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State eDiscovery Rules

EDRM Announces Five New Projects: eDiscovery Best Practices

Did anybody doubt that EDRM under the leadership of Mary Mack and Kaylee Walstad was going to be doing BIG things?  If you did doubt it, here’s an announcement that signals that EDRM will be busy creating and improving frameworks, resources and standards within the eDiscovery community.

Last week, EDRM announced five new projects and is seeking new contributors for them.  They are:

Data Sets: This new project is being championed by Cash Butler, founder of Clarilegal, and is seeking project participants. “Everyone still tests and demonstrates with the very old and familiar data set that is comprised primarily of Enron email and attachment data,” claims Cash Butler. “A new modern data set needs to be created that is focused on modern data types as well as email. Slack, Snapchat, Instagram, text messaging, GPS and many other data types that are needed for testing and demonstrating how they process and present in a useful way. In addition, to creating the new data set we will also look to form a framework for community members to easily add, curate and update the data set to stay current.”

One word: Hallelujah!  We’ve needed new up-to-date data sets for years to replace the old Enron set, so I’m hopeful this team will make it happen.

Processing Specifications: John Tredennick, founder of Merlin Legal Open Source Foundation is championing this project with the help of co-trustees Craig Ball, president, Craig D. Ball P.C. (who recently created a processing primer) and Jeffrey Wolff, director of eDiscovery services and principal architect, ZyLAB. The Processing Specifications project will run in parallel with the Merlin Foundation’s programming project for processing.

Data Mapping: Eoghan Kenny, associate, senior manager data projects and Rachel McAdams (no, not her), data projects, at A & L Goodbody, Ireland are championing this project, which the need has arisen due to the new SEAR Act (senior executive accountability regime) to help provide frameworks around who is responsible for what data and where it resides. “The importance of data mapping has grown enormously in Europe – not just for GDPR and investigation purposes, but also to help organizations deal with the increasingly active regulatory environment,” says Kenny. “However, most of our clients struggle with data mapping as it is a new concept to most organizations, with no clear business owner, that often sits in limbo between the “business” and “IT”! The goals of this project are to build frameworks for data mapping exercises, and provide clear guidelines on what the process should look like, because the better an organization understands its data, the cheaper it is to comply with any discovery or investigation obligations.”

State eDiscovery Rules: Suzanne Clark, discovery counsel at eDiscovery CoCounsel and Janice Yates, senior e-discovery consultant at Prism Litigation are co-championing this project and how the State Rules relate to the eDiscovery Federal rules in place. The vision for the State eDiscovery Rules project is to provide a starting point for attorneys to quickly reference the rules in different states and compare and contrast to the federal rules with the various state rules relating to eDiscovery. For example, if an attorney is involved with a case in a state where they are not accustomed to practicing, this EDRM resource will allow them to quickly get up to speed on that state’s rules, where they differ and where they align with the federal rules. “The project work happening at the EDRM is impressive,” says Suzanne Clark. “The time and talent that the project leads and participants donate to the cause of advancing eDiscovery knowledge and good practices will surely serve to advance the industry and legal practice in the discovery realm.”  The project will start with Florida and Michigan and are looking for more contributors from other states.

I look forward to this as we need an up to date resource here – I’m not sure that the ones I’ve covered in the past are being actively updated.

Pro Bono: This project was just launched and has had an overwhelming reach out from people in every area, attorneys, paralegals (and associations), litigation support professional, service providers, platforms, corporations and those in need. We are still seeking assistance as the need for access to justice is great. Stewarded by BDO director, George Socha and HB Gordon, eDiscovery manager for the Vanguard Group, the Pro Bono project will create subgroups to accelerate providing eDiscovery services to those in need.

As the announcement notes, projects, both ongoing and newly initiated, will be advanced at the EDRM Summit/Workshop 2020 at Duke University School of Law, June 24-26. I’ll have more to say about that as we get closer to it, but it certainly sounds like it will be very busy!  I’m certainly planning to be there!

So, what do you think?  Are you interested in participating in EDRM?  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.

Top Ten Tips for Working with eDiscovery: eDiscovery Best Practices

I stumbled across a post in our blog that Tom O’Connor did over a year ago to conclude his series titled Will Lawyers Ever Embrace Technology?  As usual, Tom did a great job and, in this post, he offered his top ten tips for working with eDiscovery.  Tom provided a top ten list terrific enough to make David Letterman proud, but I thought the list could use some additions – in the form of links to resources for the items.  Here goes!

As a reminder, here are the top ten tips from Tom’s post:

  1. Read the Rules
  2. Read the Decisions
  3. Know the Terms
  4. Know Where Your Data Is
  5. Talk to The IT Department
  6. Talk to The Records Management People
  7. Make a Records Management Policy
  8. Make A Litigation Hold Policy
  9. Enforce the Litigation Hold Policy
  10. Meet with Your Client’s Inside Counsel

Let’s take them one (or sometimes two) at a time.

Read the Rules: As Tom notes, the Federal Rules of Civil Procedure (FRCP) lay out the framework for your obligations in handling eDiscovery, but many states have rules that may differ from the FRCP.  Not only that, but the FRCP is comprised of a lot of rules which don’t necessarily have to do with eDiscovery.  So, which ones do you need to know?  There are two notable Rules updates that have significant eDiscovery impact: the 2006 and 2015 updates.  Fortunately, we covered them both in our webcast titled What Every Attorney Should Know About eDiscovery in 2017, which (as you can tell by the title) is three years old now (but still relevant for this topic).  You can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.  As for states rules, K&L Gates has a listing of states that have enacted eDiscovery rules (not all of them have), so you can check your state (and other states) here.

Read the Decisions: To find decisions related to eDiscovery, you can find plenty of those right here on the eDiscovery Daily blog – for free!  We’re up to 734 lifetime case law related posts, covering 566 unique cases since our inception back in 2010.  You can see them all here or wind them down year by year here.  If you want even more decisions (1,500 to 2,000 a year, not to mention other terrific resources), you can find those at our go to site for case law – eDiscovery Assistant.

Know the Terms: Tom notes in his post the importance of knowing the terms and even provides a terrific resource – The Sedona Conference – for a great terms list, which was just updated and we covered it and how to get it here!

Know Where Your Data Is: When it comes to knowing where your data is, a data map comes in really handy.  And, with GDPR and other factors emphasizing data privacy, that’s more important than ever.  Here are several templates to get started.

Talk to The IT Department: Tom says “You’re Lewis and Clark, they’re Sacajawea. You cannot…absolutely cannot…navigate without them.”  Knowing the terms and understanding data maps (see previous two paragraphs) will help bridge the communication gap and help here too.

Talk to the Records Management People and Make a Records Management Policy: Records Management is a term that has been around for a long time.  A more recent term that has become synonymous is Information Governance.  eDiscovery Daily has over 200 posts related to Information Governance, including this seven blog post series from Tom here.  Enjoy!

Make A Litigation Hold Policy and Enforce the Litigation Hold Policy: We’ve covered the topic of litigation holds several times as well during the almost 9 1/2 years of the blog, including these two posts (recently updated) where we discuss several things you need to consider when implementing your own litigation hold.

Meet with Your Client’s Inside Counsel: With all of the info you learned above, you’re well equipped to (as Tom puts it) “discuss all of the above”.  One more thing that can help is understanding topics that can be covered during the meet and confer that will benefit both you and your client.  Here’s a webcast that will help – again, you can click on the webcast to get access to the slides (via the attachments link) if you don’t want to sit through the hour-long webcast.

One more thing that Tom notes in his post is that “eDiscovery is a process comprised of separate distinct stages, any one of which may have specific software available for that stage” and that’s very true.  Certainly, that’s true at CloudNine, where, in addition to our Review product mentioned above, we also have a product that collects data from O365 and One Drive (CloudNine Collection Manager™), an Early Data Assessment platform (CloudNine Explore™), a processing and production platform known as the “swiss-army knife of eDiscovery” (CloudNine LAW™) and a tried and true desktop review platform (CloudNine Concordance®).  There are as many workflows as there are organizations conducting eDiscovery and getting the most out of software products available from CloudNine or other providers to maximize your own workflow is key to succeeding at eDiscovery.  Work with your software provider (whoever they are) to enable them to help maximize your workflow.  Help us help you!  :o)

So, what do you think?  Are you familiar with all of these resources?  If not, now you can be!  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.

M&M Are Looking to Update Their eDiscovery Rules: eDiscovery Trends

And, by “M&M”, I mean Missouri and Michigan.  ;o) Here is some important information regarding the impending eDiscovery rules changes in these two states.

On Thompson Coburn’s site (What you need to know about Missouri’s updated discovery rules, written by Rachel Harris), the author notes that Missouri Governor Mike Parson signed into law Senate Bill 224, which limit the scope of discovery and address electronically stored information (ESI) for the first time.  Welcome to the party, Missouri!

The amended rules went into effect on August 28th. Under Missouri Supreme Court Rule 41.06, the changes likely apply not only to actions filed after August 28th but also to civil actions pending as of August 28th, unless a court finds that applying the revised rules to a pending action “would not be feasible or would work injustice.”

Senate Bill 224’s changes attempt to bring Missouri’s discovery rules closer to the Federal Rules of Civil Procedure (FRCP) in several ways, such as:

  • Scope of discovery and proportionality: Missouri’s amended Rule 56.01(b)(1) will now limit the scope of discovery to information that is not only relevant but “proportional to the needs of the case.” This language mirrors the language of FRCP 26.
  • Electronically stored information: Rules 56.01(b)(3) and 58.01 now expressly permit discovery of ESI and permit a party to request that ESI be produced in native format. However, a responding party is not required to produce ESI that is not reasonably accessible because of undue burden or cost. A court may nonetheless order the ESI produced if the requesting party shows good cause.
  • Protection of privileged or work product material: Rule 56.01(b)(9) provides a procedure for clawing back information produced in discovery that is subject to a claim of attorney-client privilege or work-product protection. If the producing party gives notice, the receiving party must promptly return, sequester, or destroy the specified information. An attorney receiving what he or she reasonably believes to be privileged or protected information must stop reading the document, promptly notify the involved attorney, return the document, and delete it. Production of privileged or work-product protected information, whether inadvertent or otherwise, will not be a waiver of the privilege.

Additional impacts are discussed within the article.

In Legaltech News® (Michigan Is Getting Prepared for Its Biggest Discovery Rules Changes in 30+ Years, written by Zach Warren), the author notes that the latest state to update their rules to reflect the 2015 Federal rules changes is Michigan, which recently made the largest change to its civil discovery rules in 35 years(!) in a bid to increase “everyone’s access to our courts to resolve their civil legal dispute in a cost-effective manner,” the state bar said. The new rules go into effect Jan. 1.

Within the new rules, there is an increased importance on planning.  For example, judges will be placing a greater emphasis on discovery earlier in the case with required initial disclosures within Rule 2.302(A)(1). This may sound like it’s ported from FRCP Rule 26, and to some extent it is—but it also borrows from the recently amended Rule 26.1(a) of the Arizona Rules of Civil Procedure.

So, where can you go to learn more about and understand the changes?  At michbar.org/civildiscovery, the Michigan bar has set up a website going through the changes, as well as a calendar of events to help explain the changes throughout the state. This website also includes a link to a guidebook that runs through not only the changes, but also the relevant laws federally and in other jurisdictions that they are drawn from.

Michigan’s judiciary will take a central role in this education; it’s instructive that the guidebook begins with a forward from Chief Justice Bridget M. McCormack. B. Jay Yelton III, a partner at Warner Norcross + Judd, explained that judges were supportive of the committee and its changes for a rather simple reason: They want trials.

“People aren’t filing lawsuits because they can’t afford this system, and I think it strikes all of us that that’s a shame, that the system’s not working as well as it should,” he explained. “People are avoiding the system because of the use of outdated discovery rules that end up burdening the whole process to the point that you never get to a trial, you never resolve the issues.”

It was this sort of buy-in that made the rules process not only successful, but easier to understand, Yelton added. The committee brought in lawyers, judges and other stakeholders in early in the process, and the result was a rules package that elicited very few comments against and very few objections at live hearing.

So, what do you think?  What do you think of the changes?  Will more states follow suit?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Mars, Incorporated and its Affiliates.

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.

A Second State Now Has Approved a Technology CLE Requirement for its Lawyers: eDiscovery Trends

In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”  Then, back in May, we reported that another state was getting close to requiring technology training for part of their yearly CLE requirement.  Now, that state has formally approved that requirement.

According to Robert Ambrogi and his Law Sites blog (North Carolina Becomes Second State to Mandate Technology Training for Lawyers), North Carolina (my new home away from home because of this) has become the second state to mandate continuing education for lawyers in technology. Beginning in 2019, all lawyers will be required to complete one hour per year of CLE devoted to technology training.

The North Carolina Supreme Court approved the requirement at a conference on Sept. 20, according to the State Bar’s website.

As proposed by the State Bar, the new rule read:

“Technology training” shall mean a program, or a segment of a program, devoted to education on information technology (IT) or cybersecurity (see N.C. Gen. Stat. §143B-1320(a)(11), or successor statutory provision, for a definition of “information technology”), including education on an information technology product, device, platform, application, or other tool, process, or methodology. To be eligible for CLE accreditation as a technology training program, the program must satisfy the accreditation standards in Rule .1519 of this subchapter: specifically, the primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software. See Rule .1602 of this subchapter for additional information on accreditation of technology training programs.

Here is the full text of the new rule amendments.

Next up, Pennsylvania?  Earlier this year, the ABA Journal reported that the Pennsylvania Bar has also recommended that the state supreme court adopt a one-hour, every two-years technology CLE requirement.  No word on that approval – yet.

So, what do you think?  Will we see more states require technology CLE?  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.

TAR Rules for the New York Commercial Division: eDiscovery Trends

File this one under stories I missed until yesterday.  We’ve seen plenty of cases where the use of Technology Assisted Review (TAR) has been approved and even one this year where a protocol for TAR was ordered by the court.  But, here is a case of a jurisdiction that has proposed and adopted a rule to encourage use of the most efficient means to review documents, including TAR.

As reported in the New York Law Journal (NY Commercial Division Gives Fuller Embrace to E-Discovery Under New Rule, written by Andrew Denney), the New York Commercial Division has adopted a new rule to support the use of technology-assisted document review in appropriate cases.

As the author notes, plenty of commercial litigants are already using technology to help them breeze through potentially labor-intensive tasks such as weeding out irrelevant documents via predictive coding or threading emails for easier reading.  But unlike the U.S. District Court for the Southern District of New York, which has developed a substantial volume of case law bringing eDiscovery proficiency to the bar (much of it authored by recently retired U.S. Magistrate Judge Andrew Peck), New York state courts have provided little guidance on the topic.

Until now.  The new rule, proposed last December by the Commercial Division Advisory Council and approved last month by Lawrence Marks, the state court system’s chief administrative judge and himself a former Commercial Division jurist, would fill the gap in the rules, said Elizabeth Sacksteder, a Paul, Weiss, Rifkind, Wharton & Garrison partner and member of the advisory council.  That rule, to be incorporated as a subpart of current Rule 11-e of the Rules of the Commercial Division, reads as follows:

The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case.  Such means may include technology-assisted review, including predictive coding, in appropriate cases.

Muhammad Faridi, a commercial litigator and a partner at Patterson Belknap Webb & Tyler, said that using technology-assisted review is nothing new to most practitioners in the Commercial Division, but it is “revolutionary” for the courts to adopt a rule encouraging its use.  Maybe so!

So, what do you think?  Are you aware of any other rules out there supporting or encouraging the use of TAR?  If so, let us know about them!  And, 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.

Could We Be Close to a Second State to Approve a Technology CLE Requirement?: eDiscovery Trends

In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”  We covered it here.  That requirement went into effect on January 1, 2017 and CloudNine has certainly been providing several CLE courses that are technology approved in Florida.  We’ve been wondering when a second state was going to follow suit and we may be close to an answer.

According to Robert Ambrogi and his Law Sites blog (A Second State Moves Closer to Mandating Technology Training for Lawyers), the North Carolina State Bar Council has approved a proposed amendment to lawyers’ annual CLE requirements that would mandate that one hour of the required 12 hours of CLE training annually be devoted to technology training.

The council adopted the proposed amendment on April 20. The proposed amendment now goes to the North Carolina Supreme Court for approval.

The proposed amendment would also add a definition of technology training, as follows:

“Technology training” shall mean a program, or a segment of a program, devoted to education on information technology (IT) or cybersecurity (see N.C. Gen. Stat. §143B-1320(a)(11), or successor statutory provision, for a definition of “information technology”), including education on an information technology product, device, platform, application, or other tool, process, or methodology. To be eligible for CLE accreditation as a technology training program, the program must satisfy the accreditation standards in Rule .1519 of this subchapter: specifically, the primary objective of the program must be to increase the participant’s professional competence and proficiency as a lawyer. Such programs include, but are not limited to, education on the following: a) an IT tool, process, or methodology designed to perform tasks that are specific or uniquely suited to the practice of law; b) using a generic IT tool process or methodology to increase the efficiency of performing tasks necessary to the practice of law; c) the investigation, collection, and introduction of social media evidence; d) e-discovery; e) electronic filing of legal documents; f) digital forensics for legal investigation or litigation; and g) practice management software. See Rule .1602 of this subchapter for additional information on accreditation of technology training programs.

However, as Kevin O’Keefe notes in his Real Lawyers blog (via a tweet by Richard Granat), the same North Carolina has just passed regulation restricting the distribution of self-help legal software over the Internet.  Go figure.

Regardless, I will be very interested to see what happens in the state that I’m now spending a lot of my time (because of our recent acquisition, of course).

So, what do you think?  Will we see more states require technology CLE?  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.

Florida Has a New eDiscovery Checklist: eDiscovery Best Practices

One of the best things about speaking at The Master’s Conference is that you get to see other great sessions and presentations as well.  During the Orlando event earlier this week, one of the sessions was presented by Ralph Losey, a regular thought leader interviewee on this blog, who discussed revisions and amendments to a notable Local Rule on Pretrial Procedure in Civil Actions.  Those amendments include an excellent new 33 point eDiscovery checklist.

As Ralph discussed during the session and covered on his excellent E-Discovery Team® blog here (side note: you’ve got to love any blog post with two pictures of Milton from Office Space), the United States District Court for the Southern District Court of Florida is now revising its Local Rule 16.1 on Pretrial Procedure in Civil Actions (here’s a link to the Local Rules with the revisions, including the Administrative Order regarding the amended Rules).  The amendments will go into effect on December 1, 2017.  As Ralph noted, the main revision in the local rules is the addition of a new subsection (K) under 16.1(b)(2) Conference Report that lists what must be included in the attorneys’ report:

(K) any issues about: (i) disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (ii) claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert those claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502: and (iii) when the parties have agreed to use the ESI Checklist available on the Court’s website (www.flsd.uscourts.gov), matters enumerated on the ESI Checklist;

Ralph calls the rule revision and checklist a “fine addition” to the local rules, indicating that his only complaint is that the rule change doesn’t go far enough on Federal Rule of Evidence 502 and Rule 502(d) orders for non-waiver of privilege (which we’ve covered several times on this blog, most recently here).  His only criticism of the checklist is its use of non-descript bullet points, instead of numbering.  So, Ralph in his blog post and also in a handout from this week’s session, changed the bullet points to Roman numeral letters for easier referencing.  He also provided comments regarding each of the items (in blue italics, so they’re easily distinguishable).

With that in mind, here are the eight categories contained within the ESI checklist (number of items in each section in parentheses):

I. Preservation (7 items)

II. Liaison (1 item)

III. Informal Discovery About Location and Types of Systems (4 items)

IV. Proportionality and Costs (6 items)

V. Search (2 items)

VI. Phasing (6 items)

VII. Production (4 items)

VIII. Privilege (3 items)

A couple of the most notable categories is the idea of having an eDiscovery liaison for each party (which I think is a great way to help ensure a smooth discovery process) and the option and approach of conducting discovery in phases (which is also a great idea to help prioritize production of ESI and keep the process moving forward).

Regardless, it’s a great resource and guide, whether you’re in Florida or not.  A copy of the checklist (again, with Ralph’s comments) can be found here.

So, what do you think?  Do you use a checklist to guide you through the discovery process? As always, please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. 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.

Nebraska is the Twenty Eighth State to Adopt Duty of Technology Competence: eDiscovery Trends

One of my favorite legal blogs is the LawSites blog by Bob Ambrogi.  Bob is a prolific blogger who writes several posts a week, not only on his LawSites blog, but also on MediaLaw, and he co-authors Law.com’s Legal Blog Watch, and cohosts the weekly legal-affairs podcast Lawyer2Lawyer.  And, he’s been doing it since 1993 (wow!).  Bob has also been keeping track of states that have adopted a duty of technology competence and he just reported that Nebraska has become the twenty eighth state to do so.

According to Bob, the Nebraska Supreme Courtadopted the amendmenton June 28, 2017.  It amends comment 6 to Nebraska Rule of Professional Conduct § 3-501.1 — the corollary to ABA Model Rule 1.1 on competence — to read as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

The italicized phrase is the same as the language that the ABA recommended in 2012 when it approved a change to the Model Rules of Professional Conduct to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology.

While we’re up to 28 states, so far only two have apparently adopted a technology competence duty rule this year so far (Tennessee was the other state).  This after six states adopted such a rule last year and seven adopted one in 2015.  My rough graphic above has been updated to reflect the current states that have approved – still waiting for my home state of Texas to get with it.  Nonetheless, we are making progress, slowly but surely.  Thanks, Bob, for keeping track!

So, what do you think?  Are you aware of any other states that have adopted a duty of technology competence or working towards adopting one?  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. 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.

Need an “Assist” with Your eDiscovery Practices? Get an eDiscovery Assistant!: eDiscovery Best Practices

As someone who writes a blog daily for (part of) my living, I can attest that it can be a challenge to stay on top of eDiscovery trends and case law.  I try to do my best to provide some of that to the readers of this blog and, when it comes to case law, we provide posts on about 60 to 70 cases each year (we’re over 400 unique cases covered lifetime).  But, here’s a resource that provides access to even more case law, and several other great resources, as well.

eDiscovery Assistant™ is a site developed by ESI Attorneys that was built by attorneys and information law practitioners to provide several resources to help people get started — faster and with confidence — in eDiscovery.  Those resources include: case law, rules, checklists, forms, glossary of terms and (coming soon) a learning center with short, practical videos that explain concepts users can implement in their own eDiscovery operations.

When you open eDiscovery Assistant, you begin with a dashboard that shows you recent case law on the left hand side and a History of your activities on the right hand side to enable you to get back to something you looked at previously.  A list of Favorites that you’ve created is listed in the lower left side of the form and cite lists of case law searches is shown in the lower right side of the form.  Along the top of the form is a menu to enable you quickly navigate to search for case law, locate Federal, State and other rules, access a resource of checklists and forms for best eDiscovery practices, access your cite lists and access a glossary of eDiscovery-related terms.  Here’s an example of what the dashboard looks like:

According to the eDiscovery Assistant site, they have a database of over 5,000 eDiscovery decisions.  Each of those is categorized by the types of issues being addressed, so if you want to click on a type of issue to see how many case decisions and opinions there are about it, simply click on the issue to pull up all of those cases.  For example, clicking on the Technology Assisted Review (TAR) issue pulls up 39 results.  You can also perform date range searches and look for specific names (such as the name of a judge in whose courtroom you may find yourself) and other terms.  The application enables you to view the case decision and download it to PDF if desired.  As somebody who does a lot of research into key eDiscovery case law, it’s nice to have it all in one place.

The Checklists and Forms page includes over 40 checklists and forms in a variety of areas ranging from identifying relevant sources of ESI to legal holds to meet & confer/Rule 26 conferences, with forms and letters including sample preservation letters, sample clawback agreement and chain of custody forms.  It’s a great resource for those who need some help in getting started in several key areas of the eDiscovery process.

I spoke to Kelly Twigger, CEO of ESI Attorneys and eDiscovery Assistant, about the goal for the platform and why she decided to build the platform in the first place:

“I built eDiscovery Assistant to be the practice tool I wanted for my practice. I wanted to find case law by issue FAST. I wanted to know what discovery decisions the judge assigned to my case has authored without sifting through everything she’s written. And I wanted the rules for all jurisdictions at my fingertips. That’s why we built a proprietary tagging structure to let you sort case law by issue, jurisdiction, judge, date and keyword. Hours of work is reduced to minutes. ROI is made with one search.”

Kelly also indicated that they are “working with eDiscovery professionals from around the country to create a community of users who want to stop reinventing the wheel and learn as technology and the law develop.”

From a pricing standpoint, Kelly indicated that pricing is available on a per seat, multiple seat or custom site basis.  You can sign up directly for per seat monthly and annual subscriptions on ediscoveryassistant.com. The annual subscription includes two free months.  For firms or organizations seeking more than five seats, you can contact them to set up multiple seats on one account.

eDiscovery Assistant also offers the ability for a firm or organization to have a separate branded site. Custom sites can also include a separate administrative backend to upload proprietary checklists and templates for sharing within the firm only.  Contact them at 720.414.6106 or at support@ediscoveryassistant.com to inquire about pricing for custom options.

I want to thank everybody at the Women in eDiscovery (WiE) Houston Chapter for inviting me to speak at the Legal Technology Showcase & Conference yesterday.  It was a terrific and very well attended conference!  I also want to thank my fellow panelists in the “State of the Industry” panel: Lana Schell from ONE Discovery (who moderated), Michele Lange of KrolLDiscovery, Lynn Frances Jae of iCONECT and Richard Dilgren of Fronteo.  We led off with the first panel of the day and discussed a variety of topics including Technology Assisted Review, the growth of cloud automation technology within eDiscovery, the impact of cybersecurity on eDiscovery and the impact of the 2015 Federal rules changes.  It was an enjoyable and informative discussion!

So, what do you think?  Do you have a go to resource for eDiscovery case law and best practices?  Besides eDiscovery Daily, of course!  :o)  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. 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.

Florida Becomes First State to Require Technology CLE: eDiscovery Trends

OK, I may have taken a couple of shots at Florida last Thursday over their ballot issues in elections over the years.  However, Florida deserves credit in being the first state to require technology CLE for lawyers.

The rule change, among others proposed by the Florida Bar and ordered by the Supreme Court of Florida on Thursday states:

“We amend subdivision (b) (Minimum Hourly Continuing Legal Education Requirements) to change the required number of continuing legal education credit hours over a three-year period from 30 to 33, with three hours in an approved technology program.”

In that same order, Florida also became the 25th state to order adoption of the duty of tech competence for that state, stating:

“The comment to rule 4-1.1 (Competence) is amended to add language providing that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field. Competent representation may also entail safeguarding confidential information related to the representation, including electronic transmission and communications. Additionally, we add language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.”

The changes become effective on January 1, 2017.

As reported Monday on his Law Sites blog (Florida Becomes First State To Mandate Tech CLE), Bob Ambrogi notes that the mandate was first recommended by the Technology Subgroup of the Florida Bar’s Vision 2016 commission, which was chaired by Vero Beach lawyer John M. Stewart.

“If you are going to be competent in the practice of law, you have to understand technology related to your practice area,” Stewart told The Florida Bar News in 2015. “How do you do that? Through association — you hire an expert to associate with — or through study.”

The change was a surprisingly easy sell, Stewart told Victor Li at the ABA Journal. “I think everyone recognized that lawyers could benefit from more education, both when it comes to technology and in general.”

So, what do you think?  Will other states follow suit and require technology CLE as well?  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. 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.