True Grit: Finding the Right EDD Formula

With LegalTech New York on our doorstep, we've putting our February issue of Law Technology News online a few days early. Around 5 p.m. EST tonight, it should be "live" at www.lawtechnologynews.com (scroll down to the "LTN Magazine" Box).

Check out our cover story about how BigLaw is trying to find just the right formula for handling e-discovery. We profile efforts at Littler; Winston & Strawn; WilmerHale; Fenwick; Pillsbury; K&L Gates; and several other firms. Littler's Paul Weiner is our "cover boy"!

Our EDD Showcase also includes Cecil Lynn III's annual Year in Review, analyzing the most important 2011 EDD opinions; Patrick Oot's Rules Road Map, explaining how EDD rules are amended:  and my report from Georgetown (yes, I know that was a while back, but the conference was the day after we closed the December issue!) And of course, Craig Ball's column, addressing how to cure over-preservation.

The print edition will be at the show — if you see me, I'll show you the unintended "Easter Egg" that made me laugh out loud when I got the magazine today. Hint: it's on page 75.

You can also listen to an interview with Weiner and Winston's John Rosenthal, on the February edition of my Law Technology Now podcast, which is already live at www.lawtechnologynow.com.

Cya at the Hilton New York!

LTNY Editors' & Bloggers Breakfast

A quick reminder that ALM will continue our tradition of our Editors’ Breakfast Tuesday, Jan. 31,  at 8 a.m., in the Petit Trianon room, at the Hilton — followed by our bloggers’ get together. 

David Snow, head of our ALM technology unit, will kick off the breakfast with a short report about ALM’s recent survey of vendors — we asked them how they see the current State of the [Legal Technology] Union. This is a great oppty for vendors and PR teams to meet “face-to-face” with editorial staff from our national publications and newsletters.  It’s free, no badges are required.

Finally, a reminder that Exhibit Hall/Keynote/Plenary session badges are free BEFORE the show, but cost $50 onsite. So if you have procrastinated, hit this website pronto.

I look forward to seeing you there!  If you have any questions, you can reach David at dsnow@alm.com.

 

Here Comes the EDD Tidal Wave at LTNY

More e-discovery vendors are announcing products and services ready for viewing at LegalTech New York.

• Ipro Tech reports that it is adding predictive coding, concept searching, and other features to its Eclipse discovery system.

• Recommind reports that it is updating its Axcelerate eDiscovery to be manageable through a single interface.

• Australia's Nuix is adding defensible data deletion to its suite of offerings.

Expect on-premise software versus the cloud; cloud data collection; and product compatibility and integration to be among the major e-discovery themes on the floor and at the show, blogs Enterprise Strategy Group analyst Katey Wood.

Read the full report from Evan Koblentz, "Second Wave of E-Discovery Products Targets LegalTech."

Patent Pilot Discovery: Tip of the Spear

Check out the LTN article "Patent Pilot Discovery: the Tip of the Spear," by Mark Michels, which reports on Federal Circuit Court of Appeals Chief Judge Randall Rader's keynote speech at Stanford Law School on January 18, 2012, on the Patent Pilot Program.

The U.S. District Court for the Northern District of California is one of 14 districts selected by the director of the Administrative Office of the United States Courts to participate in the pilot program, which is intended to enhance expertise in patent cases among federal judges. See Pub. Law 111–349 (Jan. 4, 2011).

According to Rader, the pilot program paves the way for the "patent system to lead to an economically defensible adjudication model" in the United States. Rader cites the Federal Circuit Advisory Committee's Model E-discovery Order (reported in LTN's article "The Elephant in the Patent Courtroom") as one component of the patent bar’s leadership in reducing discovery costs.

Rader is passionate in his view that reducing litigation costs by limiting discovery burdens through the patent pilot program is the most critical first step on the path to reforming patent litigation in the United States.

New E-Discovery Software Heads to LegalTech

Visitors to LegalTech New York's vendor floor can check out eagerly anticipated e-discovery releases.

AccessData is adding an early case assessment module to its Summation product, while Clearwell promises a more tranparent predictive coding. Other e-discovery players bringing out their wares include BIA, debuting social media collection for its TotalDiscovery.com, and bit-level litigation hold from Index Engines.

Check out the whole story, "E-Discovery Software Leads the Charge to LegalTech New York," from LTN reporter Evan Koblentz.

New Proposed E.U. Data Privacy Regulations

The European Commission today proposed a comprehensive reform of the data protection rules.

Two principal documents frame the new data protection regulations: A proposed regulation that would apply directly to organizations and individuals, and a directive that would provide the basic requirements for police and judicial cooperation in criminal matters.

This single law will do away with the fragmentation and costly administrative burdens of the current E.U. privacy regulations. The proposals will now be discussed in the European Parliament and E.U. member states meeting in the Council of Ministers. It is expected that the new proposed regulations will not take effect until sometime in 2014.

See the European Commission website for full details.

Image: Clipart.com

EDRM Projects Advance Industry Standards

On January 24, 2012, those of us at EDRM provided formal updates from five of the EDRM projects — Data Set, IGRM, Metrics, Model Code of Conduct, and XML. EDRM provides a common, flexible, and extensible framework for the development, selection, evaluation, and use of e-discovery products and services. The advancements in each of the following projects are designed to further standardize the principles and practices utilized in e-discovery management as follows:

• Data Set  The EDRM Enron Email Data Set version 2 is now a public data set on Amazon Web Services. AWS hosts these public data sets at no charge to the community in order to enable faster innovation by researchers across a variety of disciplines and industries. For more information about AWS public data sets, go to aws.amazon.com/publicdatasets.

• Information Governance Reference Model (IGRM)  The IGRM project team and ARMA International recently published a jointly developed white paper, How the Information Governance Reference Model (IGRM) Complements ARMA International’s Generally Accepted Recordkeeping Principles (GARP).

DIY "Do-It-Yourself" eDiscovery Services

Self-help e-discovery services in the cloud is a trend to watch at Legaltech.  DIY discovery gives users the ability to manage almost the entire e-discovery process through a SaaS model.  Everything from transfer, ingestion, applying filters, processing, ECA, review and production is controlled by the client in an easy to use interface.  The idea here is to give the customer 100% control of their data and full visibility to the entire process at a lower cost. 

To that end, Kroll Ontrack is offering Verve, BIA has TotalDiscovery and IE Discovery introduced eDiscovery DIY™. This trend is reflected in a 2011 Kroll Ontrack survey showing that more than 80 percent of corporations and law firms plan to turn to SaaS and cloud-based platforms in the next 2 years. 

The challenge is deciding when to use the new DIY processing model and when to let a vendor do the work. Whatever level of service you use, e-discovery is risky business and requires expert guidance. There is no such thing as an "easy button" -  yet.

The Story Behind Delaware’s Default Discovery Standard

Delaware has had default e-discovery standards since May 2004. LTN’s December 20, 2011 article Delaware's Default E-Discovery Developments, reported Delaware’s 2001 update to the standards.

One of the most significant additions to the 2011 Standard is an explicit proportionality provision. Other changes were designed to make the FRCP 26(f) conferences more productive. Today’s LTN post, The Story Behind the Delaware Default Discovery Standard, provides a look into the process and philosophy that led to these latest revisions.

Jones: High Court Rules No to Warrantless GPS Tracking

The U.S. Supreme Court today held that the Fourth Amendment prohibited law enforcement from using GPS devices to conduct surveillance on suspects without a warrant in the case, United States v. Jones.

The Jones case began in 2004. At that time, a federal and local law enforcement task force began investigating the defendant, a nightclub owner and operator, for alleged cocaine trafficking. As part of the investigation, the law enforcement officers attempted to locate co-conspirators the drug stash locations by conducting traditional visual surveillance and installing a camera near the defendant's nightclub.

Read full story here.

When Kids Hit the Road

The Ohio Supreme Court has, at times, been on the cutting edge of expanding Fourth Amendment protections for digital information from law enforcement intrusion. In December 2009, for example, the Ohio Supreme Court held that even if a cell phone is lawfully seized incident to arrest, the Fourth Amendment prohibits the police from searching the contents of the cell phone without a warrant. But in a recent opinion, State v. Gould, No. 2012-Ohio-71, the Ohio Supreme Court went in another direction.

The case arose in December 2005. The defendant, after losing his job, moved in with his mother.

Tom O'Connor Joins Avansic

Tom O'Connor has returned to the vendor-side of e-discovery, joining Avansic E-Discovery & Digital Forensics as director of professional services.

He will serve as "the primary consultant for complex cases, providing professional services supporting data identification and preservation with an emphasis on litigation hold obligations and preparation for FRCP Rule 26(f) meet and confer sessions," said Avansic's president and CEO Gavin Manes. O'Connor "will also be instrumental in developing strategies for corporate clients in all markets to help them be more proactive in controlling their e-discovery costs," said Manes. O'Connor also will support the company's marketing and sales efforts nationwide.

Read more about what O'Connor sees as his top challenges in the new gig, here, including why O'Connor compares Avansic to LexisNexis.

Image: My favorite shot of O'Connor, taken several years ago in New Orleans, at a conference co-sponsored by his Gulf Coast Legal Technology Center, which helps practitioners affected by hurricanes and the British Petroleum oil spill adapt legal technology.

Magistrate Judge Andrew Peck to Keynote ALSP Event

The Association of Litigation Support Professionals has announced that Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York — winner of the 2011 LTN Innovation Award for IT Champion of the Year — will be the keynote speaker at its annual conference, March 12 and 13, at the Sheraton New Orleans in Louisiana.

Read full story here.

Analysts "Rundown"

Amy Juers checks in to let us know about an upcoming "Analysts Rundown" panel, at LegalTech New York 2012, from 8-9 a.m. on Weds. Feb. 1, in Concourse A of the Hilton New York.

The "shoot-out" roundtable will feature analysts who cover e-discovery, information governance, and risk management, from four competing consultancies:

• David Horrigan (a former reporter for The National Law Journal and Law Technology News), now an analyst with The 451 Group.
• Barry Murphy, co-founder and principal analyst of the eDJ Group.
• Katey Wood, analyst at Enterprise Strategy Group.
• Christine Taylor, analyst at the Taneja Group.

"E-Discovery professionals (and consumers) often do not have a deep history in IT and frequently do not understand the value provided by industry analysts or the difference between the various firms," says Juers, CEO of Minneapolis-based Edge Legal Marketing, the sponsor of the session. The program, designed to help attendees understand the role of analysts and differentiate between the companies, will be moderated by Brad Blickstein, of the Blickstein Group, a consultancy that focuses on corporate law departments.

The free program is open to all attendees of LegalTech New York.

Image: Clipart.com

Personally Predictable Information

Being able to predict information from faces is the latest trend arising out of combining publicly available Web 2.0 data from social media with facial recognition technology. Researchers are now able to infer a person's age, interests, ssn, general health, etc., from their faces, by combining face recognition, data mining algorithms, and statistical re-identification techniques. This is called PPT — "Personally Predictable Information."

This technology can now be used to correctly identify individuals online (on a dating site where individuals protect their identities by using pseudonyms) and offline (in a public spaces — based on photos made public on social networks. Law enforcement agencies are looking at using the technology to conduct large scale real time surveillance at demonstrations, airports, and events. Persons in a crowd could be quickly identified, profiled and associated with others in the crowd based on their profile. (Sounds a bit eerily like the new TV show, Person of Interest.)

The convergence of face recognition technology and online self-disclosures using Facebook, LinkedIn, Yammer, Yelp, Twitter, etc. has serious implications for the future of privacy in an "augmented" reality world in which online and offline data seamlessly blend.  If this technology becomes too much of a threat to personal privacy, will we be able to "opt out" or  request  a "do not track"?

See Faces of Facebook: Privacy in the Age of Augmented Realty

New National Docketing Association

Following in the footsteps of metropolitan docketing groups, the National Docketing Association has been established to provide a networking forum for legal professionals in the private and public sectors, reports its president, Chris Gierymski, who is director of docketing at DLA Piper's Chicago office.

Read more here.

The Growing Mobile Forensic Headache

Trying to acquire and analyze data from over 5,000 models and clones of mobile phones, PDAs, and GPS devices is no easy task. The treasure trove of data they now contain — text messages, email, call history, databases, scheduler, contacts, files, GPS waypoints, etc. — make them high value targets in e-discovery and criminal investigations.

Because of the variety, complexities, and volume of data available on mobile devices, it is more important than ever that properly trained examiners and specialized tools be used to acquire the data, says Thomas Slovenski president of Cellular Forensics.

We are also seeing new consumer tools being developed to make it easier to perform data recovery. Paraben has developed a variety of consumer tools to recover data from mobile devices such as the Phone Recovery Stick which is a USB thumb-drive that will recover deleted and other data from your Google Android phone. They also have the iRecovery Stick (iRS) for iPhones as well.

Mobile devices are quickly providing all the discovery opportunities of a standard computer and providing evidence that is not available anywhere else. For that reason, attorneys should have a basic understanding of what a mobile device can hold, where it holds it, how long it stays there and how to go about acquiring the data safely.

2011 LTN Innovation Awards

The winners of Law Technology News' 2001 Innovation Awards will be honored at a ceremony at LegalTech New York, at the conclusion of the opening day keynote address at approximately 10 a.m. on Monday, Jan. 30.

You are cordially invited to attend the awards presentation (and keynote, and exhibit halls). To get a free pass, just visit the LTNY registration site here, but don't dally — you must sign up prior to the show (on-site registration runs $50 for that access). 

Come help us applaud this year's winners:

Champion of Technology: U.S. District Court Magistrate Judge Andrew Peck

IT Director of the Year: Craig Bingham, of Bass, Berry & Sims.

Most Innovative Use of Technology in:

• A Large Firm: Mallesons Stephen Jaques.

• A Small Firm: Ward and Smith.

• Corporate Law Dep't: John Deere.

• Pro Bono: Minnesota Legal Services Coalition.

Read more about the winners here!

 

Product News Brief #12118

This week's Product News Briefs includes two EDD listings:

• Nextpoint has launched customization features for its document coding and review tools.

• Symantec Buys LiveOffice for $115M and is expected to use the softwarea to put EDD applications in the cloud.

ALSP Annual Convention

United States District Court Magistrate Judge Andrew Peck — winner of the 2011 LTN Innovation Award for IT Champion of the Year — will be the keynote speaker at the Association of Litigation Support Professionals’ annual conference, March 12 & 13, at the Sheraton New Orleans.

Among the offerings are panels on forensics, litigation holds, mobile devices, career planning, certification, trial presentations, and more.

Further information: www.alsponline.org

Image: Monica Bay

Brussels EDD Sessions

Monique Altheim checks in to report that she will has organized and will moderate January 26  e-discovery sessions at the Computers, Privacy & Data Protection Conference. The three sessions address

• Principals of EDD in U.S. Civil Litigation
• Cross-border EDD in the European Economic Area
• Hot Topics in EDD

Speakers include consultants Chris Dale and George Rudoy, Amore Esteban (Shook Hardy), Natascha Gerlach (Cleary Gottlieb), Nigel Murray (Huron), and others.

Altheim is a lawyer admitted in the New York and Belgian bars. Her practice focuses on privacy; she is also the principal of EDiscoveryMap.  

Algorithmic Editing: Now You See It, Now You Don't!

To make a user's experience personalized, companies are using so called algorithmic editing to custom tailor retail shopping services, news, search, and essentially everything we do on the web to our personal taste.

For example, Facebook monitors which friends you click the most, and edits your profile accordingly. It decides for you which friends most likely interest you based on past interactions.

Google uses this same technology for search, which means two exact searches by different individuals will yield completely different results. It uses so called signals (location, computer used, IP address, etc.) to define you.  This information “filter bubble” is quickly defining our universe which unfortunately does not accurately reflect the real one. 

Becoming data literate is critical to understanding the value and limitations of algorithmic filtering like predictive coding in e-discovery. The danger is that the technology is giving us what it thinks we want to see; not necessarily what we should see. 

U. S. Supreme Court Decision Expected in Jones Case

The United States Supreme Court will soon issue a decision in the GPS tracking case, United States v. Jones.  A decision from the Supreme Court permitting the warrantless use of GPS devices by police will not end the conversation, however.  State courts, applying state constitutions, may continue to restrict the use of these devices by law enforcement.

Read more here.

Regional EDD Service Providers Take Center Stage in 2012

Regional litigation support service providers are growing due to increased demand for managed services, analysis and review and strategic ediscovery consulting. They are becoming highly competitive compared to the national and global vendors in terms of price and services offered. For example, Minneapolis-based NightOwl reported that it realized significant growth last year and expects the same this year - with managed services at the top of their list. Reasons for this include:

1. The ability for regional providers to partner with national software developers to offer "best of class" products such as Relativity and Clearwell allow them to concentrate solely on delivering service and expertise. This provides a distinct advantage over national or global companies that split their attention between software development, service and focus points outside of litigation support.

Advancing the Technology Assisted Review Discussion

A rigorous ediscovery search analytics discussion continues to advance our understanding of technology assisted review.  Herb Roitblat’s recent post “On Some Selected Search Secrets” is a very thoughtful response to Ralph Losey’s exceptional blog series, the “Secrets of Search.” 

Roitblat’s punch line is interesting.  He writes that the current studies by TREC and others “were not designed to answer many of the questions we would like to ask” and that more studies are needed that address technology assisted review effectiveness.  Nonetheless, he concludes, that in some cases “human review is simply impractical within the cost and time constraints of the matter. Under those circumstances, something else has to be done to reduce that burden.”  That “something else” is technology assisted review.

Resolution Talks Fail in 'Pippins v. KPMG' Discovery Agreement

Update, 11:45pm: There won't be a resolution anytime soon. Read the article here.

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A possible resolution to the controversial discovery dispute in Pippins v. KPMG, in which KPMG's counsel hoped to communicate with Judge Colleen McMahon yesterday, has not been resolved after all.

The dispute, by now familiar to all in the legal technology tribe, is about how many computer hard drives to evaluate. Pippins' side won a Nov. 2011 ruling by magistrate Judge James Cott in favor of using all available drives, while KPMG appealed to use 100 sampled drives. The decision caused an uproar and KPMG appealed.

Steven Catlett, of Sidley Austin for KPMG, formally asked McMahon for communication by close-of-business yesterday. "The parties have... initiated a discussion as to whether... the parties can reach a resolution of the discovery issue," he wrote in a memo.

However, "There's been no action taken," Catlett told me today, from Chicago. "We're waiting to hear from her."

Pippins' counsel at Outten & Goulden did not respond to requests for comment.

The EDD Update and Law Technology News team will continue following this closely.

- Evan Koblentz

Dodging a Bullet (For Now)

No Harm, No Foul for Data Destruction: Check out "The Risks of Failing to Preserve Patent Prosecution Files," an article I wrote for LTN's website. It discusses a unique patent litigation remedy for spoliation claims. In Metso Minerals, Inc. v. Powerscreen International Dist., Ltd, the plaintiff delayed filing its lawsuit for more than six years, raising a laches defense that would have significantly limited patent damages. The defendant claimed it suffered “evidentiary prejudice” because the patent prosecutor destroyed his files. The court ultimately rejected the laches defense.

The plaintiff dodged a bullet but risked a substantial damages limitation because the patent prosecutor destroyed his files. Metso is currently on appeal to the Federal Circuit.

Update on KPMG / Pippins

First the Lexis/Applied news, and now this: KPMG may be close to settling with Pippins. Once again, stay tuned!

Breaking News: Lexis Sells Applied Discovery

This just in: Lexis has sold Applied Discovery to Siris Capital Group. Lexis bought Applied in 2003.

"Regardless of how 2011 turned out, you now have a clean slate to build upon in 2012. And, while we are on the topic of clean slates, we are thrilled to report that we are beginning the year afresh too, as an independent company," wrote Applied's Jon Resnick, worldwide vice president for field operations and marketing, in the company's weekly newsletter.

"Siris Capital Group has taken Applied Discovery private from LexisNexis (with LexisNexis' parent, Reed Elsevier, retaining a minority interest)," Resnick continued. "As friends of our company, we want you all to know that business will be as usual through this transition, which is happening incredibly smoothly."

Stay tuned to the Law Technology News homepage for the full story later today.

Sherlockian Andrew Peck

U.S. Magistrate Andrew Peck is featured in today's Wall Street Journal, in an article about the pending five-day celebration of Sherlock Holmes' "suspected" birthday on Jan. 6 (about 500 folks are expected to participate). Peck is a member of the invitation-only "Baker Street Irregulars, who gather in New York to discuss all things Conan Doyle. Check out Jo Piazza's story here (subscription required) or on page A-17 of the paper version.

Photo: Natalie Keyssar for The Wall Street Journal.

Happy New Year!

Shakin' off the holidays, back at work! As we gear up, just a quick reminder that if you are a vendor planning to launch a new product or upgrade at LegalTech New York, be sure to reach out to Evan Koblentz (ekoblentz@alm.com) today — as we are in the final stages of preparing our "sneak preview" for Law Technology News magazine (it will be distributed at LTNY).

And watch this space, I'll soon be announcing the winners of the 2011 LTN Innovation Awards!

Hope you had a refreshing vacation. Happy New Year!

Image: Clipart.com

The Successful Service Provider in 2012

Thomas Palladino, president of NightOwl, a Minnesota-based data management services provider, identified four key values e-discovery vendors are focusing on in 2012.

1. Smart document review combining analytics, predictive coding and attorney review services to reduce the cost and time involved in document review. 

2. Certified e-discovery specialists by the ACEDS organization. We will see more vendors adopting an objective standard of employing attorneys as project managers. 

3. Enhanced EDD security using two-factor authentication for all hosted platforms providing a stronger defense against unauthorized access.

4. Integrated managed services as an internal e-discovery system. Corporations will use vendors that are qualified to support a variety of existing technology, fully understand litigation and the eDiscovery process, and can offer full EDD services from cradle to grave.

Looking forward to New York Legaltech in February for an exciting first look at ediscovery in 2012!

Non-lawyer Perspective

Some perspective on e-discovery from non-lawyers.  Dr. Carolina Klien, a forensic psychiatrist from Saint Elizabeth’s Hospital in Washington, D.C., recently published an article in the Journal of the American Academy of Psychiatry and the Law entitled, “Cloudy Confidentiality: Clinical and Legal Implications of Cloud Computing in Health Care.”

Klein confirms what we know in her abstract: “Privacy laws that speak to the protection of patient confidentiality are complex and often difficult to understand in the context of an ever-growing cloud-based technology.” She highlights the challenge facing physicians:  “Just as information management in the digital era was finally getting worked out in legislation and practice, a new modality appeared, one that physicians may be ill-prepared to accommodate.” 

The challenge facing physicians is to adopt cloud-based computing to HIPAA. The attraction of cloud-based computing for medical providers is increased access to patient data through a centralized system. 

Happy Holidays

As the holidays approach, I wish you joys small and large, noise soft and loud, lights bright and quiet; enough silence; an abundance of kindness and as little anger as possible; music always; and at least one heaping spoonful of peppermint ice cream.

P.S. Here is my favorite holiday card of 2011. I'm just evil. :) 

Image: Clipart.com

Mobile Security - Tips to Safeguard Your Devices

Mobile devices pose significant risks for sensitive corporate information. As lawyers become more dependent on mobile devices for their practice, they need to be cognizant of the significant security risk these devices present.

ViaForensics recently released its latest 80-page Mobile Security Risk Report.  Both the Android and iPhone risk is amplified by the fact that these devices tend to hold personal information for a long time by design, i.e, nothing is ever truly deleted.

Mobile devices have become easy to hack by remote exploits due to all the applications loaded on them. Hackers can now remotely jailbreak and root a device over the network which essentially provides the hacker with unrestricted access to the entire file system of the target mobile device.

The rush to develop user friendly apps has been at the expense of security. These apps collect and store a tremendous amount of information.  Even apps that appear to ask for no permissions during installation can become a back door to your phone. Check out appWatchdog for an objective analysis of various publicly available mobile apps.

Encrypting information on your device is not foolproof because encryption on both the iPhone and Android can been broken with minimal effort. Additionally, it is not that difficult to extract data from a passcode protected device as well.

To protect your mobile privacy:

1. Be cognizant of what you install on your phone and who the company is that makes the app.