a lot of discussion in the profession. While most of the analysis centered on how much lawyers can rely on predictive coding technology in litigation, there were some deeper musings as well.

eDiscovery Best Practices: Does Anybody Really Know What Time It Is?: Does anybody really know what time it is? Does anybody really care? OK, it’s an old song by Chicago (back then, they were known as the Chicago Transit Authority). But, the question of what time it really is has a significant effect on how eDiscovery is handled.

eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency: Insanity is doing the same thing over and over again and expecting a different result. But, in ESI review, it can be even worse when you get a different result. Most email messages are part of a larger discussion, which could be just between two parties, or include a number of parties in the discussion. To review each email in the discussion thread would result in much of the same information being reviewed over and over again. Instead, message thread analysis pulls those messages together and enables them to be reviewed as an entire discussion.

eDiscovery Best Practices: When Collecting, Image is Not Always Everything: There was a commercial in the early 1990s for Canon cameras in which tennis player Andre Agassi uttered the quote that would haunt him for most of his early career – “Image is everything.” When it comes to eDiscovery preservation and collection, there are times when “Image is everything”, as in a forensic “image” of the media is necessary to preserve all potentially responsive ESI. However, forensic imaging of media is usually not necessary for Discovery purposes.

eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off: Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule. While it’s not always clear to what extent “safe harbor” protection extends, one case from a few years ago, Disability Rights Council of Greater Washington v. Washington Metrop. Trans. Auth., D.D.C. June 2007, seemed to indicate where it does NOT extend – auto-deletion of emails.

eDiscovery Best Practices: Checking for Malware is the First Step to eDiscovery Processing: A little over a month ago, I noted that we hadn’t missed a (business) day yet in publishing a post for the blog. That streak almost came to an end back in May. As I often do in the early mornings before getting ready for work, I spent some time searching for articles to read and identifying potential blog topics and found a link on a site related to “New Federal Rules”. Curious, I clicked on it and…up popped a pop-up window from our virus checking software (AVG Anti-Virus, or so I thought) that the site had found a file containing a “trojan horse” program. The odd thing about the pop-up window is that there was no “Fix” button to fix the trojan horse. So, I chose the best available option to move it to the vault. Then, all hell broke loose.

eDiscovery Trends: An Insufficient Password Will Thwart Even The Most Secure Site: Several months ago, we talked about how most litigators have come to accept that Software-as-a-Service (SaaS) systems are secure. However, according to a recent study by the Ponemon Institute, the chance of any business being hacked in the next 12 months is a “statistical certainty”. No matter how secure a system is, whether it’s local to your office or stored in the “cloud”, an insufficient password that can be easily guessed can allow hackers to get in and steal your data.

eDiscovery Trends: Social Media Lessons Learned Through Football: The NFL Football season began back in September with the kick-off game pitting the last two Super Bowl winners – the New Orleans Saints and the Green Bay Packers – against each other to start the season. An incident associated with my team – the Houston Texans – recently illustrated the issues associated with employees’ use of social media sites, which are being faced by every organization these days and can have eDiscovery impact as social media content has been ruled discoverable in many cases across the country.

eDiscovery Strategy: "Command" Model of eDiscovery Must Make Way for Collaboration: In her article "E-Discovery 'Command' Culture Must Collapse" (via Law Technology News), Monica Bay discusses the old “command” style of eDiscovery, with a senior partner leading his “troops” like General George Patton – a model that summit speakers agree is "doomed to failure" – and reports on the findings put forward by judges and litigators that the time has come for true collaboration.

So, what do you think?  Did you learn something from one of these topics?  If so, which one?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscoveryDaily would like to thank all veterans and the men and women serving in our armed forces for the sacrifices you make for our country.  Thanks to all of you and your families and have a happy and safe Veterans Day!

eDiscovery Trends: Madoff Ponzi Scheme Case Documents May Be Turned Over to eData Rooms and Special Masters
 

The trustee responsible for coordinating the recovery of assets and data involved in Bernard L. (“Bernie”) Madoff's $65 billion Ponzi fraud investigation is presently seeking to secure special masters and create an "eData room" to ensure that the enormous volume of data accumulated during this worldwide investigation is collected and retained.  For more on the increasing use of special masters to facilitate eDiscovery cases, click here).

Almost three years after Madoff's arrest in December 2008, the massive fraud investigation has now spawned roughly 900 lawsuits worldwide involving 16,000 parties in 30 countries. The number of files and documents related to Madoff's Ponzi scheme is equally astronomical – and as perhaps the most significant fraud case of the decade – or even the century – these documents and lawsuits contain information vital as precedent for future criminal cases.

As a result, trustee Irving Picard has determined to collect all of the ESI related to these cases in a single eData room with the help of special masters that would be appointed by US bankruptcy Judge Burton Lifland.  eData rooms are web-based review platforms that can support centralized access of the ESI in question for all approved parties.

As the use of technology becomes more of a key issue in fraud cases, discovery of ESI associated with that technology is becoming ever more important in the practice of law, making a historic case like Madoff's vital as precedent. In November 2010, Picard created the first "e-discovery room", but the new "eData room" would be a much bigger project, containing all the ESI related in any way to Madoff's Ponzi scheme and making it available through a web-based platform for access and review. This new eData room, proposed in January 2011, would be limited to roughly 100,000 potentially responsive documents from 77 parties associated with a related case in which the defendant (J. Ezra Merkin) demanded production of every subpoenaed document in the initial bankruptcy proceeding as well as depositions in other proceedings.

The prospect of this eData room necessitates a complex series of discovery requests and confidentiality agreements, but Irving has already secured the tacit approval of all but 15 of the 16,000 parties, (large financial institutions, including UBS, Bank of America, Merrill Lynch International, Bank of New York Mellon and Sterling Equities, the investment group chaired by New York Mets owner Fred Wilpon) who objected to the prospect of pooling confidential documents where they could be accessed by thousands of parties including their business competitors. To address those concerns, Picard submitted a revised proposed order in September to exclude certain types of documents as confidential and give producing parties 60 days to object to the inclusion of “highly sensitive commercial information” in the eData room.  It will be interesting to see if the revisions pave the way for full acceptance to implement the eData room.

So, what do you think? Are eData rooms going to become commonplace in complex cases involving eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

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

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

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

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

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

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