Privilege Review Updates

Posted on April 2, 2013 by admin

There have been a few interesting cases cases and articles concerning privilege review and logs over the last six months or so. Privilege review has always beenan interest of mine as it seems an area where technology, big data, case law and legal history intersect.

To Summarize:

Delaware Courts update ediscovery guidelines including privilege review and logging suggestions. For example, parties are free to agree to log certain types of documents by category instead of on a document-by-document basis
Judge Facciola uses the case of Chevron Corp. v. The Weinberg Group, to offer his suggestions and reminders on privilege log basics. For example, Mechanically Produced Boilerplate Language Will Not Be Tolerated.
In Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. A ruling on the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), led the court to note “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,” but found that privilege was not waived because a Rule 502(d) order had been entered.

More Detail Below

1) Delaware court of Chancery Updates –Ediscovery Guidelines( Including privilege and privilege logs)

Good overview here: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202583058786&Delaware_Court_of_Chancery_Updates_EDiscovery_Guidelines&slreturn=20130227181209

The “Discovery Guidelines” emphasize the continued importance of privilege log and that the senior attorney on a case must take an active role and reasonable steps during the privilege review and preparation of privilege logs. The guidelines provide suggestions for handling privilege log issues:

The parties are not expected to log post-litigation communications;
The parties are free to agree to log certain types of documents by category instead of on a document-by-document basis; and
With respect to email chains, parties should attempt to agree on the procedures that both sides will use.

The guidelines do suggest given the cost or privilege review that parties can be flexible and creative in this area. The court encourages the parties to make agreements that reduce the time, expense, and burden associated with conducting a document-by-document privilege review.

2) Judge Facciola on Privlege log basics: Chevron Corp. v. The Weinberg Group, Misc. Action No. 11-409 (JMF), 2012 U.S. Dist. LEXIS 137826 (D.D.C. Sept. 26, 2012),

Article with link to full case: http://www.applieddiscovery.com/ws_display.asp?filter=Blog_Detail&item_id=%7B3AAE8B8A-C265-4F73-BB3B-C4217BB0E13E%7D

Judge Facciola took the opportunity in Chevron Corp. v. The Weinberg Group, to describe the persistent shortcomings of many litigants, particularly in the age of Big Data, in complying with the Federal Rules of Civil Procedure (FRCP) with respect to privilege logs. In his opinion, Judge Facciola went on to offer practical steps and examples that litigants can use to create logs that meet the requirements in the FRCP. He also warned of dire consequences awaiting those who refuse to comply.

Calling it “startling how common the insufficient entry is in most privilege logs,” Judge Facciola reminded the litigants of their basic duty under Rule 26(b)(5)(A)(ii) regarding claims of privilege to “‘describe the nature of the documents . . . not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.’” From a proper entry, “the opposing party should be able . . . to assess whether the claim of privilege is valid.”

Mechanically Produced Boilerplate Language Will Not Be Tolerated. Judge Facciola reasoned that the rise of Big Data has compounded the problem of insufficient log entries because technology allows the party creating a log to simply repeat the same “generic” descriptor over and over for a large number of entries without a “human being evaluating the actual, specific contents of [each] particular document.”
Moreover, the party creating the log can hide behind its meaningless descriptor and potentially suppress discoverable documents. In Chevron, the defendant used a slight variation of the same phrase for all e-mail entries. Without information tailored to each e-mail, Judge Facciola pointed out that it was impossible to ascertain whether the assertion of privilege was legitimate, such as a substantive discussion with a lawyer (opinion work product), or invalid, as in the case of an e-mail simply transmitting a report to a lawyer (fact work product).

Produce Fact Work Product and Redact Opinion Work Product. Judge Facciola ordered the defendant to review the documents it claimed were privileged, produce the fact work product, redact the opinion work product, and submit “a description of the excised material that complies with Rule 26 by explaining why the redacted portion qualifies for protection.” Judge Facciola emphasized that his instructions were not to be taken lightly, and other litigants should take heed. He warned, “I expect specific and clear claims of privilege as to each redaction made. I will hold counsel to their 26(g) obligations ruthlessly, and, at a minimum, hold that the privilege is waived whenever the obligations I am imposing are disobeyed.”

3) Court: rule 502(d) Order provided right to claw back – no matter what the circumstances. Subtitled- always check text that is provided with redacted documents. Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Summary with link to full case: http://www.ediscoverylaw.com/2013/01/articles/case-summaries/502d-order-provides-right-to-claw-back-no-matter-what-the-circumstances-that-resulted-in-production/

This motion involved the inadvertent production of privileged information contained in drafts of five separate documents. These documents were produced in redacted form but all of the text but could be viewed in the metadata (I would guess the original extracted text was produced for these items instead of OCR’ing the documents after they were redacted and replacing the original full extracted text with the redacted OCR text). The court noted that such an event emphasized “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,” but found that privilege was not waived because a Rule 502(d) order had been entered. Defendant “had the right to claw back the minutes, no matter what the circumstances giving rise to their production were.”

My Reading Week

Posted on April 9, 2012 by admin

My Week in reading April 1^st- 8^th

My favorite three articles of last week included:

Karl Schieneman writing on his blog “Documents Review MD Blog” on the second day of the Kleen hearing which he attended part of.

In Kleen, basically the Plaintiffs are seeking an order that a predictive coding system be required to assist with document discovery. The Plaintiff believed discovery has been inadequate to date. The Defendants on the other hand defend their use of Boolean searching and attorney review. According to Mr. Schieneman “My sense is this discussion of “where to search” and doing sampling to set baselines for recall will represent the new “key word” negotiation in the world of predictive coding. Time will tell on this one but I would be hard pressed not to advise a client to do or ask for this type of testing up front. Trusting is fine but verifying through some measurement is better. Since these tests are based on sampling, they are easy to employ once the population of documents to be sampled is agreed to. Statistics and openness in results can only improve cooperation which requires both parties to have some degree of trust in each other to work. Identifying the appropriate universe of potentially relevant ESI is where the art of E-Discovery occurs. This is what the parties in Kleen need to be talking about. Sampling can help with this task too as it is what was done in the Zubulake case to assess whether there was missing ESI on backup tapes which the defendants had not produced in their review of active email servers. Sampling what is not produced is a good way to validate a data source is not a worthwhile source of data to be searching in. “

http://docreviewmd.com/kleen-hearing-day-2-the-battle-of-boolean-searches-versus-sampling-and-predictive-coding-and-attacking-expert-witnesses/

David Bilinsky writing on his web site “Thoughtful Legal Management” regarding “2012 ABA Tech show takeaways. Mr. Bilinsky writes that the underlying theme of the AMA Tech show was the future of the legal profession.

“There is no one, simple and straightforward ‘fix’ to our current economic malaise and to the future of the legal profession. We need to do a number of things. We need to equip lawyers to be better business people. We need to change law schools so law graduates come out prepared to not just research the law, but to practice it. We need to change the dispute resolution system so it is just, speedy and inexpensive and utilizes the latest in technology. After all the current court process has largely escaped the changes that have occurred in most areas of society courtesy of technology and the internet.”

“We need lawyers to come together in large organizations that will focus on servicing the needs of the lower to middle class. We already have big firms that focus on meeting the needs of big business as well as those who can afford ‘white shoe’ legal services. Legal regulators, in my view, need to adjust how the legal profession can be regulated to allow innovative management to bloom to allow this to happen. The consequence of not figuring this out will be the replacement of lawyers by businesses such as LegalZoom that will meet these and other (currently unmet) needs in ways that are speedy and inexpensive.”

http://thoughtfullaw.com/2012/04/02/2012-aba-techshow-takeaways/

Damon Wright a partner with Venable writing in the National Law Journal on “Top 12 tips for saving money in litigation” Here are the 12 tips Twitter style:

No. 1: Conduct targeted preservation and collection.
No. 2: Calibrate
No. 3: File in a fast-moving court.
No. 4: Know the court.
No. 5: Have a key client liaison.

No. 6: Select vendors and experts with care.
No. 7: Try to get along with opposing counsel.

No. 8: Allow opposing counsel to inspect and copy documents at their expense.

No. 9: Limit e-mail production by custodians, search terms and date range.

No. 10: Seek agreement on a narrowed privilege log and a no-waiver order.

No. 11: Pursue cost-shifting for discovery.
No. 12: Stipulate to facts not in dispute.

Read the full article:
http://ht.ly/a7zJj

My Week in Reading

Posted on April 1, 2012 by admin

My Reading Week in Ediscovery, Legal Tech and Management through 03/31/12-

Third Circuit Finds That Failing to Produce Original Documents May Constitute Sanctionable Spoliation

Susan L. Nardone writing for Ediscovery Law Alert produced by the Gibbons law firm

“The Third Circuit’s decision is a mixed bag for employers. The Court’s determination that the failure to produce originals when requested can constitute spoliation has the potential to impact parties on both sides. The decision is tempered by its requirement that the original must contain “critical information” that could not be gleaned from a copy. In this case, the Court’s decision was further watered down by the less than compelling factual record and the Court’s apparent inclination to give the plaintiff the benefit of every doubt.”

http://www.ediscoverylawalert.com/2012/03/articles/legal-decisions-court-rules/third-circuit-finds-that-failing-to-produce-original-documents-may-constitute-sanctionable-spoliation/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+E-discoveryLawAlert+(E-Discovery+Law+Alert)#.T3XmFmHqTEg.twitter

Overview of Predictive Coding

Training of Predictive Coding Systems Fosters Debate (great overview of predictive coding systems)

Evan Koblentz writing in Law Technology News

Recommind: starts with a random sample of documents and active searching in its training approach. The software, called Axcelerate, then begins many rounds of refining its search until no more responsive documents are found. Customers typically need seven rounds before reaching that point.

Equivio: opted for active searching. Its software, known as Zoom, begins with a 500-document random sample and then calculates how many more documents are needed. Based on what it learned about responsive documents from the random sample, it then starts a second phase of searching far fewer documents to fine-tune the results, aiming to avoid having too few or too many results. Then proceed to the decision support environment. There the system will provide you with metrics to assist you in making a decision about which documents will be forwarded to the review set and which documents will be culled.

OrcaTec: Uses random sampling. Seeding and active searching are more accurate in theory, he said, “But in practice, it turns out not [to] be. OraTec actually uses about the same number of documents for training,” compared to other methods. Random sampling’s advantages are that its performance at any point during the selection process indicates the performance of the final result, and that documents that users accidentally deem unresponsive can be reconsidered. The process can be tedious, however. d.

Symantec/Clearwell Systems: division is planning a hybrid approach that lets clients decide which method is right for them, with a focus on method transparency. Delivery slated for the second half of this year. “The training document selection is something that’s quite wide open in Clearwell. You could use random sampling, or you could perform keyword search, or you could perform active-culling early case analysis … and identify a small number of training documents,” Vice President of Technology Venkat Rangan said.

RenewData, where Chief Scientist Andy Kraftsow developed a more manual predictive coding process called DART — defensible auditable review tagger. In that application, users review thousands of documents, gradually teaching the computer about the case’s vocabulary. It requires more time than the more automated methods. However, companies that state the need for far fewer initial documents tend to be conservative when stating the amount of responsive documents missed and time it takes their systems to work, he asserted.

http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202546991384&Training_of_Predictive_Coding_Systems_Fosters_Debate=&et=editorial&bu=LTN&cn=LTN_20120327&src=EMC-Email&pt=Law%20Technology%20News&kw=Training%20of%20Predictive%20Coding%20Systems%20Fosters%20Debate&slreturn=1

More DaSilva: Should the ‘Daubert’ Standard Apply to Predictive Coding? We May Know Soon.

Bob Ambrogi writing on Catalyst Secure blog

“You may recall that before Judge Peck issued his written opinion in this case on Feb. 22, he made oral rulings at the motion hearing on Feb. 8. On Feb. 22, just as Judge Peck was issuing his written opinion, the plaintiffs filed objections to his Feb. 8 rulings. One of their central arguments was that Judge Peck erred in disregarding his gatekeeper role under Daubert.

Because predictive coding is a new and novel technology, they argued, Judge Peck should have required expert testimony regarding its reliability or appropriateness. They cite Magistrate Judge Paul Grimm’s well-known ruling in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 n.10 (D. Md. 2008), where he said, “[R]esolving contested issues of whether a particular search and information retrieval method was appropriate … involves scientific, technical or specialized information.” Relying on this, the plaintiffs argued.”

http://www.catalystsecure.com/blog/2012/03/should-the-daubert-standard-apply-to-predictive-coding-we-may-know-soon/

DOJ E-Discovery Failures in Senator Stevens Ethics Trial

Posted on March 19, 2012 by admin

If you grew up in Alaska as I did, whether you were a Republican or Democrat former Senator Ted Stevens was personally popular and respected in a way that very few politicians are today. It is really shocking when you read how the prosecutors in his ethics trial intentionally withheld and concealed evidence from the defense team. Hopefully this is not a widespread practice within the DOJ.

In a 514-page report made public last Thursday, the special investigator said he had uncovered evidence that would “prove beyond a reasonable doubt” that two members of the prosecutorial team in the 2008 trial, had deliberately kept exculpatory information from Mr. Stevens defense team. Most of the report involved the failure of the prosecutors to turn over potentially exculpatory evidence, there was also some allegations regarding failure to properly produce electronic evidence (beginning on page 98 of the report).

The Report states “there is evidence that the government manipulated electronic discovery in an attempt to make the defense teams review more difficult.” On Aug. 8, 2008, Williams & Connolly (the law firm for Senator Stevens) wrote to Mr. Marsh (a member of the prosecution team) regarding the production of electronic documents without “load file[s]” which made the production “virtually unusable.” Mr. Marsh replied that “no ‘load files’ or other coding information has been intentionally withheld.”

The Report went on to discuss the role of Jody Bradison, a litigation technologist/manager in the Alaska U.S. Attorney’s Office, who assisted in the electronic document production stated she prepared a hard drive containing the first document production to Williams & Connolly which was to be delivered by Mr. Marsh personally. The production was voluminous, about 750 gigabytes. She showed Mr. Marsh how she had organized the documents in the hard drive into sub-folders for each source. Ms. Bradison stated that Mr. Marsh asked her to dump all the documents into one directory with single-page tiffs because he didn’t want to make it easy for them. Mr. Marsh told Ms. Bradison that he had previous dealings with Williams & Connolly that were “not amicable”.14 Ms. Bradison stated that Mr. Marsh’s view was that producing the documents in single-page tifs would make document review more difficult for Williams & Connolly. She didn’t think that it made any difference and that changing the format was a waste of time

My Week in Litigation Tech and E-Discovery Reading

Posted on March 4, 2012 by admin

My weekly Litigation Tech and E-Discovery Reading through 03/03/12

Kind of busy at work so didn’t get a chance to read as much as I would have liked. Hate it when work interferes! Seems like kind of slow week in the ediscovery world as well.

Informational Governance and Social Media

Forbes article looking at companies that dive into social media without the right policies and solutions to govern usage will encounter information governance and eDiscovery nightmares down the road. This happened with e-mail before the true cost was realized. And there should be proactive effort to prevent before the same thing happens with social media. I would just point out that the focus of the article is on “public” social media sights like Twitter and Facebook. Many companies, departments, and even individual employees have what I would describe as private social sites such as Wikis, Yammer, and various IM programs that also be governed.

http://www.forbes.com/sites/barrymurphy/2012/02/28/the-next-governance-frontier-social-media/

Update in the McDermott Malpractice Litigation

Another update by ACEDS: Judge Wu, who last July ordered the disqualification of J-M’s successor lawyers, Sheppard Mullin, for conflict of interest for representing in another matter a party opposed to J-M in the False Claims suit, gave parties until March 15 to file briefs addressing when, how and on how many occasions roughly 4,000 privileged documents came into possession of the plaintiffs. In September 2011, JM sought the court-ordered return or destruction of the documents. It has been trying unsuccessfully to recover the records since June 2010. Wu says it is still unclear whether privileged documents produced multiple times by J-M through Stratify and its attorneys at Sheppard Mullin and, subsequently, Bird Marella were the same privileged documents J-M previously produced to the US government through Stratify and McDermott.

http://aceds.org/judge-asks-for-answers-to-lingering-questions-in-case-underlying-McDermott-malpractice-suit

More on Judge Peck ‘s Predictive Coding “Order” and Possible Effect on Review Attorneys

Follow-up to Judge Peck’s predictive coding decision – this one from the point of view of a document reviewer. From the “Generation JD” website- A blog for young lawyers.

http://thedailyrecord.com/generationjd/2012/03/02/are-document-reviewers-about-to-be-replaced/

Ralph Losey on Pinterest

A Pinterest posting from the 2011 Intermountain conference. Still trying to figure out what Pinterest is, if I should join, and how to use!

http://pinterest.com/pin/277323289524165893/

Keep Data Safe When Traveling

Still amazed how many attorneys do nothing, or close to nothing to protect their portable devises. Good overview of some simple suggestions to keep data safe,

http://www.entrepreneur.com/article/222960

Homeland Security Key Word Search Terms

Have they thought of using technology assisted review?

http://animalnewyork.com/2012/02/the-department-of-homeland-security-is-searching-your-facebook-and-twitter-for-these-words/

Favorite E-Discovery Articles – Third Week of February, 2012

Posted on February 20, 2012 by admin

What I thought were the most important and interesting e-discovery or legal technology rlated stories that occured in the week of February 13^th-19^th 2012. Will try to post each week.

February 19^th, 2012

Ralph Losey at the “E-Discovery Team” blog looks at admitting ESI evidence in the BP oil spill litigation. Several e-mails that would appear to be important to the Plaintiffs in this matter will not be admitted for a variety of reasons including hearsay and that the e-mails appear to be isolated or casual in nature.

http://e-discoveryteam.com/2012/02/19/evidentiary-objections-to-email-are-key-to-bp-oil-spill-case/

February 16^th, 2012

Chris Dale in his “e-disclosure information project” blog on the importance of innovation and informed risk taking in the e-discovery field. As he says the willingness to take risks does not imply reckless disregard of the rules and the professional duties, but a realistic analysis of what is expected of a party and its lawyers on any sensible interpretation of their responsibilities.

http://chrisdale.wordpress.com/2012/02/17/innovation-and-informed-risk-taking-are-an-ediscovery-duty/

February 15^th, 2012

Blog at the ESI Ninja web site takes a detailed look at the now infamous Lindholm e-mail that was ruled not to be privileged in the on-going Oracle v. Google patent dispute.

http://esininja.com/blog/2012/02/15/federal-circuit-agrees-with-oracle-googles-lindholm-email-is-not-privileged/

February 15, 2012

Mikki Tomlinson writes in the ediscovery Journal on Judge Peck’s predictive coding order and that the early headlines got it wrong when they suggested he “ordered” predictive coding.

http://ediscoveryjournal.com/2012/02/the-honorable-andrew-j-peck-on-the-record-with-predictive-coding-early-headlines-get-it-wrong/

Compilation of 2012 E-discovery and Information Governance Predictions and Trends

Posted on January 4, 2012 by admin

1) Information Governance and Data Management:

“For several years there’s been an effort to combine the reactive (far right) side of the EDRM with the logically connected proactive (far left) side of the EDRM. But now, a number of surveys have linked good information governance hygiene with better response times to eDiscovery requests and governmental inquires, as well as a corresponding lower chance of being sanctioned and the ability to turn over less responsive information. In 2012, enterprises will realize that the litigation use case is just one way to leverage archival and eDiscovery tools, further accelerating adoption.” Dean Gonsowski – Clearwell http://www.clearwellsystems.com/e-discovery-blog/2011/12/08/top-ten-ediscovery-predictions-for-2012/
“as eDiscovery moves to the enterprise, eDiscovery will become a subset of Information Governance in 2012.” Charles Skamser, and Gene Petty http://ediscoveryconsulting.blogspot.com/2011/12/information-governance-and-ediscovery.html
“As Early Case Assessment (ECA) vendors expand their product lines “right” into document review and case management and as document review platform expand their product lines “left” into ECA, the market is going to have a choice of more end-to-end information governance and eDiscovery solutions. In addition, we will see the integration of data mapping, legal hold, semantic search, predictive coding, project management, workflow management and case management into these end-to-end solutions.” Charles Skamser, and Gene Petty, http://ediscoveryconsulting.blogspot.com/2011/12/information-governance-and-ediscovery.html
“As corporate eDiscovery processes continue to mature in 2012, best practices will involve identifying stakeholders; holding regular status meetings; managing timelines, workflow and production requirements; tracking and measuring progress; and standardizing on identified best practices. eDiscovery is fundamentally a collaborative and time-sensitive process that involves multiple geographically dispersed participants. From a technology perspective, more mature organizations will move towards utilizing centralized legal repositories to support a multi-matter eDiscovery process and rely less on single matter and ad hoc management of individual cases.” Steve d’Alencon Case Central http://www.metrocorpcounsel.com/articles/16673/top-five-ediscovery-predictions-2012
“2012 will bring changes for how law firms utilize knowledge gained during reviews. Such changes include bringing more consistency across platforms (what is redacted in one document, should be redacted in another, etc), as well as new ways to “repurpose and leverage attorney intellectual capital across multiple matters” which will help cut costs and save time. To make these changes possible, companies will need to use purpose-built repositories and master databases so that review decisions made in one matter can be leveraged in subsequent matters any number of ways.” Kurt Jensen, Daegis http://www.cmswire.com/cms/information-management/5-ediscovery-predictions-for-2012-013521.php
“Large enterprises face huge challenges dealing with Big Data. Big Data covers both structured data (e.g. that in ERP systems) and unstructured content (e.g. files stored in SharePoint). Companies need to leverage all information for strategic advantage while ensuring they know what they have, where it is, how to get it, and how to quickly discern what it means for eDiscovery purposes. How can the information management platform impact eDiscovery? Well, in the minds of corporate practitioners, preservation “in-place” would be the panacea for many of their preservation headaches. An information management platform could potentially deliver such preservation benefits. We already see many large software vendors positioning to be the huge information management platform (e.g. HP/Autonomy, IBM, Microsoft, Oracle, and HP). IG and eDiscovery capabilities will be critical components of the information management platform. Currently, there is no vendor capable of delivering a full platform, nor are any companies ready to deploy such a platform across the enterprise. Rather, 2012 will be the year we begin seeing the vendors jockey for position.” Barry Murphyhttp://www.forbes.com/sites/barrymurphy/2011/12/15/how-will-ediscovery-impact-businesses-in-2012/

2) FRCP and U.S. Rules Changes:

“The US will stop thinking of itself as ‘two years ahead’ of everybody else as its own eDiscovery rules come under increasing fire from within. With that will come a more realistic approach to data collections from jurisdictions whose discovery rules are more restrictive than those of the US. That will be matched by a growing realization, in the EU at least, that US eDiscovery cannot simply be ignored, particularly for those seeking the benefit of US trade and US courts”. We will not see a result in 2012, but changed attitudes and a better use of technology will be a good start.” Chris Dale http://chrisdale.wordpress.com
“… there isnt a consensus yet regarding which changes, if any, would help improve the murky problem. In the near term this means that organizations with significant preservation pains will need to better utilize the rules that are on the books and deploy enabling technologies where possible.” Dean Gonsowski Clearwell http://www.clearwellsystems.com/e-discovery-blog/2011/12/08/top-ten-ediscovery-predictions-for-2012/

3) International E-discovery:

“Non-US eDiscovery investment, particularly in Asia and the EU, will rise as a proportion of the total eDiscovery spend.” Chris Dale http://chrisdale.wordpress.com
“It’s easy to think of the US as dominating the eDiscovery landscape. While this is gospel for us here in the States, international markets are developing quickly and in many ways are ahead of the US, particularly with regulatory compliance-driven use cases, like the UK Bribery Act 2010. This fact, coupled with the menagerie of international privacy laws, means we’ll be less Balkanized in our eDiscovery efforts moving forward since we do really need to be thinking and practicing globally.” Dean Gonsowski Clearwell http://www.clearwellsystems.com/e-discovery-blog/2011/12/08/top-ten-ediscovery-predictions-for-2012/

4) The Cloud:

“One of the biggest e-discovery trends over the past year has been the proliferation of cloud computing. Although cloud computing is basically just another method for companies to generate and store data, use of the cloud can dramatically increase the number of locations where data is stored. For the coming year, insiders expect to see growth in the number of cloud vendors who address e-discovery obligations in initial contracts, and a continuance of limiting the cloud provider’s role when it comes to e-discovery.” Advanced Discovery http://www.advanceddiscovery.com/blog/2011/12/e-discovery-trends/
“The real change that we will witness in 2012 will be virtual technology (not hardware based) that enables users to move information governance and eDiscovery solutions/platforms to the cloud ESI and collects it and processes it in the cloud where it resides. Physical location will no longer be an issue. Collection and moving massive amounts of data will no longer be an issue. The salability of hardware solutions will no longer be an issue. Staging information governance and eDiscovery repositories in third party service provider data centers will no longer be required. Enterprises will be able to move virtual information governance and eDiscovery solutions around their networks and private clouds as required to collect and process ESI where it resides. Cloud Service Providers (CSPs) will provide information governance and eDiscovery solutions as part of their standard IaaS and PaaS technology stacks. Early Case Assessment (ECA) is going to take on a whole new meaning. This approach is a major paradigm shift in the entire concept of how information governance and eDiscovery should work. 2012 is going to be an exciting year for information governance and eDiscovery in the cloud.” Charles Skamser, and Gene Petty, http://ediscoveryconsulting.blogspot.com/2011/12/information-governance-and-ediscovery.html
“Many have realized that “the cloud” is simply another delivery model for many different solutions, from storage, to applications to complete computing infrastructures. And there can be significant economic and time-to-market benefits by using a cloud-based approach. Whether you call it software as a service (SaaS) or cloud-based, the adoption of cloud computing will accelerate in 2012. In October, 2011, a KPMG survey concluded, “the cloud is now,” saying, “the vast majority of senior executives say their organizations have already moved at least some business activities to the cloud and expect 2012 investment to skyrocket, with some companies planning to spend more than a fifth of their IT budget on cloud next year.” Steve d’Alencon Case Central http://www.metrocorpcounsel.com/articles/16673/top-five-ediscovery-predictions-2012
“Information security and data protection issues surrounding contracting for cloud services will begin the road to maturity in 2012 as the federal government continues its push of fed agency IT needs into the cloud. The result will help provide guidance on cloud contracting issues addressing audit assurances, cloud security and accreditation, e-discovery issues, security controls and allocation of liability and responsibility for data security, to name but a few.” Richard Santalesa http://www.infolawgroup.com/2012/01/articles/information-security/a-handful-of-2012-privacy-security-predictions/
“There is no stopping the freight train that is the Cloud, but legal, privacy, security, and control issues will force some to apply the breaks a bit. While many applications like a CRM can move quickly to the Cloud without impediment, legal and discovery concerns are enough to force companies to think twice before completely moving information management to the Cloud. In eDJ’s eDiscovery and The Cloud survey earlier this Fall, half of all respondents were either somewhat or very concerned about eDiscovery of information stored in the cloud. eDJ will expose some of the issues with proactive information storage in the Cloud and SaaS-based eDiscovery in the Cloud. The Cloud will continue to change cost dynamics of the industry, with prices for information storage and processing continuing to come down.” Barry Murphy http://www.forbes.com/sites/barrymurphy/2011/12/15/how-will-ediscovery-impact-businesses-in-2012/

5) Social Media:

“While email has been the eDiscovery darling for the past decade, it’s getting a little long in the tooth. In the next year, new types of ESI (social media, structured data, loose files, cloud context, mobile device messages, etc.) will cause headaches for a number of enterprises that have been overly email-centric. Already in 2011, organizations are finding that other sources of ESI like documents/files and structured data are rivaling email in importance for eDiscovery requests, and this trend shows no signs of abating, particularly for regulated industries. This heterogeneous mix of ESI will certainly result in challenges for many companies, with some unlucky ones getting sanctioned because they ignored these emerging data types. Dean Gonsowski Clearwell http://www.clearwellsystems.com/e-discovery-blog/2011/12/08/top-ten-ediscovery-predictions-for-2012/
“There has been a substantial increase in electronically stored information (ESI) over the past few years. New varieties have emerged recently, such as cloud context, mobile to mobile communication, loose files, social media, structured files etc. More and more organizations are noticing that these types of ESI trump file sharing through emails. Now this news can be a bit disheartening to companies that are afraid of change, but when dealing with eDiscovery requests it predicted that the social media trend shows no signs of fading. David Kaufer Teris http://blog.teris.com/socialmedialegalrisk/bid/73003/7-eDiscovery-Predictions-for-2012
“Pushed by the ethical requirements for litigators to understand and utilize eDiscovery for social media and the practical requirements to ensure that all pertinent ESI is being collected and submitted, there will be a major move by the courts and litigators in 2012 to ensure that social media evidence is being collected and submitted with an appropriate chain of custody and with access to metadata to ensure the validity of the evidence. And, as a result, legacy ECA vendors will social media file types to their bag of tricks and numerous new Discovery tools for social media will be released in 2012.” Charles Skamser, and Gene Petty, http://ediscoveryconsulting.blogspot.com/2011/12/information-governance-and-ediscovery.html
“The cloud and social media are not strangers to the predictions list. And in 2012 they will continue to blur the lines, as more social networking sites like Facebook and Twitter and offshore cloud servers are called into litigation. Unlike previous years, however, 2012 could be a landmark year for these two challenging mediums. As a result, companies are behooved to set up protocols for allowing or prohibiting access to social networks and understanding where data will physically reside before choosing a cloud vendor.” Kurt Jensen, Daegis http://www.cmswire.com/cms/information-management/5-ediscovery-predictions-for-2012-013521.php

6) Technology Assisted Review:

“The area of Technology Assisted Review is very exciting since there are a host of emerging technologies that can help make the review process more efficient, ranging from email threading, concept search, clustering, predictive coding and the like. There are two fundamental challenges however. First, the technology doesn’t work in a vacuum, meaning that the workflows need to be properly designed and the users need to make accurate decisions because those judgment calls often are then magnified by the application. Next, the defensibility of the given approach needs to be well vetted. While it’s likely not necessary (or practical) to expect a judge to mandate the use of a specific technological approach, it is important for the applied technologies to be reasonable, transparent and auditable since the worst possible outcome would be to have a technology challenged and then find the producing party unable to adequately explain their methodology.” Dean Gonsowski Clearwell http://www.clearwellsystems.com/e-discovery-blog/2011/12/08/top-ten-ediscovery-predictions-for-2012/
“The mystical world of semantic search and natural language processing technology will finally go mainstream in 2012. New Information governance and eDiscovery technology vendors will emerge that are utilizing this technology as the foundation of their offerings or have seamlessly integrated this technology into their platforms. Litigators will begin to understand the value of semantic search, courts will begin to accept the results and users will begin to demand its use. Before the end of 2012, the industry may even recognize the term ‘Lucene’.” Charles Skamser, and Gene Petty, http://ediscoveryconsulting.blogspot.com/2011/12/information-governance-and-ediscovery.html
“Many organizations experimented with predictive coding in 2011. Look for some interesting case studies to emerge that allow the legal community to feel more comfortable with the defensibility and accuracy of predictive coding. Also, look for some vendors to use other terminology – like Technology Assisted Review (TAR)– so as not to invite legal pressure from Recommind (who patented their own predictive coding technology/process and tried unsuccessfully to trademark the term). Predictive coding will have its biggest impact in the ECA realm, as corporations and law firms use it for first-pass review. eDJ does not see predictive coding gaining widespread adoption as a replacement for linear review in 2012, though we are beginning to hear stories of this occurring” Barry Murphy http://www.forbes.com/sites/barrymurphy/2011/12/15/how-will-ediscovery-impact-businesses-in-2012/

7) Data Storage and Collection:

“The amount of electronic data for both business and personal use has grown exponentially over the past few years, and appears unlikely to slow anytime soon. This increase has lead to more electronic data being subject to the discovery process. For this reason, one e-discovery trend is for businesses to continue to develop solid retention and archival practices in order to be better prepared for litigation and investigations.” Advanced Discovery http://www.advanceddiscovery.com/blog/2011/12/e-discovery-trends/
“The war cry of many IT professionals that “storage is cheap” is starting to fall on deaf ears. Organizations are realizing that the cost of storing information is just the tip of the iceberg when it comes to the litigation risk of having terabytes (and conceivably petabytes) of unstructured, uncategorized and unmanaged electronically stored information (ESI). This tsunami of information will increasingly become an information liability for organizations that have never deleted a byte of information. In 2012, more corporations will see the need to clean out their digital houses and will realize that such cleansing (where permitted) is a best practice moving forward. This applies with equal force to the US government, which has recently mandated such an effort at President Obama’s behest.” Dean Gonsowski Clearwell http://www.clearwellsystems.com/e-discovery-blog/2011/12/08/top-ten-ediscovery-predictions-for-2012/
‘As the volume of electronic data grows, and more storage locations become available for ESI, the difficulty in collecting the information increases. Therefore, one e-discovery trend for the upcoming year is better control and standards for the many areas where e-data can be stored. Social media, smartphones and tablet computers are all creating multiple storage areas where electronic data relevant to litigation can hide.” Advanced Discovery http://www.advanceddiscovery.com/blog/2011/12/e-discovery-trends/
“Ever since the days of Zubulake, litigants have focused on “key players” as a proxy for finding relevant information during the eDiscovery process. Early on, this model worked particularly well in an email-centric environment. But, as discovery from cloud sources, collaborative worksites (like SharePoint) and other unstructured data repositories continues to become increasingly mainstream, the custodian-oriented collection model will become rapidly outmoded because it will fail to take into account topically-oriented searches. This trend will be further amplified by the bench’s increasing distrust of manual, custodian-based data collection practices and the presence of better automated search methods, which are particularly valuable for certain types of litigation (e.g., patent disputes, product liability cases).” Dean Gonsowski Clearwell http://www.clearwellsystems.com/e-discovery-blog/2011/12/08/top-ten-ediscovery-predictions-for-2012/
“In 2012, data collection will be more complex, not only because there will continue to be immensely more of it, but also because the number of locations from which to collect data will continue to increase. This challenge spans behind the firewall storage, email, archives, applications and computers, cloud-based business applications and systems, a dizzying array of social media and also mobile devices, including smart phones and tablet computers. As a result, more automated and intelligent identification, collection and processing tools will continue to gain mindshare. These tools will enable targeted identification, collection and automated processing in a forensically sound, legally defensible manner.” Steve d’Alencon Case Central http://www.metrocorpcounsel.com/articles/16673/top-five-ediscovery-predictions-2012
“According to International Data Corporation (IDC) and EMC, the world’s information is now doubling every two years. In 2011 alone, we will create 1.8 zettabytes of new ESI. A zettabyte equals 1 billion terabytes. To put that in perspective, in 2009, the entire contents of the Internet was estimated at only half a zettabyte, which is equivalent to a stack of books stretching from the Earth to Pluto 10 times. The amount of electronically stored information we are producing also creates problems in managing, analyzing, searching and using it. This is called “big data.” Big data is already upon us and takes center stage in 2012. The October, 2011 McKinsey Quarterly posits, “Over time, we believe big data may well become a new type of corporate asset that will cut across business units and function much as a powerful brand does, representing a key basis for competition.” Unsurprisingly, if we are creating this much data, it will increasingly end up in litigation, regulatory requests and more, so big data becomes an issue in eDiscovery, too. According to IDC, “new capture, search, discovery and analysis tools can help organizations gain insights from their unstructured data, which accounts for more than 90 percent of the digital universe.” Many of these tools fall under the rubric of “big data analytics” and “business intelligence.” For eDiscovery, this means tools that provide enterprise eDiscovery dashboards that enable a business-level view of the costs, timeframes and risks of a single case or a multi-case environment so that better decisions can be made and better workflows can be implemented. It also means that we will continue to see new technology and tools, such as connectors to enterprise data sources, that enable processing and automation of large data sets. Big data requires measurement, and, it has been said that you cannot improve what you cannot measure. According to Enterprise Strategy Group (ESG) in a 2011 survey of corporate counsel, “Most organizations are not tracking e-discovery spending.” Furthermore, ESG found that, “While they expect e-discovery competency of their firms and consider it an important factor in selecting outside counsel on a case, less than one-third of respondents have ever tracked the productivity or efficiency of document review.” Steve d’Alencon Case Central http://www.metrocorpcounsel.com/articles/16673/top-five-ediscovery-predictions-2012
“2012 will unfortunately see no end in sight to advanced attacks resulting in data breaches, with attacks on mobile devices to ramp up significantly. In response the move to Big Data and data hoarding may reverse as companies in specific sectoral areas begin paring back on how much data they retain.” Richard Santalesa http://www.infolawgroup.com/2012/01/articles/information-security/a-handful-of-2012-privacy-security-predictions/

8) Ethan Fuld

Ethan Fuld will reach 1,000 Twitter followers, 10,000 Blog readers and will be recognized internationally for his e-discovery expertise and knowledge!

e-Discovery Management – From the Bottom up – Not From the Top Down

Posted on December 5, 2011 by admin

I have thought a lot recently about how to manage quality day in and day out throughout
all phases of the EDRM life-cycle (solely my own perspective – based on my experience, training, and background). While “quality” is difficult to quantify in
any business, in the e-discovery field where deadlines are tight, costs must be contained, cutting edge technology utilized, and where a single misplaced
search term could result in “inadvertent” privileged production. Quality by any
definition must not only be the goal but anything less can be catastrophic. To
achieve quality, I believe the following is a good beginning:

1) Empowered Project Manager: Critical to have one person who can manage and
facilitate each project from the start to completion. This person needs to have
the skills and training to bridge the gap between IT and legal worlds and
empowered to make the critical time sensitive decision. Ideally, the project
manager will encourage the personalities from the divergent fields to work
together and foster a culture of teamwork, mutual respect, and where a
democracy of ideas prevails.

2) Multi-Disciplinary Teams: By calling on all members from the legal, IT, and business worlds to do what they do best and ensure they have input throughout the process, teams can maximize efficiencies and cut down on costs. The best idea should win regardless of where or whom it came from. Ideally, a project manager and team would specifically be identified for each project.

3) Develop Processes: These should be developed and documented for the entire EDRM life-cycle. Again, these should be developed with input from the entire team. Don’t assume for example the legal side would not have valuable input for the data collection process. If nothing else, this is part of the continuing process of education for each discipline and development of a common language, cross training, and inter-department communication. While these are more big picture oriented, the next step is to develop check-lists for specific matter use.

4) Use Checklists: Like pilots and co-pilots before take-offs, or doctors and nurses in operating rooms, e-discovery teams can cut down on errors through the use of checklists. Even the most basic e-discovery procedures can be greatly improved by using check lists for each and every step in the EDRM life-cycle. This is especially
important given the tight deadlines and often non-linear nature of the e-discovery
world in practice. It is also important to have someone else go over the
checklists with the person running that particular process. Sometime it is easy
to gloss over a checklist as something that will “be done later.” Having someone go over the list with you can help spot any errors or omissions. It does not have to be the project manager who is your “co-pilot.” For example, someone from the data collection team might sit down with someone from the production side and go over the production
checklist.

5) Engage Stakeholders, Develop Budget and Timeline, and Identify Risks: By estimating, monitoring and controlling costs throughout the litigation life-cycle and communicating every step of the way, budgeting discovery and review costs becomes less difficult and more predictable. Good project management allows for more accurate estimates of potential costs at the beginning of a project. A key component to this is the client’s own involvement in communicating changes to the scope of a project, being open to discussion on how such changes affect the project’s budget or the initial pricing and estimates provided. It is crucial that project managers communicate clearly, to ensure they receive the information necessary to complete a project accurately, within deadlines and within budget. Experienced project managers defensibly track critical
project information throughout the litigation life-cycle.

6) Statistical Analysis: Statistical analysis should be used through all e-discovery phases. Use random data selection to test search terms, review quality, budget hypothesis, and collection strategy. Obviously statistical analysis is a field onto itself, but the most important use is randomness and follow-up. Once you objectively conduct statistical sampling it is important to follow-up on any data problems you identify. For example, you may only find one privileged document that was not captured but it is critical you follow-up to determine why that event occurred.

7) Post Mortem and Continuous Quality Improvement: Having proven and
tested processes and procedures are important. Continually improving, analyzing,
and adapting those procedures is critical. What works today might not work in
six months. Conducting an in-depth post-mortem after completion of every project, to determine what went wrong and should be improved, or to identify what went right for repetition is a critical final step in successfully e-discovery management. Understanding what worked and what did not, and addressing any issues or supporting the successes equips all parties involved to more effectively manage their next e-discovery project.
E-discovery should be viewed as a circle and not a line and the conclusion of
one matter should lead to the beginning of the next

Producing Spreadsheets in Native Format

Posted on October 26, 2011 by admin

Great discovery best practice is to produce spreadsheets in native format instead of converting to TIFF or PDF image. This can greatly reduce production costs and time. A 10,000 row spreadsheet can easily translate into thousands of imaged pages.

Primary reasons attorneys are reluctant to produce natively seems to be inability to Bates stamp each page and fear there are hidden notes or formulas that will be seen by opposing party. Documents produced natively will have cover slipsheet with a one page Bates number. If a spreadsheet is used at deposition or trial, the parties can generally agree on a page numbering or other identification system. Or, at that point the spreadsheet can then be imaged and each page Bates stamped. There are usually formulas associated with spreadsheets (especially financial spreadsheets). As far as I know these are as discoverable along with the spreadsheet. Less common is when there are notes in a spreadsheet that must be opened individually to review and are easy to miss (as is true with hidden rows or columns). Occasionally these notes could contain attorney client privileged information.

One other issue is what to do if a spreadsheet needs redactions (generally for confidentiality or responsiveness reasons). A native spreadsheet cannot be redacted in the traditional sense. It can be re-done to remove the information that should not be produced. Athough this will alter the document from when it was collected, this process should be ok as long as documented and will still be less expensive than creating TIFF Images, performing redactions, and then producing.

See article from the Bow Tie Law blog which provides a more detailed and better written explaination for producing spreadsheets in native format. http://bowtielaw.wordpress.com/2011/10/19/producing-excel-spreadsheets-as-tiffs/

Summary of Colorado 5th Annual EDiscovery Summit

Posted on October 13, 2011 by admin

Key speaker takeaways from the COALSP (Colorado Association of Litigation Support Professionals 5th Annual EDiscovery Summit that took place on October 7th, 2011 in Denver, Colorado

Monica Bay, Editor-In-Chief. Law Technology News. New York, New York

Underlying cause of certification debate is failure of law schools to educate students about real life law practice.
Will hear more about Information governance and risk management in the coming years. Ediscovery is child’s play compared to what compliance will become.
Other hot issues include retirement of boomers, social media and changing roles of CIO’s. Job potential for those that can bridge the gap between clients, law firms, and vendors.

Bill Hamilton Esq. Quarles & Brady. Tampa, FL

Future ediscovery liability will be negligence from search and review not as much on preservation.
Need to change culture of law firms away from command and control to better deal with ediscovery and become more team focused where the best idea wins. A team where everyone is equal, includes members from different areas and “Best idea wins.” cultural change. Not command structure. Collaborative ideas, develop a strategy and then test. Obstacle to team oriented implementation in law firms includes history of fragmentation and silos in law firms. Leads to compartmentalization and failure to recognize competence and excessive reliance on command and authority.
Bad vendor selections are made by habit, reputation, haste, pure command decisions.
JM v. McDermott shows large circle of potential ediscovery liability. Model rule 5.3- attorneys can delegate but need to supervise.

Cheryl Proctor Director of Client Services. Baker, Donelson, Bearrman, Caldwell & Berkowitz. Nashville, TN

Attorneys using more iPads for review but many select own mobile tools and want firm IT to make them compatible.
Believes in 5 years e-mail won’t be that critical. Social media, texts, IM’s, etc. will take place of e-mail.
Working towards having legal project management involved in every case.
Trends: Streamlining. Moving towards hosted solutions but sometimes question remains who is going to pay but can save money by culling and then shut down hosting solution.

Magistrate Judge Michael Hegarty US District Court, District of Colorado

In Colorado, 25 civil cases out of 3,300 cases filed actually went to trial (well under 1%). Attorney and expert expenses drive settlements – not ESI costs.
Ediscovery not a widespread issue for his cases. In about 95% of his cases the parties expect no ESI issues. He has 300-400 cases and about 1-2 ediscovery issues per year. When it is an issue it is a big issue and expense.
Does not trust attorneys when they say how much discovery is going to cost. He doesn’t think the lawyers are lying just not well informed on IT costs and capabilities. Will hold factual hearing for IT experts on both sides on costs and ESI availability. Technical people bets to determine what can and cant be done.
Does not believe Defendant has to pay for everything if discovery costs excessive. Sometimes though when seeking truth you need to get data even if expensive. Relevant information still needs to be turned over.
Has not seen rule 502 being used, Does believe in protecting data if inadvertently produced. Not going to be penalized if parties trying to cooperate. Use sampling.
Not sure on using predictive technology for privilege reviews.
Attorneys should come into scheduling conference with ediscovery protocols in place and Magistrate will almost always approve. Most magistrates encourage phone conference when discovery disputes arise and will often tell parties what they will usually do before a party files a motion.

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Electronic Discovery from a Management and Practical Point of View and topics of interest to me

Category Archives: E-Discovery Management