EDD Update

Goetz Case Order re: Forensic Inspections

Sixth Circuit Stays District Court's Order Allowing Plaintiffs' Computer Expert, Escorted by United States Marshall, to Inspect and Forensically Image Tennessee State Agencies' Computer Systems

John B. v. Goetz, No. 07-6373 (6th Cir. Nov. 26, 2007)

This case is a class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services, including early and periodic screenings for their physical well being, and dental and behavioral health needs.  Defendants in the case include Tennessee state officials who are in charge of the state programs for these services.

Kroll analyzes 2007 EDD cases

Kroll has released its analysis of EDD cases that have been processed in the year since the amendments to the FRCP have been in force. Among its results:

"Thus far, approximately 105 e-discovery opinions were reported since December 1, 2006. The major issues involved in these cases break down as follows:

• 25% of cases addressed discovery requests and motions to compel
• 24% of cases addressed spoliation/sanction
• 23% of cases addressed issues involving the form of production
• 9% of cases addressed preservation/litigation holds
• 7% of cases addressed attorney-client privilege and waiver
• 6% of cases addressed production fees
• 6% of cases addressed admissibility of electronic evidence"

Full release here.

MIME? Wait...is that French?

Would somebody please help me understand the problem in PSEG Power N.Y., Inc. v. Alberici Constructors, Inc.?  Oh, I've read the opinion.  The notion that a party shouldn't be permitted to incomprehensibly separate e-mail messages and attachments seems so intuitively obvious that one wonders why the parties troubled the court.  No, my confusion centers on the parties being all atwitter about 3,000 e-mails from 750GB of native data (i.e., Outlook PST files).  The requesting party says it will cost $37,500 to reproduce the e-mails accompanied by their attachments.  The producing party says it will be $206,000.

Catalyst hosts CLE session

On Wednesday, Dec. 12, Catalyst Repository Systems Inc. will host a two-hour program dealing with the management of foreign documents. The session is CLE approved, and panelists include trial lawyers and forensic experts. To register for the morning session, at New York's Blank Rome, click here. For the afternoon session, at Hughes Hubbard also in NYC, click here.

Cataphora expands sales team

Cataphora Inc., which sells evidence analytics and review software, has added five employees to its sales and business development teams. Read more about the new hires here.

Keeping Up With EDD Blogs and Tools

Law.com today features the second installment in my two-part column on useful e-discovery sites and resources. The second part, Keeping Up With EDD Blogs and Tools, focuses, as the title suggests, on EDD blogs and also on vendor sites with useful information. The first part, EDD Bytes to Feed Your Firm, looked at general EDD Web sites.

Buried Alive - the high cost of EDD

Our colleague, Julie Triedman, of The American Lawyer, offers this powerful story, Buried Alive,  about the high cost of litigation faced by 19 KMPG defendants. Much of the cost was for EDD. What happens when defendants --and their lawyers -- can't afford to fight?  (Free, reg req'd).

Crystal Ball in Your Court

Though it’s customary to reflect at this time of the year, I thought it would be more interesting to look forward and prognosticate sixteen future developments in electronic discovery.  I expect a couple of these changes to take hold in the next 10 months, but others are looking out as far as ten years.  My predictions follow, along with explanations.  Please post comments to share yours (or debunk mine).

It's Come to This ...

"(She's an) Electronic Discovery"... um, er, well, oh sigh. From Chadbourne & Parke's Lawrence Savell's LawTunes Live from BlackAcre. Clapton it ain't. :)

Anticipating Human Frailty

For some time, I've preached that lawyers implementing a litigation hold must anticipate and guard against human frailty, specifically a custodian's inclination to reinvent history by altering or deleting ESI.  With disturbing regularity, custodians hit the delete key, deploy wiping software, swap hard drives or otherwise seek to "game" the evidence. 

As a forensic examiner, I'm brought in when data destruction is suspected, and those suspicions frequently prove well founded.  So, yes, I concede my views are jaded and skewed...by firsthand experience.

Too often, the corporate response to data wiping ranges from turning a blind eye to it or, when it can't be ignored, distancing the occurrence as the aberrant behavior of a "rogue" employee whose conduct the company claims it couldn't anticipate or control and thus need not shoulder.  But a recent decision, strikes a dagger in the heart of the "no duty" argument, holding that, even absent evidence that others in the company knew of or condoned the destruction of ESI, the company should have taken reasonable steps to prevent or mitigate the consequences of such misconduct.  In re Hawaiian Airlines, 2007 Bankr. LEXIS 3679 (Bankr. D. Hawaii Oct. 31, 2007).

MetaLincs 4.0

The latest version of the MetaLincs Enterprise E-Discovery Suite, version 4.0, adds new features for automating analysis and organization of documents for legal and investigatory review. Read more here.

Fortiva Survey

Fortiva is sponsoring a study survey examining how legal departments are dealing with post-FRCP EDD. To take the survey, click here.

Court Grants Plaintiffs' Motion for Preservation Order

In re Nat’l. Security Agency Telecomms. Records Litig., 2007 WL 3306579 (N.D. Cal. Nov. 6, 2007)

In this brief order, Chief Judge Vaughn R. Walker granted plaintiffs’ motion for an order prohibiting the alteration or destruction of evidence during the pendency of the action.  Among other things, the court ordered:

Counsel are directed to inquire of their respective clients if the business practices of any party involve the routine destruction, recycling, relocation, or mutation of such materials and, if so, direct the party, to the extent practicable for the pendency of this order, either to

(1) halt such business processes;

(2) sequester or remove such material from the business process; or

(3) arrange for the preservation of complete and accurate duplicates or copies of such material, suitable for later discovery if requested.

Lock and Load the Source Code

If you put two facts together, you might wonder why your last discovery request did not include source code.

Michael Goldblatt's Webinars Links

Michael Goldblatt, of the Louisiana Lawyers Computer Group, has compiled a list of webinars (not all pertain only to EDD). Here are a few from his list that might be helpful to you:  • ABA TechShow  • CIO Magazine  • LTN 

The Three Most Dangerous Buttons

The Fulton County Daily Report's article "GCs to Employees: Think Before you Send," by Katheryn Hayes Tucker generated this analysis on White Collar Crime Prof Blog. Topic: "the persistent problems e-mails present in cases." Oh yeah, those three buttons: "send, forward, and reply all."

Zeno, Draco, Mozart and Solomon, L.L.P.

Do hard cases make bad law?  Or do hard cases just so piss off judges that angry jurists make bad law?  Case in point is John B. v. Goetz, 2007 WL 3012808 (M.D. Tenn.Oct. 10, 2007).   At 187 pages, the Court’s ponderous memorandum opinion was brutal to wade through, but when I saw the accompanying order requiring production of “all metadata as well as all deleted information on any computer of any of the Defendants' designated key custodians,” (emphasis added) I was determined to find what led to such an untenable directive.

The Good and Bad News About E-Mail

The good news about e-mail is that it is a fast and responsive medium for communicating to partners, colleagues, friends and adversaries. The bad news is that it is a fast and responsive medium for communicating to those same parties. Why is it that we see so many problems with employees sending e-mail in the work place where they have this inherent belief that all messages sent from their computer are private, even an e-mail to their attorney regarding litigation with their employer?

Onsite3 Launches Client Advisory Board

Onsite3 has launched a 12-member client advisory board that includes attorneys and senior litigation and practice support professionals from both law firms and corporations spanning industries such as pharmaceutical, financial, medical, and other fields. They did not identify specific members in the press release.

Preparing for Meet & Confer (Clearwell)

Clearwell is hosting a free web seminar titled “Preparing for the Meet & Confer—How Early Case Analysis Can Give You A Significant Competitive Advantage,” featuring George Socha, EDD expert and co-founder of the Electronic Discovery Reference Model (EDRM) Project. The webinar will take place on Thursday, November 15 at 1 p.m. ET. For more information, click here.

TimeKM Asia

PensEra Knowledge Technologies has opened an office in Hong Kong, so it can sell its TimeKM suite of software in Asia. Read more here.

Women in eDiscovery Charity Drive

Lana Schell checks in to let us know about a project underway by the new group, Women in E-Discovery (affectionately nicknamed, "Skirts in EDD"). WiE has adopted the Susan G. Komen Foundation as its national charity, and is establishing teams in each of the cities where the annual three day, 60-mile walk is held. Currently there are teams forming in Philly, D.C., and they expect more. "Our goal is to raise $300,000, " she says.

The new organization already boasts 700 members. The gimmick: because WiE doesn't charge membership fees, they are asking participants who are benefiting from the group and its meetings and networking opptys to "pay it forward" and donate what they would expect to pay in membership fees to the Komen group. Details here.

P.S.: Ms. Schell will be attending the New York City WiE chapter meeting Friday, Nov. 9, at noon, at Patterson Belknap, 1133 6th Av. Details: Shawnna Childress.

Touro Law Center Spam Conference

Not quite EDD, but of possible interest to our EDD crowd: Jonathan Ezor checks in to let us know that the Touro Law Center Institute for Business, Law & Technology will host a half-day conference in NYC, on 11/27: "When Spam isn't Spam: An Unfiltered Look at Self-Regulation and the Law Behind E-mail."
Details here.

A New Tier of Staff Atty Jobs (Elefant)

Carolyn Elefant, co-editor of Law.com's Legal Blog Watch Alert, says "staff attorney" posts are morphing into a new Big Law tier. Will that change the traditional "second class citizen" role of these lawyers, especially when they are functioning in e-discovery roles? Check it out here.

You can't spell "dream on" without ERM

I read an article this morning, linked from what I regard as the very best blog on e-discovery: K&L Gates' ediscoverylaw.com.  Entitled, "Creating a Strong Foundation for Your Company's Records Management Practices," the piece was one of those I dutifully follow to stay abreast of--dare I say it?--one of the most boring topics on the face of the planet.
* * * * Plink! [That was the sound of all future invitations to speak at ARMA meetings evaporating.]
Okay, maybe not boring to professional records managers, but when the audience is corporate counsel, you'd better have lots of ready-to-roll action items to keep eyelids from fluttering.  Now, it's easy to criticize and hard to construct, so I don't mean to take anything away from a well written, thoughtful article when I point to the challenges I see in implementing its advice.  But, I confess that the more I study electronic records management (ERM) and the more I preach its gospel in CLE, the louder the demon on my shoulder whispers, "Who are you kidding?  They're going to keep everything."

Strategy First

Following an absolutely exhilarating victory of my son’s hockey team this week against much bigger and better opponent, I could not help but think of an importance of the strategy in almost everything we do successfully.  Those of us coaching sports teams of 6-9 year olds can certainly relate to how difficult it is to preach an importance of strategy to them, but even if you are coaching in the field of EDD and your audience is a group of educated and experienced attorneys, the challenge is no less by any means.

We were discussing importance of the International EDD strategy earlier this week during the T3 conference in London, UK. I’d like to share some of the points raised and discussed (kudos to Michelle Mahoney from Mallesons Stephen Jaques who unfortunately was not able to make the journey from Australia and Jonathan Maas from DLA Piper UK who was able to go cross town to make the conference for their input into the concept):

Defendants Granted Opportunity to Review and Object to Proposed Search Terms and Parameters Before Searches are Executed on Mirror Images of Defendants' Hard Drives

Verigy US, Inc. v. Mayder, 2007 WL 3144577 (N.D. Cal. Oct. 24, 2007) (Not for Citation)

In this misappropriation of trade secrets case, plaintiff had been granted leave to conduct some expedited discovery prior to the court’s hearing on plaintiff’s motion for preliminary injunction.  In addition, defendants had been ordered to preserve all evidence, including all information contained on their computer hard drives.

In this order, the court resolved plaintiff’s expedited motion to compel certain defendants to produce “bit-for-bit copies (i.e., mirror images) of all hard drives.”  The parties disagreed about how such inspection and production should proceed, and submitted differing proposed discovery protocols for the court to consider.

Outindex E-Discovery updated

Outindex has introduced a new version of Outindex E-Discovery. Read more about the enhanced program here.

Best Authority Light released

Levit & James Inc. has released Best Authority Light Edition, a less expensive and lighter-featured version of its Best Authority software. Legal professionals use it to create a Table of Authorities, which is a list of citations in a legal brief. To read about the difference between the standard and the light versions, click here.

"EDD for Dummies" Book (RenewData)

RenewData is offering a free book, "Electronic Discovery for Dummies," here.

eDiscovery Sanctions - Staying Out of Harm's Way

The ABA/LPM's Law Technology Today website offers this article, "eDiscovery Sanctions - Staying out of Harm's Way," by John Bennett & Gerard Britton.