Judicial Conference Submits Proposed New Evidence Rule 502 to Congress for Enactment

On September 27, 2007, the Judicial Conference of the United States submitted proposed new Evidence Rule 502 to Congress through identical letters to the Committee on the Judiciary of the United States Senate and the Committee on the Judiciary of the United States House of Representatives.  The letters provide a description of the process that led to the proposed rule, an explanation of the problems sought to be addressed, the protections against waiver of privilege or work product afforded by the proposed rule, and drafting choices made by the Advisory Committee on Evidence Rules in crafting the language of the proposed rule.  The Judicial Conference recommended that proposed new Evidence Rule 502 be adopted by Congress “as a rule that will effectively limit the skyrocketing costs of discovery.”

Hints for New Visitors

Quick tips on how to use our new blog:

• The main reading area is set up "clearinghouse" style, with pithy "intro" posts so you can skim content to find posts of value to you. Long posts have a "continue" link to get behind the curtain to read the post in its entirety. 

• "Categories" (right nav bar, under our list o' stellar authors) is a nifty tool that helps you sort posts by content type.

• "Typelists" (right nav bar) offers lots of links -- "Darwin" news; hot cases; other EDD blogs, etc.

We want our new blog to serve your needs, so please continue to give us feedback on how we can improve it! E-mail us here!

Cheers and thanks!

Getting Started with E-Discovery (Attenex/Kahn)

Attenex is offering a white paper from Kahn Consulting, "Getting Started with E-Discovery." Info here.

UK's LiST and EDRM XML Standard

On the Mark (Reichenbach) drops us a note about his post about XML standards. Jonathan Maas and George Socha dive into his discussion.

Iron Mountain acquires Stratify

Iron Mountain Inc. has paid approximately $158 million to acquire Stratify Inc. To read more, visit the press release.

Everything You Need to Know About Review (Bruce Olson)

Technolawyer's blog offers "EDiscovery: Everything You Need to Know About Review," a three-part series by Bruce Olson. Check it out here.

Masters Conference

A belated post about the terrific Masters Conference, held last Thursday and Friday at the impressive Ronald Reagan Building in Washington, D.C.

The event was limited to 350 attendees — a smart move, because the most consistent compliment I heard from attendees (attorneys/GCs/lit support/paralegals/vendors) was appreciation about how intimate the sessions were. The conference was slugged "E-Landscape in the FRCP Fallout," and it featured some top names in EDD, including Michael Arkfeld, one of our EDD Update blog authors.

Deadline Extended for LTN Award Nominees

FYI: The deadline to nominate firms, law departments and individuals for the 2008 Law Technology News Awards has been extended until November 7. Details here.

Mimosa Systems FRCP Webinar

Mimosa Systems is offering a webinar, "Federal Rules of Civil Procedure 101: Ignorance of the Law is No Excuse."  411 here. Hat tip: Technolawyer.

Acting on a WIM for SIS

Monica Bay calls a discussion that's too rarefied, i.e., too much for "insiders," as being "too Inside Baseball."  This is going to be one of those, but if we can't be high level about e-discovery in a blog devoted to e-discovery; pray tell, where do we get in touch with our inner geek? 

I was reading an article about SIS which, for those like me who have only brothers, means Single Instance Storage.  It's a de-duplication mechanism that rather smartly eliminates multiple identical instances of files in favor of pointers to a single instance of the target file.  It's implemented to save backup storage space, and it's a great idea.  Assuming you can hash match a file and be certain it's identical, why not store just one instance of data iterated hundreds or thousands of times in an enterprise?  If it's truly identical, one instance is all you need.  My thought was SIS implementations might be a smarter way to optimize e-discovery efforts than all that costly, cumbersome de-duplication we do after collection and restoration.  Plus, it's cost-effective and green. 

Fios introduces ESI maps

Fios Inc. has created ESI Content Maps to help clients become "litigation ready" for the Federal Rule of Civil Procedure "meet and confer" discovery conferences. Read more here.

Vendors Add XML

So far, the vendors who've announced their compliance with EDRM's new XML standard include: Clearwell Systems; Attenex; MetaLincs; Autonomy Zantaz; Recommind; PSS Systems; and Daticon.   

Merkal Lite

Judge Grimm's decision in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007) is a must read for any lawyer hoping to one day use ESI in court.  But, who isn't daunted by its 100+ pages?  If you're still planning to get to the banquet of Lorraine v. Markel when you have time, be sure to take the time now to read an excellent synopsis geared to e-mail issues reprinted in Law.com.  Entitled "Keep 'Smoking Gun' E-Mails From Backfiring" by H. Christopher Boehning and Daniel J. Toal, you can polish this tasty morsel off in five minutes.

LitSoft and Deepdive partner

LitSoft Inc. has partnered with Deepdive Technologies to provide ESI acquisition services. Click here to find out more.

EDRM launches XML

The Electronic Discovery Reference Model (“EDRM”), an industry group created to develop and establish practical guidelines and standards for electronic discovery, has developed an Extensible Markup Language (XML) standard for the transfer of electronically stored information (ESI). Read more about it here.

Dennis Kennedy's 26 Trends

Dennis Kennedy identifies 26 EDD trends for 2008, in this post from his blog, DennisKennedy.com.
"#1: EDD as the tail, not the dog -- Records management, not EDD, is the driver." 

How should we define "form" under FRCP 34?

Recently, a discussion entailed on a listserv about the definition of the term "form or forms" under Rule 34 of the FRCP.  I rarely respond to listservs, only because of time limitations.  However, the way the discussion was heading prompted me to respond and prompts my current post and questions for comment.  The comments to this post may be turned into an article for Law Technology News.  All comments should be submitted no later than November 10, 2007.

It is only appropriate that our discussion of the “form or forms” of disclosure under FRCP 34 begins with a quote from the Honorable Shira A. Scheindlin from the case of Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 423 (D.N.Y. 2004),

Commenting on the importance of speaking clearly and listening closely, Phillip Roth memorably quipped, “The English language is a form of communication! . . . Words aren’t only bombs and bullets — no, they’re little gifts, containing meanings!”1 What is true in love is equally true at law: Lawyers and their clients need to communicate clearly and effectively with one another to ensure that litigation proceeds efficiently. When communication between counsel and client breaks down, conversation becomes “just crossfire,”2 and there are usually casualties.
1 PHILIP ROTH, PORTNOY’S COMPLAINT (1967). 2 Id.

New discover-e CFO

Former New Technologies Inc. CFO John Dethman has joined discover-e Legal in the same role. Read more about his move here.

Long-Arm Discovery

No doubt, we are all familiar with the long-arm jurisdiction of state and federal courts. But the long-arm of discovery is much longer...

DTI opens EDD center

Document Technologies Inc.'s new regional technology center in Washington, D.C. has an EDD department that employs more than 80 litigation support professionals. To read more about the amenities, visit DTI.

LTN Awards: Nomination Deadline 10/31

Campers: It's that time again -- the deadline to nominate a firm or law dept for our 2008 LTN Awards is pumpkin day!  Don't get spooked by seeing your biggest competitor heading to the podium to accept the beautiful award you deserve! And you aren't limited to nominating your own organization (Vendors! Take note!).  Our goal is to find the very best projects and people in law firms and law departments -- and to give them a deserved acknowledgement from our legal community! It's easy!

ICANN adds 11 new languages to IDN

Mark Reichenbach, of Metalincs,  offers this analysis of today's addition of 11 new languages by ICANN to its Internationalized Domain Name (IDN) program. He includes links to ICANN resources.

Our very own Craig Ball is in The New York Times

Craig Ball is featured in today's edition of The New York Times, in its "Fresh Starts' column by Barbara Whitaker (page 19 of the Sunday Business section for those of you with hard copies). "On the Trail of Digital Secrets" details his forensics work, discussing how this area has opened up as a new job market. Congrats, Craig!!!

Realllly kewl photo by Benjamin Sklar, for The New York Times. (Click on photo to enlarge.)

What is the definition of "form" under Rule 34?

Recently, a discussion entailed on a listserv about the definition of the term "form" under Rule 34 of the FRCP.  I rarely respond to listservs, only because of time limitations.  However, the way the discussion was heading prompted me to respond and prompts my current post. 

The gist of the discussion suggested using the terms "native," "quasi-native," "quasi-paper," and "paper," to describe the "forms" of discovery.

I respectfully disagree using these terms.

The Federal Rules of Civil Procedure, committee notes and case law interpreting the new rules do not use these terms in describing what a "form" is or is not.  These sources describe a "form" as a "database," "image of a hard copy document,"TIFF," and so on.

I realize that the committee note and caselaw terms may not be anymore descriptive then "quasi-native," etc., but this is the terminology that the courts and lawyers are using.

I think using terminology that is not part of the rules, committee notes, and case law creates unnecessary confusion in the e-discovery area for judges, lawyers and other e-discovery legal professionals. 

Michael

Michael Arkfeld

Today's Post is Brought to You by the Letter "S"

I used to joke that I'd developed the perfect set of keyword search terms for electronic discovery: just 36 keywords were guaranteed to grab all the smoking guns in an English language collection.  The search terms were the 26 letters of the alphabet and the numbers 0-9.

We're back! Thanks for your patience!

We're back up! 

Murphy's Law was certainly proven true over the last 48 hours: ALM's press release heralding our launch went out Wednesday morning -- and we immediately crashed, big time, and could not for the life of us figure out why or how.

But thanks to the pit-bull perseverance of our amazing tech teams in California and New York, with help from TypePad, we're back up. And we're back to providing you with the latest news, analysis, and resources to help you with e-discovery.

As for me, I'm blaming it ALL on those Lake Erie Canadian Soldier Mayfly gremlin gnats...

Tips for new visitors

We've designed this blog to be a clearinghouse of EDD information, but we've also tried to make it very user-friendly so you can quickly find the content you need and want.

One especially handy tool is the ability to sort by categories -- which can be seen over there on the right nav bar. That way, if you want to find breaking news; the latest decisions on hot cases; the latest blog; vendor press releases or white papers; or analysis by our cadre of EDD experts, you can easily find that data.

We've also constructed the right nav bar to contain handy links lists -- everything from our EDD Darwin Watch (the latest acquisitions), to EDD sites, EDD blogs, EDD hot verdicts, etc.

So troll the neighborhood -- and remember -- you are ALWAYS welcome to dive in to the discussions! Hit that comment button!

Sean, Claire & I welcome your advice, critiques, comments and suggestions! You can comment right here, or you can e-mail us if you'd like to talk privately!  THANKS.

Encore offers articles & CLE

Encore Legal Solutions has published:

1) Bobby Malhotra's summary the Qualcomm and Columbia Pictures cases. (See also, right nav bar for other articles on these cases.)

2) A case study on webcrawling.

3) 411 on three EDD CLE courses.

Extractiva adds Unicode

Extractiva Inc. has added Unicode language support to its EDD software. For the full release, click here.

International EDD Webinar

Campers: I'm moderating a webinar that will tape late this afternoon (EDT) about international EDD. (It will be available in early November, and I'll post details once they are finalized.)

If you have any questions you'd like me to pose to our terrific panel -- feel free to e-mail me today (until about 3 p.m. Eastern)

Arkfeld ESI white paper available from Merrill

Merrill Corp. is offering a white paper from Mike Arkfeld (one of our EDD Update authors) on ESI. (He also recently did a webinar with Merrill's Neil Aresty -- check the links on the right nav bar). Here's the link to get the download, which covers the scope of ESI requirements in the FRCP revisions, the consequences of failing to produce ESI, and discusses Merrill's products.

Update: Merrill is also offering a webinar.

Recommind survey findings

A new survey on e-mail management, sponsored by Recommind, found that employee habits increase litigation exposure for many firms. To read more about the results, click here.

Sometimes big stupid numbers just make you want to cry

In the daily Oval Office briefing, Robert Gates reports, "Yesterday, 3 Brazilian soldiers were killed."
"OH NO!" the President exclaims. "That's terrible!" dropping his head to his hands.
The inner circle is stunned by this display of emotion, nervously watching until, finally, the President looks up and asks, "Tell me again, Condi, how many is a brazillion?"

Yes, sometimes big stupid numbers just make you want to cry.

I was reminded of this reading a bulletin from an e-discovery service provider this evening, reporting on the court's ruling in civil suit alleging retalitory firng, Haka v. Lincoln County, 2007 U.S. Dist. LEXIS 64480 (W.D.Wis. Aug. 29, 2007) (opinion available at http://www.electronicdiscoveryblog.com/cases/haka.pdf. 

Summarizing the decision, the bulletin stated, "Documents responsive to this request, which existed on two external hard drives containing about four terabytes of data extracted from computer servers, accounted for approximately 500 billion typewritten pages."

500 billion pages.

Actually, the opinion stated (in a footnote), "A terabyte is 1024 gigabytes, more than a trillion bytes, equivalent to 500 billion typewritten pages"

So, if the bulletin hadn't been so off track in its math, I assume it would have unquestioningly reported that four terabytes is approximately 2 trillion typewritten pages.

Trillion, with capital T, that rhymes with B, that stands for...BULLSHIT! (Here in Texas that is not profanity but a song lyric from the Cotton Eyed Joe sung by nice little old ladies line dancing in gingham skirts).

Hello?  Hello?  Does anyone for a second believe that there could be 2 trillion or 500 billion or even 500 million pages of documents and e-mails on those two drives?  If you could generate a page a second, it would take more than fifteen centuries to reach 500 billion pages, assuming you didn't stop to scratch.  If every book cataloged in the Library of Congress (20,532,692) were as long as War and Peace (1,296 pages), that's not even 27 billion pages.

I know how we got here (see http://www.lawtechnews.com/r5/showkiosk.asp?listing_id=1606423), but when, oh when, will the madness end?

And if you're ever in western Wisconsin, stop by Lincoln County.  Nice place.  You can't miss it.  Just look for the pile of paper..stretching to the moon.

FRCP changes can affect storage plans

Jeff Fehrman at EDD Blog Online picks up an article from Computerworld, analyzing how the new changes to the Federal Rules of Civil Procedure can affect your storage plans.

Clearwell partners again

Clearwell has entered another agreement, this time with Quest Software, to market their EDD products as a joint package. These vendor partnerships (which seem to be happening more and more) are intended to give users all the pieces they need to automate discovery — from storage through review — vendors say. To read about the Clearwell/Quest integration, click here.

In the beginning ...

When you look at the revenue generated in the  electronic discovery industry and its projected revenue, put that in perspective. It's only the beginning. States are beginning to follow the amended FRCP in regard to EDD and electronically stored information. New rules are now in effect for Idaho, Minn., Mont., N.H. and N.J. and other states are reviewing proposals for EDD rules. So, attorneys that practice only in state court will have to get their bits in byte order.

Oct. LTN: Discovering E-Discovery, by Bob Ambrogi

Here's part 1 of Bob Ambrogi's terrific overview of EDD websites.
As you can see in the EDD & Related Websites list to the right, it was a huge help to use in starting our site list.

BTW: Feel free to suggest additions to our website and blog rolls. E-mail us at EDDUpdate@alm.com

White Paper From Index Engines

Index Engines has released a white paper that addresses new technology for reviewing backup tapes. To access the document, click here.

Green Tapes

In looking at the huge waste of resources in the physical destruction of computer equipment and media due to security concerns, it was interesting to see a report on the recycling of magnetic tapes used by the government. The report concluded that the selling of used magnetic tapes by the government is a low security risk if they comply with National Institute of Standards and Technology (NIST) guidelines in sanitizing tapes.

Old Law, New Tricks

Advances in information processing and technology lead to new forms of personal injury and crime such as the theft or destruction of electronic data. But it doesn't necessarily mean we need more laws on the books to address and remedy them.

Oct. LTN: "The Power of Visuals" (Craig Ball)

Here's Craig Ball's latest "Ball in Your Court" column,  The Power of Visuals, which discusses why it's  critical to use demonstrative evidence when your EDD experts testify.

Oct. LTN: "Consequential Acts" (Purcell & Boit)

William Purcell & Bernard Boit discuss the EDD implications of the Foreign Corrupt Practices Act, in Oct. LTN, here.

Oct. LTN: "Risky Business" (Browning Marean)

EDD Update author Browning Marean, of DLA Piper, writes on how EDD is presenting a new panoply of risks to firms and their clients, here.

Live blog from NJ IQPC Conference

On the Mark (Reichenbach) is live-blogging from the IQPC EDD conference going on across the river.

Oct. LTN: "Discovering Data" (Tom Allman)

EDD Update author Tom Allman presents highlights of the new Second Edition of The Sedona Principles, reflecting the new amendments to the FRCP. Read it here.

RenewData Offers Backup Tape Liability Service

RenewData has announced a new Backup Tape Liability Service. Press release here.

Encore Legal: Keyword Culling

Here is a white paper from Bobby Malhotra, of Encore Legal Solutions:  "Keyword Culling: A Best Practice Approach."

Norcross Resells Index Engines

The Norcross Group has joined Index Engines' "litigation ready partner program" as a reseller of the Index Engines Enterprise Discovery Platform. Here's the release.

Cataphora Adds Int'l Executives

Cataphora Inc. has added two executives to its European team. Markus Morgenroth is managing director of European operations, based in Germany. Mathieu Feulvarc’h, based in France, is vice president of customer support. Press release here.

Webinar: Arkfeld & Aresty on ESI

EDD Update author (and LTN board member) Michael Arkfeld, along with former LTN edit board member Neil Aresty, have recorded a one-hour webinar, "Total Evidence Management." Neil is now sr veep with Merrill Legal Solutions.

The two discuss the scope of ESI requirements as spelled out in the FRCP amendments; and the consequences of failing to produce ESI. It's a vendor-produced webinar, so of course it will also discuss the company's services.