EDD Update

Crowell Moring E-Discovery Alert

Crowell Moring offers this EDD alert about a new SEC enforcement manual, and the participation of partner Jeane Thomas as co-chair of Georgetown's E-Discovery Institute next month.

Coming to Terms on Mining Metadata

Bar associations have issued opinions on what circumstances a lawyer may ethically review an adversary's metadata during discovery. Outside of the discovery context, they are divided on whether a receiving attorney may review metadata not stripped from an adversary's documents.

Chevron's Google Link Gets the Gag

A trial in San Francisco over Chevron's Nigerian operations featured a new online frontier. Northern District Judge Susan Illston put a gag on a paid Google link that directed Internet surfers to a Chevron-created Web site providing information about the incident at issue in trial.

Commentary on the Masters Conference

In its third year, the Masters Conference has matured into a resourceful and reflective assembly to discuss, in detail, e-discovery challenges with experts. According to consultant Brett Burney, this year's conference was successful in both substance and attendance.

Special Discount for GC teams: Mastering Discovery

Heads up, GC teams -- Our legal events team is offering a special discount for the upcoming Mastering the Discovery Process for the General Counsel program, which will be held Monday and Tuesday (Nov 3 & 4) at the New York Marriott Marquis hotel, sponsored by our colleagues at Corporate Counsel magazine.

CLE and CPD credits available. Members of GC teams can attend for a special discount rate of $795. (Vendors are welcome to attend at $2,495.)  Just use promo code EDDU.

 

The event is chaired by Jonathan Siegfried, right, partner at Dewey & LeBoeuf, and faculty includes Craig Ball, Law Technology News' award-winning e-discovery columnist, as well as Alexander Arato (CA), Courtney Barton (Crowell & Moring), Michael Berman (Rifkin, Livingston), Laura Buckland, (T-Mobile USA), Christopher Clark (Dewey), Scott Cohen & Brad Ruskin (Proskauer), Judges James Francis & Andrew Peck,  Stephen Ludlow (Open Text Corp.), Scott Martin & Bruce Meyer (Weil Gotshal), James McGinnis (Sheppard Mullin), Kent Roger (Morgan Lewis), Jay Safer (Locke Lord), David Shonka (US FTC), Alexander Vasilescu (SEC), Robert Weiner (McDermott), Milt Williams (Time Inc.) and Michael Zweig (Loeb & Loeb).

Here's the brochure with further 411: Download masteringdiscovery.pdf- 8-28.pdf

Really Thinking Inside the Box

I've long been fascinated by how past generations tended to imagine the future, and how far short those visions fall.  I don't own a single metallic jumpsuit (at least not since the death of disco).  My Prius talks and starts at the push of a button; but I still have to drive, and it stubbornly refuses to fly.  In fact, nothing in my life hovers or defies gravity even a little.  None of the furnishings in my home are polycarbonate.  Neither the kitchen nor the bathroom are fundamentally different than they were a century ago.  My front door merely swings silently on hinges--sans Star Trek whoosh--and doesn't greet me as I approach. I can't vacation on the moon or the ocean floor, and I've never been served a cocktail by a robo-butler nor had sex with an android pleasure unit.  Frankly, I feel a tad let down.

Back in the early 1980s, whatever we imagined a computer would look like in 25 years hasn't come to pass.  Certainly, the voice and gestural interfaces don't exist, but even the boxes that house laptop and desktop systems haven't changed all that much.  Inside the boxes, computing power and storage went through the roof; but outside, it's still a clamshell laptop or an AT-style case.  Even data centers haven't seen dramatic change. Virtualization has effected invisible changes, but outwardly things in those chilly, windowless bunkers look pretty much the same as a decade ago.

So, it was refreshing to see something new in system packaging that is dramatically different, at least in terms of scale.  It turns out that tomorrow's data center won't look like the bridge of the Starship Enterprise or HAL 9000.  Instead, it will bear a uncanny resemblance to a truck stop or maybe your local container port--more Blade Runner than Minority Report.  Both Microsoft and Google are committing fabulous sums to building containerized data centers, where 40 foot shipping containers just like those that carried everything on the shelves of your local Wal-Mart from China house thousands of servers.  These become giant electronic Legos, plugged in and pulled out like blade servers, but with a crane or semi.

From proactive EDD to compliance and governance

I spent a few minutes with Fulbright & Jaworski partner Robert D. Owen, prior to his opening remarks at the Masters Conference. There, he planned to give attendees a few things to think about during the conference and revealed some of the findings to Fulbright's Annual Litigation Trends Survey.

Fios rebuilds Prevail and adds a search engine

Fios Inc. reports its hosted review platform Prevail has been configured with a concept search engine from Content Analyst. The company has also added iConect's flagship product iConectnxt to its Data Management Center.

Press release here.

Mimosa Systems offers tiered storage option

Live content archiving provider, Mimosa Systems Inc. reports that by adding a Tiered Storage Option module to an existing NearPoint platform, IT administrations and legal stakeholders are given the power of intelligent provisioning of content to multiple tiers of storage within the archive. This thereby speeds up the e-discovery review process by staging potentially responsive data on a high-speed disk, making content accessible to legal review staff.
Press release here

Recommind launches Insite Legal Hold

Insite Legal Hold helps companies pexplore, preserve and collect ESI in preparation and compliance with litigation, regulatory oversight and all types of investigations. It integrates with various data sources such as content management systems, e-mail / archiving systems as well as intranets and portals resulting in uninterrupted transitions with an existing network infrastructure.
Click here for full release.>

Guidance EnCase Legal Hold

Guidance Software Inc. has released EnCase Legal Hold, a web-based litigation hold and tracking solution that integrates with EnCase eDiscovery, a platform for the identification, search, collection, preservation and processing of electronically stored information (ESI). This integrated solution lets corporate legal departments not only to identify and notify custodians for legal preservation holds at the outset of litigation, but also to manage, track and report on the actual preservation, collection, and processing of ESI.
Click here for release

Autonomy captures and archives Blackberry SMS

Autonomy Corp., announced this past summer that its software and hosted services for end-to-end eDiscovery and archiving enable the compliance archiving and search of BlackBerry® Pin-to-Pin and SMS messages, helping organizations to manage risks associated with mobile communications and comply with strict regulations such as the Federal Rules of Civil Procedure (FRCP).
Press release here

CaseCentral

CaseCentral a provider of eDiscovery software for corporate counsel and law firms announced the general availability of the third version of the CaseCentral eDiscovery review platform. This release ensures repeatable, defensible and measurable eDiscovery processes on one case or multiple cases, across any number of law firms and other parties, and delivers the first integrated Enterprise eDiscovery Dashboard with process analytics which monitors all cases, measures all reviewers and provides law firm statistics across matters.
Click here for release

Sherpa Software

Sherpa Software today announced the latest releases of Discovery Attender for Exchange and Notes. The new versions, Discovery Attender for Exchange version 3.0 and Discovery Attender for Notes version 6.4d/8.0, include enhancements that aid in the production of responsive information for litigation, e-discovery and internal investigations while still offering a non-intrusive architecture, easy-to-use interface and attractive price point.
Read more here.

iConect plans to offer a SQL Server Connector

iConect Development released plans to offer a Microsoft SQL Server Connect to corporations and their outside counsel in Q1 2009. The connector will facilitate the company's flagship product iConectnxt into a secure web-based interface for document data hosting by leverage the customer's existing SQL Server. Press release here.

IE Discovery offers improved AutoReview tools

IE Discovery has upgraded its InfoDox platform with enhanced integration of its AutoReview automated review tools. With the upgrade users can now preview automated review results immediately – before agreeing to scope with opposing counsel and identify documents most relevant to the claims at issue.

Read more here.

Verdict Systems upgrades Verdical

Enhanced features included with the release of Verdical 1.2.1.0 are:
Add “condition” coding fields for each case item
Append Bates numbers with conditions
Automatically omit previously produced items from production sets
Faster overall performance

http://www.verdical.com/company/press%20releases/?getRelease=2008VerUp1210&title=Verdical%20Update%20Released&date=August%2028,%202008

Kazeon has released version 3.1 of IS 1200-ES

Kazeon Systems, Inc. announced the availability of Version 3.1 Information Server IS1200-ECS. The new version introduces a new in-place legal hold, KazHold™ and a new agent-less product for in-place analysis of and collection from laptops/desktops.
Read more here.

First Pass Processing from Metalincs

MetaLincs First Pass Processing is available as either an appliance or a a managed service. First Pass Processing starts by extracting relevant EDD data, and then reduces the data size through deduplication, at the same time it prepares the data for future analysis, review and production. Designed for IT department, MetaLincs report this process can be rolled out within an hour. Press release here.

Kroll ESI Survey

Kroll Ontrack Inc. has released its second annual ESI Trends Report, which tracks developments in processing of electronically stored information. This year’s poll included 203 companies in the United States and 200 in the United Kingdom.
Kroll found that 70% of U.S. and 53% of U.K companies now have ESI protocols in place, yet one in four organizations (28% in the U.S., 23% in the U.K.) complain that increasing volume of data is a major challenge. Many respondents say a lack of time and resources is distracting them from implementing ESI programs: 31% (U.S) and 27% (U.K).
The survey also reports a 25% shift from 2007 in the allocation of ESI responsibility to IT department for policy development and enforcement.

Key Concept Explorer available on Catalyst 7.4

The Key Concept Explorer feature on Catalyst 7.4 helps users better visualize concept search results and relationship between documents reports Catalyst Repository Systems. The software also offers Review Module upgrades such as bulk save review rules to an entire set of documents, including new reports to analyze review status and individual reviewer productivity. Press release here.

IBM"s eDiscovery Analyzer

IBM Corp.'s conceptual search and content analysis software eDiscovery Analyzer helps legal professionals speed up their e-discovery process, as they collect and access evidence. The company has also released the eDiscovery Manager giving organizations a platform for managing their content and business processes. Read more here.

Another Excellent Effort by Judge Paul Grimm

Federal Magistrate Judge Paul Grimm of Maryland penned another magnum opinion delivering a pointed, scholarly and thoughtful exploration of the biggest abuses plaguing discovery.  Mancia v. Mayflower Textile Services Co, No. 1:08-CV-00273-CCB (D. Maryland 10/15/2008) isn't as daunting as Grimm's opus in Lorraine v. Markel or as eye-opening as his Victor Stanley v. Creative Pipe, but it has the distinction of being the first reported case to laud The Sedona Conference Cooperation Proclamation, a manifesto that's more than just a pipe dream because it comes coupled with a genuine commitment to develop the tools to make it work.  More, Mancia forecefully articulates the impetus for courts to use sanctions to both punish and deter boilerplate requests and objection--a specie of lax lawyering that's long overdue for extinction.

I don't know who squealed, but Judge Grimm knows that by rationalizing the use of boilerplate as "zealous advocacy," it's been a guilt-free cha-cha-cha to let the "zeal" thing crowd out the "officer of the court" thing.  He reminds us that lawyers owe a duty to something more important and noble than victory, and that when we serve a request or make an objection, we are giving our word that we looked before we leapt. 

Just more high-minded tosh that poses no threat to business as usual?  Don't bet on it.  You can pull the mask off that ol' Lone Ranger, but you don't mess around with Grimm. 

Be sure to read Mancia before you reflexively trot out "any," "all," "overly broad" or "unduly burdensome" in your next discovery request or response.  Take a moment to scrutinize the requests and objections at issue in Mancia, then ask yourself, "Is my work really that much different?"

Updates from The Masters Conference

I (Brett Burney) am attending The Masters Conference this week and will be posting periodic updates about the events on my blog - www.ediscoveryinfo.com.

In addition, I am also "Twitter-ing" the events on the ediscoveryinfo Twitter account which allows me to post short, frequent reports on the sessions as well as link to pictures taken at the conference.

If you don't already have a FREE Twitter account, just sign up and click the "Follow" button on the ediscoveryinfo page. (And if you're interested in e-discovery news, be sure to also Follow the complexd Twitter account from Orange Legal Technologies.)

Lastly, if you're not keen on real-time updates, I'll be submitting a post-conference round-up to Law.com covering the show and panels.

California Bar Puts "New" EDD Standard of Professional Conduct in Writing

It's always a pleasure to hear from my Bay Area buddy, Richard Best.  Commissioner Best served the San Francisco Superior Court for almost thirty years and now functions as a private judge and discovery referee.  But, I think more people know Richard for his longtime missionary work spreading the gospel of forensic technology and civil discovery.

Richard reports that the Litigation Section of the State Bar of California sent a copy of its "E-Discovery Pocket Guide" to its 10,000 members and every California judge.  With such wide distribution by the Bar and its strong language listing concepts litigators "must" understand, I wondered whether it sets a new floor of professional responsibility for Golden State attorneys.  Richard thought otherwise, but not in the way I expected.

Could this Be a Low-Cost, Idiotproof Harvest Tool?

I swear I read more in Law Technology News than just my own column, but I confess that sometimes I move, er, um, a tad more briskly through the product announcements than the articles.  I need to stop that because, leafing through the October 2008 issue, a gadget caught my eye on p. 16 that offered a glimmer of promise as a cool tool for desk side collection of ESI.

Huron Consulting Group Legal Holds Survey

Huron Consulting Group partnered with the Compliance, Governance and Oversight Counsel  to survey Global 1000 companies with annual revenue from $5 billion to more than $150 billion, in a variety of industry sectors, about legal holds. About 50 companies participated.
Key findings of the included an increase in issuance of holds — 80% of respondents said their companies issue legal holds for every matter, the other 20% say they use risk and case analysis to determine holds.

Fulbright & Jaworski Lit Trends Survey

For Fulbright & Jaworski's 2008 Litigation Trends Survey, conducted by Greenwood Associates, respondents included 348 corporate counsel in the U.S. and U.K., spanning 10 industry groups. The survey reports decreased litigation, including a 10% decline in plaintiff filings, and a 5% decline in regulatory proceedings. However, 32% of respondents noted a jump in multi-plaintiff suits stemming from wage-and-hour claims by employees, and others cited a rise in privacy lawsuits.
The volume of litigation remains large, however, and 79% of respondents reported fielding at least one new lawsuit in the last year, with 27% facing more than 20, and 18% more than 50 new actions. 

Can E-Discovery Counsel Meet Clients' Needs?

With the climbing complexity and cost of electronic discovery, which involves mining electronically stored information for litigation, law firms are seeking out ways to meet clients' needs. E-discovery counsel, acting as a central point of reference, are emerging as one answer.

How Rule 502 Affects Lawyers and E-Discovery

Chadbourne & Parke attorneys Robert Schwinger and Eric Twiste explain how the new Rule 502, which was signed into law last month, is intended to reduce significantly the costs of pre-production document and privilege review, especially in cases involving electronic discovery.

E-Discover is not overwhelming for everyone

Attorney Ralph Losey writes that "e-discovery teams can meet the challenges of the 'Zubulake duty' and control excessive costs." Losey describes Judge Scheindlin's Zubulake duty as an affirmative duty to understand a client's computer systems to know where potential evidence is stored. He follows that duty through New Jersey and gives a recipe for crushing e-discovery costs.

Goggles offer "I" Protection Missing in EDD

When I read about Google's new "Mail Goggles" utility, I wondered if the folks in Mountain View were playing one of their famous April Fools Day pranks out of season.  Google Goggles (yes, like protective eyewear) requires you to rapidly solve five math problems before you can send drunken e-mail on Friday and Saturday nights.  If you get stinking and stupid on a different schedule, you can adjust the program to your personal Oktoberfest.  You can even set the level of difficulty, in case you work on Wall Street and numbers aren't your strong suit.

Imagine that, a breathalyzer for e-mail!

What does this have to do with E-discovery?  I thought you'd never ask.  Read on....

USB GC Pays $6.5M to Settle Insider Trading

From our colleagues at The American Lawyer's Litigation Daily

 

Edited by Andrew Longstreth:

Beware the E-Mail Trail: Former UBS General Counsel Pays $6.5 Million to
Settle Insider Trading Allegations

It wasn't just the market that took another blow to the gut yesterday. So
did the reputation of David Aufhauser, the former UBS general counsel for
the Americas, who agreed to pay $6.5 million to end an insider-trading
investigation of his sale of personal holdings in the auction-rate
securities market.  

IT gets a view of e-discovery from PSS Systems

A new module for PSS Systems' Atlas LCC and ERM gives IT a view of the legal obligations on data management and information processing. The new module, Policy Atlas for IT, amounts to a legal governance portal for IT that provides a self-service station for IT to determine current legal obligations on data, e.g., legal holds, retention schedules, and discovery requests. IT can view the information through filters by system, data class, and employee.

Fight Spurious Spoilation Allegations

Billingsley filed this story for Texas Lawyer, on Sept. 26, about how to fight spurious spoilation allegations.

From the Law.com Legal Technology Bulletin -to subscribe free visit here.

Merrill Corp offers Meet & Confer webinar

Merrill is offering "Meet & Confer: How Preparation Can Deal You the Upper Hand," a one-hour webinar.
411 here.

ARMA in Vegas this month

ARMA is hosting a Legal Technologies Symposium this month in Vegas. 411 here.

Ups and Downs of Discovering Online Data

The New York Law Journal offers this article by Shari Claire Lewis, a partner at Rivkin Radner, about how the cost of responding to legal process for e-businesses can present a "Hobson's choice" -- disclose data rec'd in exchange for the promise to kee it private, or honor anonymity by refusing to respond.

From the Law.com Legal Technology Bulletin -to subscribe free visit here.

California's EDD rules vetoed by Ahnold

Scott Graham of The Recorder alerts us to the news that California's well-vetted proposed E-discovery rules were among the zillions of measures vetoed by Arnold Schwartzenegger when he approved the budget.

Read more here (sub req'd)

Ex-McAfee GC's Fate in Jury's Hands

Our colleagues at The Recorder have this story about Kent Roberts' trial, which went to the jury Tuesday after the defense rested w/o calling witnesses. Cooley's Stephen Neal "simply read aloud a stipulation to inform the jury about McAfee's late production of relevant e-mails at the beginning of the trial," notes Law.com.

Photo of Neal by Jason Doiy