EDD Update

Post-termination Employment Forensics

Rob Robinson found this interesting article by Joe Bartling on the Left of Litigation blog. It offers suggestions on how to handle ESI/EDD discovery issues when there's a dispute with a departed employee.

And watch for the January issue of LTN, which will be available on January 2nd. Roberta Gelb has a very helpful article about the potential dangers that lurk when your network administrator leaves (voluntarily or kicked out). I'll post a link to it as soon as it goes live.

EDRM Bulletin Board Added

The EDRM site now has a bulletin board.

Located at http://edrm.net/bb/index.php, the EDRM Bulletin Board is available to anyone who would like to post questions or comments about any of the on-going EDRM projects.

Please note that registration is required for posting materials.

George Socha

The Medium is Just Part of the Message

Does the determination whether ESI is reasonably accessible turn on the type of medium which stores it?  Rules of thumb mistakenly suggest that information on tapes is presumed inaccessible while data on up-and-running servers is accessible per se.   Would that the lines were drawn so bright. 

Certainly, the medium which holds data influences the accessibility assessment, but data on 'readily accessible' hard drives might be a Gordian knot of unstructured information stubbornly resistant to extraction whereas data on tape proves surprisingly easy to locate and extract.  Notwithstanding the helpful observations of the Zubulake opinion, you can't look at the medium of storage alone and categorically conclude that ESI is reasonably accessible or inaccessible.  You've got to consider the totality of burden and cost.

A worthwhile read on this point is the decision in W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007), flagged by the ever-vigilant webmeisters at K&L Gates.  The opinion is available here.  Though missing an opportunity to debunk strictly media-based accessibility analyses, I admire that that the court looked beyond the medium of storage to the actual burden and cost.  More, the court divined that the convoluted structure of the database was the principal contributor to discovery burden, and so, despite finding the ESI to be not reasonably accessible, imposed no conditions upon production.  Notably, after finding good cause to compel production, the court didn't shift any costs of production to the requesting party. 

The media employed to hold ESI and the tools and applications used to access that media are ever-changing, such that there aren't any "safe" assumptions about accessibility.  Careful judges won't accept categorical assessments of accessibility based on medium of storage alone.  In each case counsel must assess and demonstrate, "How hard will it really be, and how much will it cost?"

Discovery Not Automatically Available to the Public

Scott Graham of The Recorder reported that documents filed with a court in civil litigation are not automatically available to the public. In a unanimous panel lead by Justice Wendy Duffy, the Sixth District Court of Appeal ruled that a trial judge erred by unsealing e-mails, spreadsheets and other discovery appended to a shareholder complaint.

Count Dracula Meets Frankenstein

While reading DLA Piper privacy counselor David Bender's article on U.S. discovery law v. EU privacy law, I was reminded of some old movies like King Kong Meets Godzilla or Count Dracula Meets Frankenstein. Attorney Bender compares U.S. discovery to an irresistible force and the EU's Data Privacy Directive to an immovable object. And, when these two meet in the same space, it may require an outside party to make ends meet.

Formula for Evaluating Vendors

Rob Robinson offers this formula for evaluating vendors, on his Information Governance Engagement Area blog.

Logan's EDD MarketScope Report (Gartner)

Gartner's first EDD MarketScope report, from Deborah Logan,  is now available. (for $1,995).
Here are some of the first posts about it:

E-Discovery 2.0: Clearwell (Aaref Hilaly) who notes that there are only 5 vendors who appear both on Logan's list and the 2007 Socha/Gelbmann roster.

In Re Discovery: George Socha responds to Hilaly post.

July 07 Podcast (onsite3/Logan) here.

EDD For Finance

IQPC's E-Discovery For Financial Services conference is aimed at teaching firms in the sector how to comply with retention policies and improve their internal EDD processes. It will be held Feb. 27 - 29 at the Millennium Broadway in New York. For more information, click here.

Try "Lolita"

Can you compel someone to disclose their password to gain access to encrypted evidence?  In the civil litigation world, it's pretty clear you can, but it's been an open and contentious question on the criminal side.  Now, with so many corporate clients and famous lawyer colleagues heading off to the slammer, we civil litigation types may need to give this some thought. 

A federal magistrate in Vermont recently concluded that compelling the accused to reveal, or simply type in, his PGP password to unlock a laptop partition holding child pornography violates 5th amendment rights against self-incrimination.  I saw the case blogged on CNET, but it turned up on The Volokh Conspiracy blog, too.  The opinion, In re Boucher, notes that compelling disclosure intrudes into the contents of the defendant's mind and distinguishes between requiring a defendant to disgorge a key (permissible) from requiring a defendant to reveal a combination to a safe (impermissible).  If a BitLocker password resides on a thumb drive in his pocket, seems a defendant has to give it up.

I'm not so sure this decision will stand, but it holds important lessons for computer forensic examiners to take to heart before they shut down a live system: Look for evidence of encryption before you pull the plug.  If you find it, don't shut down, keep the screensaver from activating and get power to the machine pronto!

Marean, Carpenter et al speak in SF Thursday

EDD Update author Browning Marean will moderate a panel Thursday (12/13) at West Legal Works E-Discovery and Records Retention conference in San Francisco. Speakers on the panel, which will address information management and litigation readiness, include Craig Carpenter, of Recommind; Sabrina Chen Lozano, of Freddie Mac; Peter Pepiton of CA, James Shook of EMC2  and Laurie Weiss of Fulbright & Jaworski. The event will be held at SF's Ritz Carlton Hotel. Source: Recommind.

Symantec White Papers

Symantec Corp. offers a range of EDD white papers, case studies, and webinars, including "Leveraging Technology to Enable Automatic Holds," and "CIO Guide to the new FRCP," here.

NLJ: Tom Allman & Kevin Brady on RAM issues

EDD Update author Thomas Allman (who will keynote at LegalTech NY), and Kevin Brady, address "Can Random Access Memory Make Good Law," also from The National Law Journal, here.

And the finalists and winners are.....

Exciting news! The finalists for the 2007 Law Technology News Vendor Awards, and the winners of the 2007 LTN Law Firm and Law Dept. Awards have been announced!

The lucite will be presented at our gala fifth annual LTN Awards Dinner, held Tuesday, Feb. 5 during LegalTech NY, at the NY Hilton. For ticket or sponsorhip information, please e-mail Kevin Iredell or call him at 800 888 8300.

The e-discovery crowd will be especially thrilled to hear that one of our e-discovery leaders was selected by our independent jury as IT Champion of the Year: George Rudoy, director, global practice technology and information services, at Shearman & Sterling. Among his many contributions to our community, he is an author of this blog.

The vendor awards, voted on by LTN's readers, include several categories for EDD and litigation support products, including:

What you may not know, that you don't know ...

Lawyers faced with the novelty of e-discovery in an international setting have reacted in different ways -- some have mastered it, some have outsourced it, and others, according to Shearman & Sterling's Jaculin Aaron and Laura J. Lattman, may not even know that they don't know the global complexities of EDD.

E = Expensive, says Genentech Exec

Terry Sweeney, in Byte & Switch, says Genentech Inc.'s Stephanie Mendelson says that the "e" in e-discovery probably stands for "expensive," as courts grapple  with retention and retrieval costs.  Read article here.

Hat tip to George Socha.

BIYC: Ask the Right Questions

Here's Craig Ball's  "Ask the Right Questions," from Ball in Your Court, December '07 LTN. 

Merrill Guidebook

Merrill is offering a guidebook, "Get Prepared Now for New E-Discovery Rules." 411 here. 

Seagate acquires MetaLincs

Today, Seagate Services, which provides backup, recovery, and e-discovery, has signed an agreement to purchase MetaLincs, an EDD company. Find out more about the acquisition here.

White Paper: Potentially Privileged Searches

Bobby Malholtra, senior project manager, professional services group, at Encore Legal Solutions, offers this whitepaper, "A Lawyer's Guide to Electronic Discovery — Potentially Privileged Searches.

Launch: "Law Technology Now, with Monica Bay"

We've very excited to announce our new Law.com monthly podcast, Law Technology Now with Monica Bay, which is produced in partnership with Legal Talk Network. The idea behind the podcast is to supplement Law Technology News — each month, I will interview an author from the current edition. Each podcast is approximately 15 minutes long, and provides an opportunity for members of the legal community to hear about the latest developments in technology that are designed to help lawyers deliver “faster, better and cheaper” legal services to their clients.

Fios hires consultants

Fios has added four consultants to its discovery management services group. Read the employees' bios here.

Sedona Conference Institute Program

We turn over the mic to The Sedona Conference:

"Registration is now open for The Second Annual Sedona Conference Institute program, "Getting Ahead of the eDiscovery Curve", to be held Thursday and Friday, March 13-14, 2008, at the Westin Horton Plaza in San Diego. Registration is strictly limited to 150 persons, on a first-come first-served basis.

Webinar: Media Relations Bootcamp for Lawyers"

LTN's editor-in-chief Monica Bay will present a live webinar, "Media Relations Bootcamp for Lawyers," on December 11, from 1-2 p.m. (Eastern), presented by The National Constitution Center. For registration information, click here.

Webinar: The E-Discovery Playbook

Attenex is offering a webinar on Tuesday, Dec. 11: "The E-Discovery Playbook: Build a Strong Offense with Early Case Assessment," featuring George Socha and Ashley Watson. Details here.

Commentary from Craig Carpenter of Recommind

Craig Carpenter, VP, marketing and business development at San Francisco-based Recommind, asked us to post this commentary:

New eDiscovery product announcements continue to come in by the truckload, which helps bring attention being paid to such important areas as litigation review and analysis, document clustering and legal holds.

EDD in San Francisco

Warm thanks to the Bay Area chapter of Women in eDiscovery (right) and to the Estrin Paralegal SuperConference, for being such terrific audiences last week. Here's my post from The Common Scold.

Photo by Russ Curtis.

Zantaz releases Desktop Legal Hold

Zantaz, now part of Autonomy, has introduced Desktop Legal Hold, used by corporate legal and IT departments to remotely enforce legal holds. Read more about the program's features here.

LexisNexis Polls ACC GCs re: FRCP Readiness

LexisNexis polled Association of Corporate Counsel attendees during the 2007 annual meeting in Oct., and found that 44 percent said they weren't prepared for the amendments to the Fed. Rules of Civ Pro -- but that they have made strides during 07. Press release: Download ACC-LNSurvey.doc