Making a Hash of It

One day, that sexy ingenue we call "e-discovery" will settle down to a matronly middle age of just being “discovery,” and the phalanx of bloggers dissecting every trial judge’s best guess about electronic evidence will settle down, too.

Until then, I’m grateful to the blogging multitudes who open their diaries to the web and tap-tap-tap away, insuring that we miss absolutely nothing.

One of my favorite blogs is Ralph Losey’s “e-Discovery Team.”  Ralph writes artfully, passionately and with good humor about EDD topics.  A thorough exploration of his site’s many byways is a virtual e-discovery certification course.  The posts are personal enough in tone to know where Ralph stands, but never offputting. Even on those infrequent occasions when I question his conclusions, Ralph’s sincerity and reflection are never in doubt.

It’s one of those rare disagreements that prompts this post. 

Orion Communications Releases Virtual Viewer

Orion Communications Inc. has introduced Virtual Viewer. It helps users  retrieve data stored from any number of databases, systems and technology platforms.  Go here for more info. 

Fed. law allows plaintiff to amend complaint to assert spoliation clause

Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 2008 WL 668267 (N.D. Ohio Mar. 11, 2008)

In this case, an automobile dealer brought suit alleging that DaimlerChrysler had breached a settlement agreement when it refused to grant the dealer a Chrysler franchise.  During the two years of discovery that followed, Schmidt alleged that DaimlerChrysler knowingly and intentionally destroyed relevant evidence.  Specifically, Schmidt alleged that DaimlerChrysler failed to implement a litigation hold to prevent the destruction of evidence after the complaint was filed in October 2004, and replaced or altered certain employees' hard drives days before Schmidt made forensic images of the drives as part of its discovery process.  Further, Schmidt alleged that DaimlerChrysler attempted to hide the extent and significance of its misconduct.  As a result, Schmidt sought to add a spoliation of evidence claim to the litigation.

Read the entire post at ediscoverylaw.com.

ABA Hosts E-Discovery Teleconference

The ABA's Section of Litigation will be hosting a Litigation Series CLE Teleconference, "Electronic Discovery: Protecting Sensitive Data and Using it as Proof," on Tuesday, April 8. More info here.   

Altep Inc. Releases Inspicio 1.5

Altep Inc. has released Inspicio version 1.5, an update of its document review platform.  New features include enhanced search capabilities and streamlined data loading. Press release here.

Dodging an EDD Sanction

While the courts are becoming more familiar with the legal and technical issues arising from electronic discovery, there is still no shortage of perplexing "e-issues" confronting judges. In <i>Toussie v. County of Suffolk</i> in the Eastern District of New York, a defendant dodged substantive sanctions for losing and/or destroying  e-mails requested in discovery because the parties requesting the e-mails failed to marshal satisfactory evidence that the missing e-mails would have been supportive of their case.

District court modifies magistrate judge's order to allow for pre-production privilege review

Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008)

In this case involving claims of misappropriation of trade secrets, defendants objected to an order of a magistrate judge requiring them to disclose "forensically sound" images of certain data storage devices (Thermax's India and Michigan servers) to plaintiffs' counsel without any limitation as to the scope of the disclosure or prior filtering for privileged or work-product materials that the images might hold.  The production was required to permit a determination of whether defendants had violated an earlier stipulation and order that had imposed an ongoing obligation on defendants to return to plaintiffs any of plaintiffs’ files in their possession, and then to purge such files from their possession, custody and/or control.

Read the rest of the post on ediscoverylaw.com.

White Paper: Merrill - 7 Ways to Test Your Vendor

Merrill has released a white paper: Seven Ways to Test Your EDD Vendor.  

ARMA: E-Discovery & Beyond

Rick Wolf, of Lexakos, alerts us to an upcoming ARMA International program, "E-Discovery & Beyond: Manage your Electronic Data Risk," which takes place in NYC at the Marriott Marquis on March 31-April 1.
Agenda here.

Clearing Out the In-Box

Some old news that got buried in my in-box:

* Rick Wolf of Lexakos posts on While Legal Hold Management is an Important Internal Control, on The Datakos Blog, here.

* Jonathan Maas of DLA Piper UK reports that UK judges are now getting training in edisclosure/ ediscovery and their long-awaited use of LiST work product.  An independent consultant, Chris Dale ... is leading the charge (and I have had a small part in it) and has a web site and blog full of stuff relevant to what is going on (and technology in law generally)."

* Chris Kruse, of CaseCentral, reports that the company has brought on Tom Thimot as CEO. "Tom is the perfect choice to help lead CaseCentral through our next phase of growth. He brings a wealth of experience and an incredible portfolio of success at both public and private technology companies.

Managing Discovery Process - ALM Events

ALM Events will present "Managing Today's Discovery Process: The Evolving Role of Paralegals and Litigation Support Professionals" on April 24, at the Harvard Club in NY.

Topics range from Selecting/Negotiating with Vendors; Cost Containment; Communications Issues; IT/Legal Interaction, and more. I will be presenting on the topic of "How EDD is Changing the Job Market," and other panelists include:
* Cynthia Bateman (Georgia-Pacific)
* Tom O'Connor (Legal Electronic Documents Institute)

Webinar: Order to Chaos (Guidance, Symantec)

A webinar, Bringing Order to Chaos, will take place on April 3 at 11 a.m. Pacific time, featuring Jack Halprin Sr. eDiscovery Product Marketing Manager, Guidance Software; Sean Regan, Product Marketing Manager, Enterprise Vault, Symantec.

Keep the SOX on Litigation Holds

Interesting note on the applicability of Sarbanes-Oxley Act's obstruction-of-justice provisions to both individuals and entities, public or private. The article focuses on the criminal penalties for destroying evidence in a federal investigation, matter or official proceeding. The author makes a point that your records-retention policy needs litigation holds to suspend the routine deletion of information.

Quest White Paper on Exchange E-Discovery

Quest Software Inc. has released a new white paper, "Best Practices for Exchange E-Discovery," which addresses the challenges of retaining and producing e-mail evidence.  Go here to download.

Sedona Conference Webinars

The Sedona Conference reports that its "Voices from the Desert" series continues Wednesday March 19 with a commentary on ESI Evidence and Admmissibility, featuring editor Kevin Brady and three members of the Working Group 1. Details here.

More EDD Showcase

Continuing to play catchup -- here are more links to the Jan. LTN EDD Showcase:

Dan Regard: Beyond Privacy. (International issues)

Brett Burney: State-Side Patchwork (What U.S. states are doing)

Kenton Hutcherson: Locked Down (Security)

Jason Baron: Discovery Overload. (Old protocols don't work anymore)

Debra Hindin-King: In Search of Sanity (How paralegals can lead)

eSpeak: January EDD Showcase

Playing catch-up a bit:

Here's Mike Arfeld's cover story from our last EDD Showcase (Jan LTN), discussing communications issues with EDD.

And Ari Senders' story, Beyond English, about translation issues, as well as George Rudoy & Michelle Mahoney's article, Lost in Translation.

Sneak Preview: Almost-Live from L.A.

Speaking of live blogging, plans are underway for LegalTech West Coast, in Los Angeles, June 25-26 to repeat our popular  "Almost-Live from New York" blog-o-rama.

We'll once again have live reporting on Legal Blog Watch, which will again serve as a central clearinghouse for other posts from other bloggers covering the show.

All non-vendor bloggers who plan to do live blogging will be provided with a free full conference pass (e-mail legalblogwatch@alm.com to register), we're going to have a welcome breakfast on June 25 open to all bloggers.

We're planning to designate the first two rows of every conference program for bloggers and provide electrical outlet strips, and looking into other ways to facilitate blogging at our West Coast show!

I'll keep you posted!

Live: ABA TechShow 2008

Just arrived at ABA TechShow late Friday.... I'm presenting Saturday morning (i.e., today) on one of two "Green" panels... Do stop by if you're in the 'hood (Chicago Hilton):

* Lara Pearson and Arthur Harrington (left) will present "Meeting the ABA EPA Law Office Climate Challenge, from 8:30 am - 9:30 a.m., then I will join them for the 9:45 panel, "Small Footprint - Big Impact:" Improving Client Services with Sustainable Practices. (Northwest 3).

* After our panel, stick around for the ABA TechShow's signature panel, "60 Sites in 60 Minutes," which closes out the event, and features Craig Ball (LTN's EDD columnist), TechShow chair Tom Mighell, and D.C.'s own Reid Trautz  in the Grand Ballroom.

Happy Trails

Every time I see [variable] trails, whether they are happy or not, I think about all those B-westerns with the likes of Gene Autry and Ronald Regan. But when I see electronic trails, I think of all the BlackBerry and iPhone devices out there and the volumes of e-mail and ESI that are filling up our practice of law. Just what are all the states doing without the benefit of rules for e-discovery? Check out Florida's practice.

Verdict Systems Releases Full-Network Verdical

Verdict Systems has released a full network version of its Verdical software.  Verdical helps users prepare, organize, and present cases in trial. More information is here.

Qualcomm's Hard-Learned Lessons

Here is Alan Cohen's article, from Corporate Counsel magazine, "Qualcomm's Hard-Learned Lessons"

Discovery and the Reluctant Host

FRCP 34(a) enables a party, in certain situations, pursuant to a court order, to collect an opponent's electronic data and associated metadata, itself. Such inspections can range from creating an image of a single computer to a full forensic examination of a network. Nolan M. Goldberg in "Discovery and the Relectant Host" says that the assistance of an organization's IT personnel in navigating these situations is critical, first in providing the technical guidance necessary to oppose the request, and then in assisting in conducting the inspection if the request is granted. How true. Put your IT people on your lunch schedule and make it a regular meeting.

FTI Partners with De Novo Legal

FTI Consulting Inc. has announced a partnership with De Novo Legal, and an agreement for the firm to host the Ringtail document review platform from FTI. FTI also announced the expansion of its partner program with the addition of seven new Ringtail service partners, including the Center for Computer Forensics, Barrister Digital Solutions, and the Tusker Group. Details here.

RenewData Webinar on ESI Risk Management

RenewData will host its second webinar focused on Electronically Stored Information Risk Management, which will focus on the implications of the FRCP amendments from a litigator's viewpoint. The panel will discuss how the revised rules have affected the strategies of outside counsel when responding to e-discovery requests, and address ways in which these challenges can be mitigated before litigation begins.  This webinar will take place on Wednesday, March 12 from 2:00 – 3:00 p.m. (ET).  Go here to register. 

Thomson Integrates Baker Robbins & Company Consulting Team

Thomson Litigation Consulting has integrated the litigation consulting team from Baker Robbins & Company, services of which include e-discovery consulting, corporate litigation readiness, vendor management, and data processing.  More information is available here.

Thomson Adds Digital Mandate's Vestigate

Thomson Litigation Consulting has added Vestigate document review platform from Digital Mandate.
Vestigate is designed to more accurately and rapidly analyze electronically stored information. Press release here.

Thomson to Offer Clearwell's E-Discovery Platform

Thomson Litigation Consulting will offer the E-Discovery Platform from Clearwell Systems Inc. for early case assessment, which helps users streamline the processing and analysis of electronic information. Press release here.

Thomson Adds Platform from Inference Data

Thomson Litigation Consulting has added to its portfolio an analytics and review platform developed by Inference Data, which will help clients identify key documents.  More information is here.

MoFo CIO Haraf Departs

The fabulous Jo Haraf, CIO of MoFo and a member of LTN's edit board, has decided to pursue life, liberty and happiness outside of legal tech. Details here, and yes, contact her if you are interested in her job and  live either in SF Bay Area or on airplanes.

Bye Bye Rob

Rob Robinson is shuttering his Info Governance blog. See his adios here.

Lit Support Leaders SuperConference: Harris

LIVE BLOGGING FROM ESTRIN LITIGATION SUPPORT LEADERS SUPERCONFERENCE

Charlotte Riser Harris -- 10 Essential Steps to Developing a Premier Lit Support Dept

#1: Keep your sense of humor. Even when you think all your users are idiots and you are repeating the same thing for the 1,000,000th time.

#2: Get buy-in from the top. Easy to say, hard to do.

#3: Listen to your users and don't forget paralegals and other support staff are users too.

# 4: Develop a brand and marketing and informational materials.

Lit Support Leaders SuperConference: Lisa Rosen

LIVE BLOGGING FROM ESTRIN LITIGATION SUPPORT SUPERCONFERENCE:

Lisa Rosen  (Rosen Technology Resources Inc.): The Rise of ESI - Meta Data and its Myths

Download Lisa Rosen's  PPT: Download meta_data.ppt

Highlights:

* Data can be anywhere, including on iPods

* Beware that titles of documents may be misleading or irrelevant.

Attenex: Striking a Balance to Control Costs

Attenex has released a white paper on how to control costs by combining in-house resources and outsourced exports. 

inData Corp: New consulting service

inData Corp has launched new consulting services. 411 here.

Lit Support Leaders SuperConference: Socha

LIVE BLOGGING FROM THE ESTRIN LITIGATION SUPPORT LEADERS SUPERCONFERENCE:

Socha keynote highlights:

* 30-70% of EDD processing cost is in the review process -- in fact, it may constitute 30-70%  of entire litigation costs
* Eliminating the non-relevant matter can reveal the important matter -- Michelangelo's David emerged when the irrelevant stone was removed.
* Locating potential sources of data -- focus on concentric circles
* Deliver material in native files -- if a doc is a spreadsheet, don't send tiff files. send the spreadsheet. (difficult to redact or number, but you can work with it - and there are ways of tracking material.

* "Near-native" -- you want to receive the material in a usable format.

*"Near-paper" -- prolly the most common form -- converting to tif or pdf, extracting some (usually not all) of metadata and full text, handing over as a pkg -- attractive often, but $$ and time consuming. Can limit uses.

Photo - Socha, right, with Bill Long of AEA Group LLC.

Qualcomm Ruling: Recorder Stories

The Recorder provides this report by Zushe Elinson on yesterday's Qualcomm/Broadcom ruling. (See post below for the ruling download.)

Here's the intro:

Lawyers sanctioned for their roles in the Qualcomm discovery debacle have maintained that they would be exonerated if allowed to break attorney-client privilege and tell their side of the story.

Now they'll get their chance.

In a Wednesday order lifting the sanctions, U.S. District Judge Rudi Brewster wrote that six lawyers from Day Casebeer Madrid & Batchelder and Heller Ehrman should be allowed to defend their conduct in the failure to turn over key e-mails in a patent fight between Qualcomm Inc. and Broadcom Corp. Brewster reasoned that the self-defense exception to attorney-client privilege should apply because Qualcomm tried to clear itself while criticizing the attorneys in court declarations.

Brewster vacated and remanded sanctions ordered by U.S. Magistrate Judge Barbara Major on Jan. 7 against Day Casebeer's James Batchelder, Adam Bier, Kevin Leung, Christian Mammen and Lee Patch, and Heller's Stanley Young. The attorneys had filed objections to Major's order, which referred them to the State Bar of California for discipline.

Update: Here's a second story by Elinson filed today.

 

Smaller E-Discover Costs for Small Biz

In the days of only paper documents, smaller companies could afford to wait until they became involved in a lawsuit before they needed to worry about the costs of pretrial discovery. But today's reliance on digital information makes that an expensive strategy. Dreier partner Richard B. Friedman says companies can meet the requirements of the Federal Rules of Civil Procedure concerning e-discovery through a few cost-effective steps that can, in the long run, save both time and money in litigation costs.

Lit Support Leaders SuperConference: Mike Arkfeld

LIVE BLOGGING FROM ESTRIN LITIGATION SUPPORT LEADERS SUPERCONFERENCE

Presentation -- "The Deadly Sins of E-Discovery" from Michael Arkfeld:

Highlights:

* We haven't seen the tip of the iceberg re: sanctions
* There is no simple turn-key "solution"
* We are moving thru huge change -- not just tech, but cultural, in firms, in families -- moving from analog to digital
* Change is difficult --

Merrill: Chain of Custody White Paper

Merrill Corp. has released a new white paper on Chain of Custody for EDD.

Qualcomm/Broadcom Sanctions Ruling

Of interest to those following the Q/B case, a March 5 ruling from Judge Rudi Brewster re: sanctions:

Download show_case_doc1.pdf

Lone Star State of Technology

Greetings from Texas! Having an amazing time in the beautiful  Lone Star state...

It's been non-stop EDD, with visits to Stored IQ, Renew Data, Liquid Litigation Management , IEDiscovery and Message One in Austin, along with a chance to visit with LTN's EDD columnist Craig Ball and his wonderful wife, Diana Ball.

We also had a great lunch with Trisa Thompson, of Dell Inc.'s legal department, who has graciously agreed to join LTN's editorial advisory board!

The only sour note: our ALM  colleague Joe Pavone took a spill and shattered his achilles tendon and limped back to Phoenix -- send him a get well message to cheer him up!

We had planned to drop in and surprise ILTA's Randi Mayes -- but Joe's adventure unfortunately curtailed THAT plan.

Then it was off to Houston, where we met with Bridgeway Software Inc.,  and the gang at DataCert before we dove into Chere Estrin's Litigation Support Leaders SuperConference, at the Crowne Plaza.

If you are in the Houston metropolitan area, don't miss this conference. The faculty roster is loaded with LTN's "usual suspects,"  including keynote speakers Mike Arkfeld and George Socha, along with LTN edit board members Brett Burney and Tom O'Connor. We'd love to see you.

It's a great crowd, with top firms and corporate legal departments, including Exxon, Shell, Chevron, Bingham McCutchen, Howrey, Thompson Hine, Ropes & Gray, et al. Come join us! The fun starts at noon today.

Chere has kindly offered a FOF (friend o' faculty) discount of 10% -- so just tell them you saw it in EDD Update to claim your not-really-early-bird discount. Pop her an e-mail at for details or visit the website.

(Click to enlarge photos)

Qualcomm's Hard-Learned Lessons

What happened to Qualcomm wasn't the first case of e-discovery gone wrong, but it could be the most incredible. Seeking to tie Qualcom to the formation of an industry standard, Broadcom repeatedly sought documents that Qualcomm said it didn't have. Except there were documents -- 46,000 of them. Alan Cohen presents five lessons that Qualcomm and its general counsel learned the hard way, and reviews how other companies can avoid the same mistakes.

20-20 Hindsight: LTNY 2008

Just in case you missed it, here's the link to the Almost-Live From New York special editions of Legal Blog Watch. Special kudos to John Bringardner, for weaving it all together.

And here's the back story about how it all came about!

Missing White House E-mail

Law.com's John Bringardner spotted this Associated Press report about e-mail issues at the White House. (Apparently, George W. Bush isn't too fond of electronic mail.) Lots of comments from our "usual suspects!"

Update: John spotted this new book about the situation.

Fios' e-Discovery Technology Assessment service

Fios has announced its e-Discovery Technology Assessment consulting service, which will help companies assess existing and prospective technologies and their ability to address the various phases of discovery. More details here.