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Insourcing Vs. Outsourcing Your eDiscovery Review Process

While eDiscovery may seem a tedious process, it’s critically important to your courtroom success!  A ruling may be made solely on the content found in one corporate executive’s email.   The requisite rests in the confidence of a trusted system to collect and review relevant documents so both sides can build their case. 

However, when it comes to processing the data collection, many organizations differ on the best method for eDiscovery. 

Whether you decide to insource or outsource your eDiscovery, CloudNine Review is made can assist you in closing cases quickly. 

Discovering The Differences Between Insourcing and Outsourcing eDiscovery

Insourcing is defined as the delegation of operations or tasks within an organization to an internal unit. This refers to both the technology and the people performing the tasks. 

Outsourcing is when you transfer the day-to-day responsibility of those tasks outside your organization to an external service provider. This external service provider provides both the technology and the personnel required to perform the tasks. 

Depending on your organization’s core competencies and business model, insourcing may not be the best choice to handle your eDiscovery tasks. For example, law firms do not focus on providing technology solutions to their clients, so it may be difficult to justify the financial commitment of building an entire infrastructure and hiring a technology team.

However, many organizations may still prefer to insource their eDiscovery. Ten years ago, cloud services were still in their infancy so insourcing was the only real option. While small and mid-sized organizations struggled, larger firms invested in the infrastructure needed to win their cases.

Today, those with the infrastructure still in place choose to contain insourcing because it’s already paid off, which means no additional hosting or processing fees. But for new organizations just getting on their feet, investing in eDiscovery infrastructure may be a costly risk.  Maintaining infrastructure is costly for organizations with internal eDiscovery resources as well.  A cloud-based solution reduces the cost burden for new and established organizations seeking eDiscovery solutions.

How Insourcing and Outsourcing eDiscovery Affects Your ROI

For firms that insource their eDiscovery review, there’s a huge investment of money and time into making an eDiscovery environment a viable solution, such as:

  • Infrastructure Development
  • System Maintenance
  • IT Support Staff
  • Review Attorneys

When you outsource your eDiscovery process, you only pay on a per-project basis.

When you insource your eDiscovery process, you are paying to keep your infrastructure running and up-to-date on the latest technologies, which will require maintenance and labor. With ransomware hackers running rampant, labor shortages from COVID-19, and necessary system upgrades to keep your network from crashing, costs can become erratic and drastically change from month to month. 

Outsourcing makes it easier for your law firm to control costs since you are only concerned with paying for what you need when the cases come along.

The success of your eDiscovery review process lies in your ability to recover costs quickly, learn how to optimize your cost recovery in our eBook, which you can download here.

Are the Benefits of Insourcing Worth the Cost?

When it comes down to it, there’s really only one primary benefit to insourcing your eDiscovery review. It gives you complete and total control over your data processing. You do not have to worry about where your data is being stored or if you can access it on your schedule. It’s on-prem and ready whenever you need it. 

Let’s consider insourcing from a financial standpoint. If you want to develop your own insourced eDiscovery solution, this is what you’re looking at: 

  • The profit margins for hosting and processing fees have eroded significantly in the past 10 years. It used to cost $500 to process a single gigabyte of data. Today, it’s only around $30.
  • You will probably have to develop a custom piece of software or build a new hosting platform, which means you will need to hire at least one developer if you don’t have one on the payroll already. And according to Glassdoor, the average salary for a software developer is around $108,000 a year. This doesn’t include the additional burdens on IT to keep the system up-to-date and secure.
  • Of course, you could hire a software development company to develop new software or hosting platform but that won’t be cheap, either. It’ll be somewhere in the range of $50K and $250K. 
  • And don’t forget about the legal team you’ll need to assemble to do the actual eDiscovery review. 

Overall, you’re looking at a hefty investment. There may not  be enough financial incentive to justify spending the money to develop your own internal infrastructure. 

An Outsourced eDiscovery Solution That Makes Financial Sense

CloudNine Review offers outsourcing eDiscovery solutions that are fast, easy to use, and, most important, cost-efficient. Simply upload your documents and begin the review process in minutes, earning yourself an impressive ROI with these benefits:

  • Unlimited Users: Unlike other eDiscovery providers, we don’t charge you for every single user you add to the database. It’s a flat fee, allowing you the freedom to add as many users as you need.
  • Flexible Infrastructure: Our network is designed to handle hard-working organizations like yours. Our infrastructure can support a thousand attorneys reviewing the same data collection simultaneously. If you wanted to do that in-house, you’d be investing a lot of time and money to spin up the additional infrastructure to handle it. 
  • No Long-Term Contracts: Just pay for your eDiscovery services at a month-to-month rate. No hidden agendas or commitments. 

There’s also no difference in the quality or legality of documents collected and reviewed, as the processes are the same. The only difference is who did the work – an in-house group or a trusted provider like CloudNine. 

If you’re ready to hand over your internal eDiscovery tasks to a dedicated company that specializes in streamlining your discovery, investigation, and audit processes, reach out to CloudNine and request a free demo today.

Five Features to Look for in an eDiscovery Review Solution

When considering which legal document review platform to implement, there are many features and functions to take into consideration, in addition to key stakeholders’ opinions. Commonly, the biggest challenges encountered during eDiscovery review include unpredictable pricing and poor training support.

As the cost of document review can range from $10,000 to upwards of $1 million in annual fees, it’s critical to select an experienced vendor with demonstrated strengths in performance abilities including:

  1. Speed
  2. Real-Time Tracking
  3. Support & Training
  4. Flexibility
  5. Return on Investment

Before you choose your next eDiscovery review solution, consider five advantages of CloudNine Review to help your law firm operate more efficiently.

Ready to see our five prerequisites for an efficient eDiscovery review process in action? Book a CloudNine Review demo today.

Legal Document Review Made Possible with Expedited Processing

The faster your eDiscovery solution, the quicker you’ll understand the case.   Knowing the facts before the other side can have a huge benefit, especially on your initial discovery call or at a deposition. In addition, eDiscovery speed can help you:

  • Reduce your spending
  • File faster 
  • Settle sooner

CloudNine Review provides the type of speed to change an entire case strategy by shortening the path to critical case data. 

As a self-service, on-demand application, CloudNine Review let’s you start your project any time, any where. With remote document review, you can even use your smartphone or tablet, with a simple, easy-to-use interface.  The result enables you to accelerate your timeline, review documents on the fly, and control basic or complex productions. 

Real-Time Tracking Is Pivotal For eDiscovery Firms

By determining the number of documents you process every hour, you can project your potential spend for the case and staff up or down, depending on your specific needs at the time. You can also establish a timeline and the confidence to hit important critical dates. Real-time tracking is a critical function of the review process allowing you to track progress and manage your budget accurately throughout.

By tracking changes in real-time, CloudNine Review displays updates as they occur so everyone sees the change immediately. If you’re worried about users overriding each other, don’t be. With full auditing on both the document level and system level, you’ll know who made the last changes and if it’s part of a pattern. 

And, with visibility to track individual users, you’ll gain insights to how your team is using Review.  For example, if a specific user is tagging documents incorrectly, you can turn the data into a coaching moment so your team knows what they’re looking for and how to process it. 

Support & Training: Providing eDiscovery Teams the Support They Need

We know how frustrating it can be to operate a software solution without support or training.   For this reason, CloudNine Review offers both Self-Service and Self-Service Plus to our clients.

With our Self-Service model, you have access to a service resource to lend aid if you are stuck.

The Self-Service Plus model allows you to leverage our entire services team and the hands-on support to load, review and prepare your data for production. 

CloudNine also provides both live and on-demand training which includes video tutorials. With the live training, you have access to both user and admin training courses. With a concentrated course outline, our average user training usually lasts 30-60 minutes so you’ll be able to get started on your first case in no time. For users with previous experience in review applications, you may not even need to go through our full training before you’re able to get to work. 

With your eDiscovery team trained and ready, you are one step closer to optimizing your eDiscovery cost recovery. Discover how you can create a more profitable review process in our eBook: Optimize eDiscovery Cost Recovery.

Flexibility With A Cloud-Based eDiscovery Software — Built With Your Team In Mind

CloudNine offers a uniquely flexible solution to help you take advantage of both cloud-based processing and on-prem storage. This flexibility is helpful when litigation is paused or delayed.  And, since costs to store data in the cloud can get expensive for both your firm and clients, you can move your data to on-prem storage thereby removing the potential for high hosting fees charged by other cloud-based eDiscovery software solutions. 

Reviewing large datasets can be tough when you don’t have an easy way to break them down. Custom batching can help you break large datasets into smaller and more manageable batches you can then assign to your team. This helps you get through the documents faster and prevents documents from being reviewed by multiple users. 

Advanced reporting also helps you be more efficient by tracking user progress including monitoring the average documents reviewed per hour. If the average is 75 with only one person reviewing 250 documents an hour, this indicates an area for improvement.  A quick investigation might reveal their dataset included an excessive amount of logo files or they may not fully comprehend their task and need more specific instructions. 

eDiscovery Review Software Providing the ROI You Need

It’s important to remember no matter what you do, your law firm is still a business and it needs to be run in an efficient and effective manner.

CloudNine offers an all-inclusive subscription with everything you need for a successful eDiscovery review.

  • Data Processing
  • Data Filtering
  • User-Friendly Interface
  • Review Sets
  • Customer Batching
  • Data Storage
  • Technical Support
  • Certified Training

However, we recognize there are times your caseload might not fit into our traditional model. That’s why we offer a flexible pricing model to help when you have longer-duration cases with heavier upfront work. To determine which pricing model works best for you, there are three things we consider:

  • The expected level of filtering
  • Duration of the case
  • Number of documents expected for review

While some cases require a review of every single document, others only pull documents filtered through a very specific targeted term. Knowing which helps us guide you to the right pricing plan. 

When choosing the eDiscovery review solution that best suits your needs, remember that CloudNine Review always delivers speedy processing, real-time tracking, support, training, flexibility, and return on investment. 

If you’re ready to see how it can help you, request a free demo today.

What Happened in Vegas? It’s No Secret – Read the Buzz

With many reasons to celebrate, CloudNine is still enjoying the excitement of our time Vegas last week. Visiting with valued customers and meeting new contacts are always fortunate opportunities. As an enhancement to those already fruitful conversations, we were thrilled to announce our expanded capabilities through the acquisition of ESI Analyst. Adding modern communication formats such as mobile, chat, social media and more to CloudNine’s powerful and proven applications, fills the market need to manage eDiscovery more effectively, with both modern and traditional data types, on a single platform.

The buzz of our expansion reached the news feeds across multiple social media channels.  A few highlights include:


 

Demonstrations are being scheduled now to debut CloudNine’s new technology – click to request a time to speak and a member of our team will be in touch to schedule.

 

Ready to try it out for yourself?  Request a free demo and see how CloudNine can help you.

Focusing on speed, security, simplicity, and services, CloudNine is dedicated to empowering our law firm and LSP clients with proven eDiscovery software solutions for litigation, investigations, and audits. 

Release Preview LAW 7.6

As data volumes grow, fortunately so has computer processing power.  CloudNine LAW and Explore 7.6 will take advantage of this power boost to amplify your speed to review and production.  The import technology behind both LAW’s Turbo Import and Explore uses a computer’s multiple processing cores more efficiently, making processing faster.

The application updates will include over 200 enhancements to build upon the already strong, import speeds of LAW and Explore.  The most notable improvement in LAW will be the introduction of a Turbo Imaging that can be used in parallel with existing imaging.  Turbo leverages near-native imaging technology to create static images of native files without relying on the native application.  This saves time while imaging, because the files don’t have to be opened, printed to image, and then closed.  The module can also take advantage of multiple processing cores, if available.  With imaging speeds up to eight times faster than the traditional imaging license, Turbo Imaging generates production-ready images quickly and easily.

In Explore, users will benefit from improved reporting capabilities.  This builds on Explore’s email threading, near duplicate detection, advanced filtering and integration with Relativity to provide a first-class, early case assessment experience, allowing clients to reduce the volume of data promoted for review by as much as 70%.  The import and ECA processes are all done without creating additional copies of the data until the client is ready to commit an export of potentially responsive content for further review.  This saves clients from storing copies of data that they don’t need, reducing cost and risk associated with managing multiple identical files.

To learn more about these and other enhancements coming in CloudNine LAW and Explore 7.6, please reach out to your account manager, or email us at info@cloudnine.com to schedule an overview and demonstration.  We’re excited to give you a preview of these updates and plan a wider release in the week of September 13th, 2021.

 

Focusing on speed, security, simplicity, and services, CloudNine is dedicated to empowering our law firm and LSP clients with proven eDiscovery software solutions for litigation, investigations, and audits. 

Ready to try it out for yourself?  Request a free demo and see how CloudNine can help you.

Answer the Unknown Challenges of eDiscovery Review

When it comes to document review in electronic discovery, choosing a solution can be a daunting task. To make an informed decision, you need to know what challenges await you and how to overcome them. 

The three biggest challenges to address when looking for a document review platform are:

  • Security
  • Volume 
  • Cost

By better understanding these challenges and their impact on your operations and bottom line, you’ll be in a better position to choose the best eDiscovery software solution for your business.

Is My eDiscovery Data Safe and Protected?

The benefits of storing eDiscovery data in the cloud are many but, digital security and remote access top the list of concerns among legal teams and legal service providers (LSPs) for these reasons:

  • Lack of control over their data
  • Concerns about handing data over to a third party
  • Worried about their data integrity

Utilizing a company dependent on public cloud solutions like Azure or AWS, means you can’t specifically tell your client where your data actually is as it can be stored across multiple cloud locations.

Another topic, more relevant since the COVID-19 pandemic, is security for remote document review. Creating additional access points can cause worry about your network being vulnerable to data breaches.

Can My eDiscovery Software Handle the Volume and Variety of Records?

Investigations and litigation can create a lot of digital records, often soaring into the terabytes. This is compounded by the variety of digital records being used as evidence in legal proceedings, including:

  • Emails
  • Instant messages
  • Digital images
  • Videos
  • Audio files
  • Text messages
  • Social media posts
  • Websites

This volume and variety of data can have a detrimental impact on your operation if you don’t have the digital space to process or store it all. 

The more documents you have, the more infrastructure you need to support it. This can compromise your software performance which could affect your ability to navigate, search, report, export, or produce required information, in a timely manner.

If that happens, new eDiscovery projects could be delayed or canceled outright while you complete your current project. Delays could also lead to missed deadlines which could cause your clients to be sanctioned or fined by the courts.

Are eDiscovery Tools Cost-Effective?

Simply put, some eDiscovery software can be expensive. Many include a lot of features and functionality you may not even need but, you are charged generously for it. 

When looking for an eDiscovery solution, it is important to take the following into consideration in order to get the most cost-effective solution:

  • Is the pricing flexible, allowing you to pay only for what you need?
  • How much archived data is stored on the cloud vs. on-prem? Often a hybrid solution will provide you with the most cost savings. 
  • What support is included within your contract? In order to reap the most cost-saving benefits, it’s important to have your team well-versed in the eDiscovery tool.

The eDiscovery Solution – CloudNine Review

Secure, powerful, and cost-effective, CloudNine Review simplifies eDiscovery enabling you to upload documents quickly and to begin reviewing data within minutes. 

CloudNine Review utilizes a private cloud environment so you know where your data is at all times, giving you better audit controls and the assurance your data is intact. To protect client data, CloudNine cybersecurity safeguards are always up-to-date and constantly monitored.

Another safeguard to protect your data on the CloudNine platform are access controls allowing only authorized staff to review specific documents:

  • User-based permissions
  • Project-based rights
  • Document-level rights

By utilizing our private cloud platform, you have access to all of your data anywhere, anytime, without having to log into your network VPN. 

Also, CloudNine Review carries greater bandwidth so you’re able to get your data much faster. As an example, the first day for a new project can look like this:

  • Registered online and began uploading data
  • Uploaded 27 GB of PST email files
  • Processed 300,000 documents (emails and attachments)
  • A reduced document set by 61% with deduplication and irrelevant domain filtering

Imagine being able to accomplish all of that in just the first 24 hours.

The best part is you get what you pay for. CloudNine’s transparent pricing model includes multiple pricing methodologies so you’re never caught off-guard.

Beginning with a predictable upfront cost and low storage fees, CloudNine pricing models are designed to keep your costs down while providing the essential services you need.  To learn about our flexible pricing options, click here to speak to one of our eDiscovery experts.

  • All-in Model – one ‘all-in’ price with no hourly rates for self-service
  • Flex Model – low monthly storage costs for long-running litigation

Plus, you only pay for what you use if your case ends or becomes dormant. Older, dormant case data can be archived and saved at your own location using CloudNine Concordance to help you keep costs low and your data safely archived for the future.

Focusing on speed, security, simplicity, and services, CloudNine is dedicated to empowering our law firm and LSP clients with proven eDiscovery software solutions for litigation, investigations, and audits.

Ready to try it out for yourself? Request a free demo and see how CloudNine can help you.

Export Review Documents Using Self-Serve Productions

#DidYouKnow: You can export your own documents for production from CloudNine Review, with or without support from the CloudNine Client Services team?

 

Document production sizes can range from one document to tens or even hundreds of thousands of documents.

Some platforms require legal teams to work with their project managers to coordinate productions, regardless of size or complexity. This can lead to delays and risk as instructions are handed off to teams, unfamiliar with the case.

 

Self-service productions provide complete project control with 24×7 access to export case documents independently.

  • Control your data to ensure important, relevant documents are not missed.
  • Control your project cost by paying only for what you need and, nothing you don’t.

CloudNine Review empowers clients to export documents themselves, including native files and emails, searchable text, and static images of documents containing confidential language, unique identifiers, and redactions.

Ready to Get Started with Self-Service Productions?  

To start a self-service production in CloudNine Review, select the Tools menu in the upper right corner then, click the Self-Service Production option.

Next, select whether you would like to produce images, native files, text, and metadata, or any combination of these.

If your documents do not yet have static images, they can be created during this process.  Annotations and redactions can be permanently applied to images, and there are several Excel imaging options, including using slip sheets instead of generating images.

The fielded metadata associated with the production records can be exported in a variety of formats including the common .DAT file, a .CSV file, or XML.

Users running a production can select and deselect fields to include in the production metadata file.

View Productions As They Progress in the User-facing Dashboard:   

This screen also allows users to clean up old productions and exports they no longer need to access.

Stay informed of software updates and browse training documentation in the CloudNine Review Knowledgebase (login required).

To learn more about CloudNine Review and Self-Service Productions, click the button below to schedule a demo!

Results of the Microsoft Office 365 eDiscovery Challenge Survey: eDiscovery Trends

Remember the Microsoft Office 365 eDiscovery Challenge Survey that Tom O’Connor and Don Swanson were conducting?  The results are in!

The results were published on Bob Ambrogi’s LawSites blog last week.  The survey was conducted over seven weeks using both an online SurveyMonkey tool and telephone interviews. Tom and Don received a total of 75 survey responses from corporations, government agencies and law firms, with the estimated breakdown of respondents mostly being from corporate legal (69 percent of the total respondents).  Law firms were a distant second at 20 percent, followed by government respondents at 10 percent.  Vendors constituted just 1 percent of the responses.  1 percent!

Of all respondents, approximately 30 percent were attorneys. The remainder were litigation support professionals, paralegals and IT staff.

As for the questions, here are some notable results:

What was your first reaction to Microsoft offering eDiscovery features within Office 365?: Nearly two-thirds of respondents said their initial reaction was either very positive and promising (37 percent), or somewhat positive (29 percent).  Thirteen percent of respondents did not know that O365 offered eDiscovery functionality.

Does your organization run Microsoft Office 365? Version?: Just over 3/4 of respondents said they were running O365, with version E3 (G3) the leader at 32 percent.  22 percent did not know what version they use.  Only 7 percent had no plans to move to O365.

Which EDRM activities can be/have been performed within Office 365 eDiscovery? (check all that apply): Generally, the phases on the left side of the EDRM model were considered to be the most likely to be performed within O365, with Preservation the leader at 73 percent, closely followed by Identification at 72 percent.  However, only 46 percent and 41 percent of respondents (respectively) had actually used it in those phases.  40 percent of respondents had never used any of O365’s eDiscovery capabilities.

Are Microsoft Office 365’s eDiscovery features helpful?: Over 4 out of 5 respondents indicated that they would definitely need (53 percent) or probably need (29 percent) O365’s eDiscovery capabilities.  Only two percent of respondents indicated that they probably don’t need or definitely don’t need O365’s eDiscovery capabilities (1 percent each).

Click here for a complete set of results on Bob’s blog.  In early 2019, Tom and Don will be publishing their findings and observations.

So, what do you think?  Are you surprised by any of the finding?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Here’s Another Survey to Check Out on the eDiscovery Uses and Capabilities of Office 365: eDiscovery Best Practices

A survey a day keeps the…blog posts written!  Yesterday, we covered the survey on Rob Robinson’s Complex Discovery site regarding predictive coding technologies and protocols.  Today, here is another survey worth participating in regarding the use of Microsoft Office 365’s eDiscovery capabilities.

On his Techno Gumbo blog, my colleague Tom O’Connor poses the question: Can eDiscovery Really Be Done Within Microsoft Office 365? Help Us Find Out. (Okay, that’s a question and a statement, but anyway…)

Tom is working with Don Swanson, president of Five Star Legal, to find out just how many firms out there are actually using Office 365 for eDiscovery. Most people know Office 365 as a software-as-a-service (SaaS) offering of email, word processing, spreadsheet and presentation applications. Office 365 and the Microsoft Cloud are not only used by most of the Fortune 500, it’s also used by many federal, state and local governments and educational institutions – and a growing number of businesses of any size.  To that end, they have come up with the O365 Challenge, a successor to the 2009 EDna Challenge posed by noted eDiscovery thought leader Craig Ball (which he reprised in 2016) and Tom’s 2011 follow up to that, the Ernie Challenge.

Like EDna and Ernie, the matter in question still has a budget restriction but all relevant data now resides within Microsoft Office 365.  Tom and Don really want to know if Office 365’s eDiscovery capabilities are for real, whether litigants can achieve the goals outlined in EDna and Ernie within Office 365 and whether big case eDiscovery processes can be handled within Office 365 on a small budget.

As with any good challenge, Tom provides on his blog the hypothetical scenario and describes the challenge, which includes several goals identified by the company general counsel noted in the hypothetical.  Then, Tom and Don have built a survey which asks about eDiscovery capabilities in Office 365, including each of the phases of the EDRM model.

Tom provides a link to the five-question survey in the post in SurveyMonkey (check the post link above to get it) and survey responses submitted before October 15 will be included in the white paper detailing the Microsoft Office 365 Challenge findings which Don and Tom will publish sometime in Q4.  You can also just send your comments directly to Don or Tom to include them in the final report.

While more and more organizations are using Office 365, I’m not sure they are fully using the eDiscovery capabilities of it, nor am I sure that they are finding those capabilities sufficient to accomplish what they need to accomplish to meet their eDiscovery burdens and goals.  I’ll be looking forward to the white paper to see what people have to say about it.

P.S.: For more about Tom and his latest video with Craig regarding Forensic Examination Protocol, click here.

So, what do you think?  Does your organization use Office 365?  If so, does it use its eDiscovery capabilities and find them useful?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Microsoft Corporation

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Court Declines to Compel Defendant to Produce Direct Messages Between its Employees: eDiscovery Case Week

eDiscovery Case Week is here!  We got a head start on it by catching up on a case on Friday, leading up to our webcast on Wednesday where Tom O’Connor and I will be talking about key eDiscovery case law for the first half of 2018.  With that in mind, let’s discuss a key case regarding custody and control by Twitter of the direct messages of its employees.

In Shenwick v. Twitter, Inc., No. 16-cv-05314-JST (SK) (N.D. Cal. Feb. 7, 2018), California Magistrate Judge Sallie Kim ruled on several discovery disputes between the parties, including denial of a request by the plaintiffs to order the defendants to produce protected direct messages of individual custodians who are not parties.

In this securities class action on behalf of all persons who purchased or otherwise acquired common stock of the defendant, there were six issues in dispute.  One key dispute involved a request from the plaintiffs that the defendants search Twitter private direct messages that each custodian sent and received.  The defendants had agreed to provide direct messages for individual defendants Anthony Noto and Richard Costolo only (who had consented to their production). The defendants argued that the Stored Communications Act prevents the disclosure of direct messages from anyone other than a named individual defendant.

In agreeing with the defendants, Judge Kim stated:

“’The Stored Communications Act prevents ‘providers’ of communication services from divulging private communications to certain entities and individuals… Courts have held that the Stored Communications Act prevents a court from enforcing a subpoena issued to a third party ECS or RCS for the protected information.’ Crispin v. Christina (sic) Audigier, Inc., 717 F.Supp.2d 965, 971-72 (C.D. Cal. 2010)… Plaintiffs are correct that a court can compel a party to produce information within the party’s custody and control, but they confuse the identity of the party with the identity of the individual custodians. Here, for purposes of analysis, the Court will treat Twitter as if it is separate from the individual custodians who have direct messages stored with Twitter. The individual custodians other than Costolo and Noto are not parties. In other words, because Defendants claim, without opposition, that Twitter did not require its employees to use direct messages for communications, the Court must evaluate Twitter separately from the individual custodians who have privacy rights protected by the Stored Communications Act. The two named individual defendants, Costolo and Noto, are allowing discovery of their direct messages, as Plaintiffs can issue to them requests for information pursuant to Rule 34 and obtain their direct messages… Plaintiffs merge Twitter and its individual custodians’ rights. They are not the same. If Plaintiffs issued a third party subpoena to a company—not Twitter—for direct messages that the individual custodians sent and received, there is no question that the Court could not enforce such a subpoena. Under the same reasoning, the Court cannot compel Twitter, a party in this litigation, to produce protected direct messages of individual custodians who are not parties simply because Twitter is also the provider of the direct messaging service.”

Ruling on other disputes, Judge Kim: 1) ordered the defendants to search the files of an additional custodian, Jack Dorsey, co-founder of Twitter and former CEO; 2) denying without prejudice the plaintiff’s request that the defendants produce documents from Falquora, Twitter’s internal message board; 3) ordered the defendants to produce documents in unredacted form that were covered by a stipulated Protective Order; 4) denying the plaintiff’s motion to compel documents containing terms “DAU” (daily active users) and “MAU” (monthly active users) WITHOUT PREJUDICE as potentially overbroad (allowing the plaintiffs to re-file the motion with a more specific, targeted approach if they are concerned the other requests for production are not yielding relevant documentation); 5) that the search “engag*” be conducted for documents with that term within 10 words of 20 terms proposed by defendants and up to 10 additional terms proposed by plaintiffs; and 6) denying WITHOUT PREJUDICE the plaintiff’s motion to compel the defendants to produce documents concerning Defendants’ efforts to “maintain, search for and preserve all documents” (which the defendants deemed to be privileged).

Despite the six issues being ruled on, Judge Kim stated “it is clear that the parties have worked hard in meeting and conferring to narrow the issues of dispute. The Court commends the parties for doing so and for presenting the remaining issues for dispute in a clear and cogent matter. The Court is confident that the parties will continue to meet and confer in good faith, narrow the areas of their dispute, and only present to the Court matters which they cannot resolve and which are significant.”

So, what do you think?  Should the direct messages of Twitter employees have been ruled out of the custody and control of Twitter?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Public or Private Isn’t the Only Question You Should be Asking about Cloud Solutions: eDiscovery Best Practices

In yesterday’s post detailing the discussion of industry experts regarding the adoption of cloud technology within the legal industry, several points of discussion were discussed, including the differentiation between “public cloud” and “private cloud”.  It’s important to know the difference between the two implementations and why you might consider selecting one over the other (and what you need regardless of which one you select).  But, public or private cloud isn’t the only question you should be asking about a cloud solution.

To begin to understand what we’re talking about, it’s important to define three terms typically related to cloud computing: Infrastructure as a Service (IaaS), Platform as a Service (PaaS) and Software as a Service (SaaS):

  • Infrastructure as a Service (IaaS) is a service model that delivers computer infrastructure on an outsourced basis to support enterprise operations. Typically, IaaS provides hardware, storage, servers and data center space or network components.
  • Platform as a service (PaaS) is a category of cloud computing services that provides a platform allowing customers to develop, run, and manage web applications without the complexity of building and maintaining the infrastructure typically associated with developing and launching an app.
  • Software as a service (SaaS) is a software distribution model in which a third-party provider hosts applications and makes them available to customers over the Internet.

This diagram, courtesy of the site virtualclouds.in, does a good job of illustrating examples of each.

As you can see, the software application residing on top of the cloud platform and infrastructure are separate and unique and don’t necessarily have to be from the same provider.  Sometimes they are, like in the case of Office 365 hosted in the Microsoft Azure platform; other times they aren’t, like in the case of Salesforce.com hosted in Amazon Web Services (AWS).

Here’s another diagram, courtesy of YourDailyTech, which illustrates the different components to the solution and what you manage in a) an on-premise implementation, b) an IaaS implementation, c) a PaaS implementation and d) a SaaS implementation.

As you can see, there’s a lot of components to manage.  A lot of organizations are managing many (if not all) of those components anyway to support various internal needs for their organizations, but many organizations are turning to IaaS, PaaS and SaaS implementations for at least some of their solution choices.  The choices they make are based on several factors, including costs and security requirements.  There’s no right or wrong answer here – each choice can be appropriate depending on the organization and its needs.

However, you know the saying that a chain is only as strong as its weakest link?  Well, that holds true for cloud solutions as well.  Whether you favor a public cloud or a private cloud approach, you still have to vet the software provider on top of that public or private cloud infrastructure.  Obviously, when evaluating comparable software solutions, it goes without saying (but I’ll say it anyway) that you should look at the features of the different solution choices and evaluate them against the needs of your organization.

But, you shouldn’t stop there.  You also want to evaluate the companies offering the different solution choices as well.  How long has each company been in business?  What’s the average tenure of their top leadership team?  What’s the average tenure of their support and services teams?  You don’t want to select a “fly-by-night” company that could be gone tomorrow or a company that has a “revolving door” in key positions where you’re continually dealing with someone new in support or services.  Familiarity breeds…comfort – not contempt (at least when it comes to a cloud SaaS provider).

So, what do you think?  How closely do you vet the SaaS company providing the solution in a cloud solution selection?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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