EDD Update

What do you call someone who gets the lowest passing grade on the Bar exam?

Guest lecturing at an e-discovery class at UT Law School today left me feeling a tad discouraged.  I'd covered the fundamentals of data storage, the broad components of an enterprise IT environment, Unicode and a bit about keyword search.  In 50 minutes, there's only so much I can do, and with little depth or nuance.  Afterward, a third-year student in the class confided that he'd thought I'd gone pretty far "into the weeds" and wondered if he would really need to know this stuff.  He asked why he couldn't just hire someone to handle the e-discovery issues in his cases.

Clinching the Concept of Concept Search

As a frequent speaker, I live for the "aha" moment that lights the eyes of an audience.  It's that magical turning point when you've made a daunting technical topic accessible.  You can almost hear the, "Thank you, thank you, thank you, for making something I've long wondered about but never fully grasped clear to me." 

Yesterday, at an e-discovery conference in Austin, I watched Ed Fiducia of Inventus earn his "aha" moment describing concept search.  It's a challenging topic--one that entails shoving a host of different approaches under a broad rubric, and more math than the average lawyer wants to recall.  Then, explanations are often laced with--or should I say lacerated by?--marketing-speak.  But Ed hit the bull's-eye.

Re-Visiting Biller v. Toyota

I blogged about this Federal 9th Circuit case a few months ago and at the time commented, "This is one to watch."  Well, it's time to watch.  The gist of the case involves a former Toyota attorney accusing the firm of spoliation related to data on defects. 

As the "gas pedal" issue has become prevalent, this case takes on new meaning.  Here's what I wrote about it back in September, and an update I posted earlier today:

From September 24, 2009

Today's update

LTNY: T-Minus 12 h

       

I've just navigated the chaos that is the LegalTech vendor floor (see photos, click each for larger images) and, after more than a decade watching these shows take shape on both coasts, I still marvel at how this mess morphs into the polished event that will emerge in a few hours.  It's going to be a great show for the vendors.  I can't predict the traffic won't be off in sheer numbers of warm bodies, but those who come will have budgets to buy that were nowhere to be seen last year.  Everyone tightened belts, but those compelled to do more with less now face doing more with less...that's now a year or two past its prime.  The fear factor has dissipated (even obscene Wall St. bonuses are back and Ford's turned a profit), so the checkbooks are coming out.  

#LTNY Next Week!

We've all been in high gear getting the final touches done for LegalTech NY next week. I can't wait!

Among the highlights will be our LTN Awards party Monday night 2/1 at 6 p.m. Tix are still available: contact lsharpe@alm.com. They will also be available at the Sales Office on third floor of Hilton Monday.

We also will hold our traditional "Editors' Breakfast" and Bloggers Breakfast on Tuesday 2/2 at 8 am and 9 am. in the Petit Trianon room. Everyone's welcome! It's a great oppty for vendors and public relations folks to meet with ALM's editors.

CYA at the Hilton!

Webinar Examines Legal Hold Myths & More

To listen to a webinar recorded on January 26, 2010 at 2:00 p.m. EST, which examined common misconceptions about legal holds using recent case law, including an analysis of U.S. District Judge Scheindlin’s recent Pension Committee opinion, click here.

John Jablonski (author of this blog and Seven Steps for Legal Holds of ESI and Other Documents) and Brad Harris (author of 12 Myths About Legal Holds) will look at problems that are frequently encountered within organizations that are failing to implement reasonable and good faith efforts when it comes to executing legal holds for discovery and tackle Judge Scheindlin's recent opinion requiring implementation of a written legal hold whenever litigation is reasonably anticipated.

To download a detailed analysis of the Pension Committee decision, click here.

Judge Scheindlin Correction to Pension Committee" Opinion

On January 11, 2010, Judge Scheindlin issued a landmark ruling on sanctions - The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al. Lexis was the first to pick up on it and published the Order on January 13th. See:  2010 U.S. Dist. LEXIS 1839. I  wrote a lengthy blog on the new case, which I published on January 17th. Then today, on the 18th, I was just advised that Judge Scheindlin issued an Amended Order on January 15th, which makes several revisions to the original Order.

Honoring Martin Luther King

Today,  we take a day to reflect on the dreams and accomplishments of Martin Luther King Jr.

Here are a few links to frame the day:

• MLK's Nobel Prize biography (and photo, right).
• Wikipedia biography.
• The King Center.
• "I Have a Dream" speech (YouTube).
• James Taylor's "Shed a Little Light" and the lyrics.

Have a restful and inspiring day, and let's all find the opportunity to do one unexpected act of kindness on today.

Fiat lux.

Doctors v. Lawyers re: e-Documents

The American Recovery and Reinvestment Act of 2009 allocated $19 billion to help doctors and other health care providers buy and install electronic health record systems, with the agenda of creating an integrated national Health Information Network to improve health care and reduce costs.

Robert Hudock and Jason Christ, both senior associates at Epstein Becker & Green, take a look at how the health care system compares to the legal industries adoption of e-discovery collection and production practices, in "Electronic Discovery: A Special Report," in The National Law Journal (registration required).

Craig Ball: EDD For Everybody (a.k.a. The EDna Challenge)

Most discussions about e-discovery focus on big firm, big budget litigation, but even small cases involve electronically stored information. What's a small firm attorney to do when she faces the courtroom with a relatively small matter?

Craig Ball comes to the rescue with the help of key players in our legal technology community. In "EDD for Everybody," Ball sets up a hypothetical case. In it, "Edna" who is handling a construction dispute, anticipates that the number of possible files will be somewhere between 50,000 to 100,000 items.

What advice would you give? See what your peers (you'll recognize a lot of folks from this blog!) suggest in the EDD Showcase in the January edition of Law Technology News.

John Jablonski: End Game

Terminating legal holds is easier said than done, says John Jablonski. But it's also "an essential part of a defensible legal hold business process."

In "End Game," Jablonski, a partner with Goldberg Segalla, and co-author of ARMA's new book,  7 Steps for Legal Holds of ESI and Other Documents, says that "timely release of legal holds can help corporations escape from the legal hold purgatory."

To find out more, check out the January e-discovery showcase in Law Technology News.

Cecil Lynn: Back to the Future

It's been three years now since the electronic data discovery rules were added to the Federal Rules of Civil Procedure, and the number of reported cases involving electronically stored information has skyrocketed. But some lawyers still "simply do not anticipate (or woefully underestimate) issues related to ESI," says Cecil Lynn, of counsel to Ryley Carlock and Applewhite.

In "Back to the Future" in the January issue of Law Technology News, Lynn chronicles key 2009 rulings, finding that most of them are reiterating established principles. Lynn looks at everything from the increasing clarion for "cooperation," and issues around form of production, to failure to preserve, sanctions, discovery abuse, and more. It's part of our EDD Showcase.

Want more? Check out our Law Technology Now podcast, where Cecil Lynn joins me as a guest to further explore the 2009 EDD rulings -- with a special bonus: a cameo appearance by ALM's Henry Dicker, who offers a sneak preview of LegalTech New York.

Ball in Your Court: "EDD Bill of Rights"

In January's Ball in Your Court column, Craig Ball argues that it's time for a "Bill of Rights" for requesting parties who seek electronically stored information from their opponents. Requesting parties, he insists, have rights -- and duties -- during litigation.

Among the rights, says Ball, an Austin, Texas-based attorney and forensics consultant, is that ESI be produced in the format in which it is kept in the usual course of business; and that the producer clearly and specifically identify any intentional alteration of ESI.

Among the duties: an obligation to anticipate the nature, form, and volume of the ESI under scrutiny, and tailor requests to minimize burden and cost of securing the data. Read more in the current issue of Law Technology News.

Craig and I will be speaking Thursday (Jan. 21) at the New York City chapter meeting of Women in E-Discovery. It will be held at noon, at Credit Suisse, 11 Madison Ave., floor 2B, in the Club room.

To RSVP please visit newyorkcity@womeinediscovery.com. We hope to see you there!

Zubulake Revisted

 Whatever the new media version of "EXTRA! EXTRA!" READ ALL ABOUT IT!" might be, imagine me doing it.  Federal Judge Shira Scheindlin, famously of the Zubulake decisions that were the crucible of modern e-discovery practice, has done it again.  In the course of an 87-page opinion and order, Her Honor invokes the only line anyone ever remembers from George Santayana and sanctions 13 plaintiffs for negligence and gross negligence in connection with their--ahem--'lackluster' preservation of and search for ESI. 

The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., U.S. District Court, Southern District of New York, January 10, 2010)

Blurring the Line Between Archiving and EDD...

My review of Mimosa NearPoint ran on Law.com last month.

Mimosa didn't originally come to market as an e-discovery provider. Mimosa NearPoint was built and designed as a robust archiving system for e-mail and electronic files.

I continue to maintain that the future of e-discovery does not lie in more advanced document review and analysis capabilities. Instead, the focus must "shift to the left" of the EDRM if e-discovery is ever going to stabilize as an integrated workflow in corporate America.

Unfortunately for lawyers, that "shift to the left" involves concepts and acronyms that are completely foreign and terrifying. Lawyers didn't go to law school to learn about "enterprise content management" or "electronic records management."

The answer, however, is not to ignore technology or vainly posture around the problem. Instead, lawyers must find a comfort level in discussing these concepts. Lawyers don't need to become database administrators, but e-discovery now requires a higher level of accountability in understanding how society uses technology and how corporations manage data.

Mimosa NearPoint is a well-respected product in the IT world for archiving data - a completely non-legal task that has always been maintained by IT professionals. When you add Mimosa's eDiscovery Option to the NearPoint environment, it creates a powerful tool for indexing and organizing e-mail and file systems so that the data can be properly identified, collected, and preserved.

As the world of e-discovery continues to evolve, we will see more products like Mimosa NearPoint make a successful "bleed-over" from traditional IT administration to e-discovery.

"NearPoint Archives E-Mail for E-Discovery"

Court Finds $834,285 to Process ESI Extravagant, Issues Sanctions

In a must read decision for attorneys, consultants and ediscovery vendors, the Court in a well-written opinion chastised and awarded attorney fees and costs against the defendant whose IT representative "exaggerated" the cost of processing ESI.

Starbucks Corp. v. ADT Sec. Servs.,2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009).  In a breach of contract and fraud case, Starbuck's brought this action based on ADT's installation of  proprietary security systems in violation of the contact between the two parties.  After filing the action, Starbucks filed a motion to compel to obtain archived e-mails from the defendants. The Court discussed in detail ADT's archived e-mail systems involving the storage of e-mail from 2003 - 2006. ADT argued the system was was "so cumbersome, . . . that it is not 'reasonably accessible because of undue burden or cost.'"  ADT argued it was not accessible because of their selection of an archiving system that failed in its essential function of allowing ESI to be searched. . . . (read more).

2009 Socha-Gelbmann EDD Survey Report Available

The full 2009 Socha-Gelbmann Electronic Discovery Survey Report is now available for purchase.  For detail, please contact George Socha (george@sochaconsulting.com, 651.690.1739) or Tom Gelbmann (tom@gelbmann.biz, 651.483.0022).

We are in the final stages of preparing the participant report and will be distributing that to participants in the near future.

Did We Really Need EDD Procedural Rules?

Mistakes are, after all, the foundations of truth, and if a man does not know what a thing is, it is at least an increase in knowledge if he knows what it is not. - Carl Jung

Three years later - did we really need to amend the federal rules for ediscovery?  On December 1st, 2006, changes relating to “electronically stored information” (ESI) in the Federal Rules of Civil Procedure took effect. The changes to Rules 16, 26, 33, 34, 37, and 45 provide mandates to the preservation, discoverability, production, accessibility, and costs associated with ESI which includes e-mail, word processing documents, spreadsheets, voice mail, databases and more.

Over the last 18 years I have been writing on how to apply technology applications to the practice of law and eight years ago I began my initial research of court cases and procedural rules focusing on discovery of electronic information.  During that time the amended ediscovery federal rules were being proposed and hearings held across the country to determine whether the procedural rules should be changed to adapt to the digital world. I remember sitting through a proposed amendment discussion at Fordham University thinking “what technology has wrought – technology will solve.”   In fact, during all my presentations over the last several years, this has been one of my closing comments. (Read more . . . )

Delatio Electrics (by Babs Deacon)

I turn the mic over to Babs Deacon, director of consulting at  Integreon, for a guest post: 

Whether  e-discovery is in its infancy or toddlerhood, it will never get the respect it deserves until it has its own Latin phraseology.  New Year’s 2010 seems like a good time to initiate a set of ediscovery terms that Cicero might have used had he been litigating today.

Think just how forceful you’ll sound at your next 26(f) when requesting opposing counsel’s production in forma ingenitus  - in native form, or backing up your request by saying, “Nativus Ipse loquitor.”  The native file speaks for itself, to the judge.

Conversely, a strong, classical stance may just what you need to avoid sharing any native meta data, with the assertion, “Proferabo solum saxibus.”  I shall produce only in tiff.

Naturally, a motion for sanctions requires the strongest language.  Referring to the responding party’s mangled data as, spoliatus in extremis, will really make an impression and tossing out the phrase, Misura Quinta – Hash5 sounds cutting edge and traditional.

Don’t forget that after hours, a little satire will impress colleagues, drop “Quis iudicat Iudicem Grimm ipse?” at the next Sedona cocktail party.

Craig & Monica 2 Speak at Jan WiE NYC Mtg

Attorney/special master Craig Ball et moi  will be the featured speakers at the January 21 meeting of the New York City chapter of Women in E-Discovery. It will be held at 12:00 noon, at Credit Suisse, 11 Madison Avenue (Floor 2B-Club Room).

The topic: "2010 EDD Oddyssey" -- a review of 2009 trends and a predictions for 2010.

Hope you can make it!

RSVP: newyorkcity@womeninediscovery.com.

I will also be speaking for the New Jersey WiE chapter meeting on February 16, at 5 p.m. in Latham & Watkins' Newark office. Watch this space for more 411!

Upcoming Webinars

Several of you have pinged me about upcoming webinars:

• Fios: Debbie Caldwell advises that A Roadmap to e-Discovery Cost Control will air Tuesday January 19, 2010 01:00 PM ET (60 minutes).

Explores the critical paths to cost control in each phase of the Electronic Discovery Reference Model, with emphasis on processing, review and production. Speakers: Chris Gallagher, senior vvice president, managing director,  Ajilon Legal, and Chris Wilen, Fios’ solution design architect. Target audience: Corporate lawyers and outside counsel.

411 here. 

• The Organization of Legal Professionals: Cherie Estrin reports on these programs:

Offshore Legal Outsourcing, the Ethical Implications: Covers ethical, liability, and security risks associated with the outsourcing of both non-core and higher-value legal work overseas. 1 hour of MCLE Ethics credit. January 14, 2010, 1:00 pm Eastern.

Adobe Acrobat for Legal Professionals. Review of essential information specifically for use in the legal field. January 13, 2010, 1:00 PM EST.

Guidance EnCase Portable Honored

Dale Legaspi checks in to advice us that Guidance Software’s EnCase Portable has been named the winner of the forensics category of the Cygnus Law Enforcement Group’s 2009 Innovation Awards.

Press release here

Joyful Noise

Is it really possible that 2009 is just about over? Doesn't it feel like we were just welcoming this year? We've certainly been on an interesting journey over the last 12 months. (As in the Chinese curse, "May you lead an interesting life.")

But we move forward, hopefully with a dash of courage and gusto. So on behalf of our entire Law Technology News and Law.com team, and our mothership ALM, let me extend our warmest wishes to you for the holiday season.

May the remaining days of 2009 nurture spirits, refresh enthusiasm, enhance vision, inspire experiments, mute distress, challenge boundaries, generate relationships, temper irritations, magnify flavors, provide noise and quiet, and accelerate joy.

Chase Bank Criticized Re: Alleged Expenses for 3P Subpoena

Matter of Klein v. Persaud, 2009 NY Slip Op 52582U, 2 (N.Y. Sup. Ct. Dec. 21, 2009).

In this arbitration case, Chase Bank, a third party, sought expenses of $9,112.00 "for production expenses ($4,550.00 for time spent locating and retrieving documents and $4,562.00 for printing). The Court reduced the amount to "$1,192.10 for time spent locating and retrieving documents and $58.17 for printing 1,939 pages of documents."

The Court noted that. "[t]wo CPLR Rules deal with production costs for a non-party. CPLR Rule 3111 states that a deposition subpoena may 'require the production of books, papers, and other things in the possession, custody or control of the person to be examined to be marked as exhibits, and used on the examination. The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.' CPLR Rule 3122 (d) allows a non-party witness to provide, unless specifically directed to provide original documents, 'complete and accurate copies of the items to be produced.' Further, '[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.' Production costs can include providing electronic discovery, such as e-mail."

The Court also noted that:

Holiday Greetings and a Tasty Tech Tip

It's Christmas, and from frigid Berlin, Germany, I wish all EDDUpdate readers and contributors a happy and safe holiday.  I hope you are warmly ensconced with families, friends and loved ones, enjoying your favorite foods, games, movies, stories, drinks...and e-discovery websites.  

Though post traffic has been sparse of late, and a bit of filler might be welcome, I don't want to set the bad precedent of personal greetings as posts; so, what follows is a technology tip I think you'll find useful, and that I hope serves as a not-too-transparent excuse to wish all a Merry Christmas, (belated) Happy Chanukah, Keen Kwanzaa, Festive Festivus or whatever you're using as a reason to celebrate and eat and drink to excess.

So now for the technology tip: food-themed, in recognition of the holiday.  

Court Rules Mistaken Transmission Did Not Result in Waiver

Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)

When responding to an email communication from his attorney, defendant mistakenly sent his message to a third party.  As a result, the email was eventually provided to opposing counsel in the litigation.  Plaintiff’s counsel refused to return the email upon defense counsel’s request and filed a motion for a protective order to which the email was attached.  Defendants then filed a motion to exclude plaintiff’s use of the email.  Defendant David Muhs explained that the mistaken transmission occurred when the autofill feature on his email program supplied the wrong address in place of that of the intended recipient.  Conducting its analysis pursuant to Fed. R. Evid. 502, the court determined that privilege had not been waived.  Continue reading here.

Best Form of Production Is PDF... AND Native

For those of you who thought you'd made up your mind whether TIF or PDF is better than native files, another option: PDF with native files embedded. A recent article by John Martin outlines how embedding native files using PDF/a specifications appears to provide the best of both worlds -- a fixed image-type representation with page-level control sequences possible but also with the ability to open the native files and explore spreadsheet formulae, etc. One of the details: using the hash value of the embedded file as the name of the embedded file, but using a Bates sequence for the name of the PDF. See the article in the recent ALSP Update at bit.ly/FormProduction. A reprint is available at http://bit.ly/FormPrdctn2 and a sample of a PDF with an embedded file is available at http://bit.ly/PDFwNative.

Supreme Ct Accepts E-Communications Privacy Appeal

The U.S. Supreme Court has agreed to hear an appeal concerning privacy rights to electronic communications. The case comes out of the  Ninth Circuit: Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). It involves an employer reading an employee's text messages, sexy ones at that, where the Ninth Circuit ruled for the employee. The Supreme Court could use this appeal as an opportunity to write an opinion that not only broadly impacts privacy rights of all U.S. citizens, but also impacts employee rights, public record disclosure duties, and the scope of electronic discovery. I have written about this case and the privacy rights issues many times on my blog, and am delighted to see the Supreme Court is willing to take a look at this area. My "emergency blog" post this week, right after the Supreme Court's announcement that it would accept certiorari, talks about the Quon case, the Court's acceptance, and how it might rule. (By the way, I finally have an easier to remember domain name for my blog: e-DiscoveryTeam.com.)

Stubborn vs. Stupid Redux

Sometimes, I wonder how a whole bunch of people with advanced degrees can be so darn obtuse, with the result that a lot of time and money is wasted.  I blogged on State v. Dingman, 149 Wash.App. 648, 202 P.3d 388 (Washington Court of Appeals 2009) in March in what I regarded as one of my better posts of the year.  I'd forgotten all about it until I saw a blog post about the same case featured on today's Law Technology News website.

The featured post was from law professor Susan Brenner's CYB3RCRIM3 blog (that's leet-speak for cybercrime, of course).  Professor Brenner offers no comment about the Dingman decision except to say, "I could have entitled this post 'battling computer forensic software programs.'”  With respect to the professor, whose blog is a useful and interesting read, professionals in the computer forensics arena are as likely to refer to Ghost as a "computer forensic software program" as the American Medical Association is to call the game Operation a "surgical training simulator." 

Read Professor Brenner's post, but please read mine, too. If you don't,  it's hard to fully appreciate just how deeply embedded were heads in hinds in the Dingman matter.  Shame redux.

Broadcom Charges Thrown Out

The National Law Journal  reports that a federal judge has thrown out all criminal and civil charges related to the stock options backdating scandal at Broadcom Corp. amid accusations of prosecutorial misconduct. 

Here's the first version of the story: 

Great New Site: The eDiscovery Reading Room

The good folks over the The Posse List have recently launched their latest and greatest contribution to our industry: The eDiscovery Reading Room.  I find the site to be really well put together with a plethora of information for you at your disposal.  The site is broken up into several categories:

• Top Stories
• Electronic Discovery 101: Where to Start
• Corporate In-house E-Discovery: Some Basics
• Weekly Top 10 E-Discovery Articles
• Webinars
• And last but not least, an e-discovery blogroll WITH commentary on each blog.  Here is what they say about  EDD Update:

"A joint project of Law Technology News and Law.com Legal Technology, this is the place you go to find out what is happening across the e-discovery vendor landscape: who has partnered with who, what law firm chose what vendor, new versions of software and products, awards and accolades, breaking news, etc.

Searching for Justice: An Immodest Proposal

"We jump through hoops to do discovery," says attorney and guest author Julia Brickell of H5, and it has become a normal course of action. But are we wed to it? And if so, is it time for a separation? Read more.

Triggering Events, Legal Hold & No Sanctions

Well written decision determining triggering event for legal hold and finding no sanctions since e-mails destroyed were not found to be relevant and conduct was negligent, not grossly negligent. http://www.elawexchange.com/cases/Scalera_2009.pdf.

Cross-reference:

• Arkfeld on Electronic Discovery and Evidence

(2nd Ed.), § 7.9, Litigation Hold and Sanctions

2009 LTN Awards: Craig Ball Named Consultant of the Year

Envelope Please: I am delighted to announce the recipients of the juried 2009 LTN Awards (The vendor award winners will be announced separately in the near future).

Before we open the envelope, a round of applause please for our jury: Andrew Adkins III (Levin College of Law, University of Florida), Fredric Lederer (William and Mary Law School), and David Whelan (Law Society of Upper Canada).

The winners are:

• IT Director of the Year: Steve Fletcher (Parker Poe Adams & Bernstein).

• Champion of Technology: Tom Baldwin (Reed Smith).

• Most Innovative Use of Technology by a Law Firm: Tom Baldwin (Reed Smith) (First time we've ever had one firm/individual win in two categories -- the judges were impressed!).

• Most Innovative Use of Technology by an In-House Legal Department: Chad Anson (Dell).

• Most Innovative Use of Technology During a Trial: Khmer Rouge Trial Team (Cambodia Tribunal);

• Most Innovative Use of Technology For a Pro Bono Project: Lynn Burns (Pro Bono Law Ontario).

• Consultant of the Year: Craig Ball.

And I have selected the inaugural winners of the LTN Lifetime Achievement Award: John Alber (Bryan Cave), Thomas Burke (World Software), and M. Thomas Collins (formerly of Juris).

Congratulations to the winners! Watch for more coverage in the February and March editions of Law Technology News, and on our newly upgraded website.

HTCIA Asia Pacific Chapter Training Conference

I'm still trying to recover from jet lag after my return from speaking at the HTCIA Asia Pacific Chapter Training Conference in Hong Kong.  The HTCIA is the High Technology Crime Investigation Association, the world's largest association of computer forensic examiners.  Though it has a decidedly law enforcement bent--to the point of forbidding its members from assisting in the defense of criminal cases--there are probably as many non-law enforcement members in the group as cops.  Accordingly, there's been a growing interest in electronic discovery among the ranks of computer forensic examiners, particularly since the local forensic examiner is often the only competent "e-discovery service provider" willing to take on smaller matters involving electronic evidence.