EDD Update

Cloud Computing Increase Expected in 2009

Even though the state of the economy is the main focus of much of our attention now-a-days, the New Year promises to be an exciting year with new and enhanced technologies.

One interesting technology trend is the movement we are seeing towards Cloud computing.  In 2008, 13 percent of software sales globally were for Cloud computing.  This is an estimated $36 billion in sales which is expected to increase exponentially in 2009.

Cloud computing is simply a general concept of reliance on the Internet for satisfying a person’s computing needs.  For example, Google Apps provides business applications through the internet that are accessed from a web browser.  The data is stored on the google servers and is not stored locally on the user’s desktop.  This is commonly referred to as “SaaS or Software as a Service”.  We are currently hearing a lot from Microsoft these days about them offering SaaS so even the biggest players in the industry are jumping on the band wagon.

The concept of cloud computing is a wonderful idea.  It allows large groups of computers to share the same IT infrastructure.  The users then access the resources virtually and not keep local copies, therefore, saving a lot on storage costs.

This past quarter, I attended a conference where IT professionals were discussing the benefits of switching to the Cloud computing environment.  They believed it would save them a tremendous amount of money and savings on energy. 

Enterprise

companies are stating that Cloud computing will support the future of data centers where as they would be able to provide fast access to a large network of users.

Since uses for cloud computing will increase exponentially over the next three to five years, we as eDiscovery professionals must be aware of this trend so we can advise our corporate counsel to have discussions with their IT departments so that if a decision is being made to move towards Cloud computing that the legal department’s needs are taken into consideration.   

#EDD 2009 Predictions

I predict the new year will bring with it several more rulings on Federal Rule of Evidence 502 as well as continued discussion on search and retrieval technology.  We can certainly expect Magistrate Judges John Facciola and Paul Grimm to continue advancing the e-discovery bar with their thought provoking opinions.  More cases applying to the FRCP e-discovery amendments to criminal law are bound to make their way into the books next year. 

More states, most notably California, will probably pass e-discovery amendments similar to the FRCP.  In addition, 2009 should be a great year for EDRM and the Sedona Conference as both organizations finalize papers that are bound to be hot topics in and of themselves.

Cecil Lynn

Ryley Carlock & Applewhite PA

The E-Discovery Zone

Last week Browning Marean and I recorded the first of a monthly series of web based discussions on discovery and technology that we have undertaken. Called The E-Discovery Zone, the broadcast is sponsored by TechLaw Solutions and is now available. 

This initial discussion featured a conversation with well known legal technologist, forensics specialist and EDD Update contributor, Atty. Craig Ball.  We talked about several subjects we felt were the major developments of 2008 and not surprisingly one of those was the shift of focus from paper based technology to the new  paradigm I refer to as "docNative"."

Now not everyone calls it that, of course. Browning and I did several webinars earlier in the year where we discussed this shift as the simply "the new paradigm".  Ralph Losey referred to it as the "paper prison" on his blog and Ken Withers talks about the "protodigitial age" with it's emphasis on "... objects from the analog world.." .

Craig, Browning and I had a fascinating discussion on this subject. We spoke about the digital educational level of attorneys (we found it generally lacking) and the resultant avoidance of e-discovery in many cases.  Ken Withers also made note of this in his article and states  bluntly that this deliberate ignoring of electronic information slows down " ... the truth-seeking purpose of discovery and evidence law."  Not surprisingly it is this issue that Judge Grimm also delves into at length in the Mancia decision.

We'll be doing a new recording every month as well as some live updates from LegalTech New York in February and we hope you join us.  Any and all comments most welcome because as Browning says, our motto is "often wrong but never uncertain".

Happy holidays to one and all ....

Poster Child of Non-cooperation

In a recent posting on a listserv, a user posted the following question:

I have a Project file that needs to go opposing counsel. They have not asked for any native format, but what is the best format to send it in? TIFF? or PDF? Thanks for your help.

In response, one user said:

Not to start a big "brew-ha-ha" but, I disagree w/ all of the replies saying to send your file in PDF format. As someone who works in a law firm, I can tell you that the golden rule for associates during the fact discovery phase is to NEVER make it easy for opposing counsel to review anything. Meaning, send it to them in a non-searchable format like TIF (if your client doesn't mind paying for the processing). Regarding PDF format, even if you were to send it in non-searchable format, that would essentially be useless if they use Adobe Professional, which of course most firms do use. They could make it searchable within minutes.
 
So, you should send them a load file with the document boundaries along with the related TIF images, and that's it. It doesn't need to have the original pretty colors, etc.

Later, in response to an objection posed by another user to this type of conduct the non-cooperative user replied:

If the parties didn't agree to format in the beginning after the complaint was filed, then there's nothing to explain! Obviously in this case, there was no agreed upon format for productions, which is why she posted the question with choices.
 
FYI: Document dumps with no searching capabilities is as old as ESI itself. The objective is to wear down the other side. This approach is about gaining advantage, not about morals.

I disagree.  I think a "big 'brew-ha-ha'" should be started. 

Fickle Futures, Failed Fortunes

Revisiting the still-disappointing film, "Total Recall" (1990), and the still-inspired, "Blade Runner" (1982).  I noted a Sharper Image store circa 2084 in the former and a neon-esque billboard for Pan Am circa 2019 in the latter.  Of course, Pan Am collapsed in 1992 and Sharper Image recently liquidated.  Instead of forging the desired continuity between two eras, anachronistic references to evaporated entities shatter the fourth wall and remind us how perilous it is to assume too much about the future.  A lesson not lost on film directors whose futuristic depictions of New York include the Twin Towers.

Wall Street's crystal ball is no better than Hollywood's (and of course, there's an e-discovery moral to our story). 

Wall Street's crystal ball is no better than Hollywood's (and of course, there's an e-discovery moral to our story). 

Top Five e-Discovery Cases of 2008

Ralph here, feeling very Letterman-like. I recently came up with my top five cases of 2008. I usually have the decency to wait until the year is over before I perform a postmortem, but Kroll Ontrack's own top 5 list came out last week, and I found myself disagreeing publicly with most of their choices. I thus painted myself into a corner and the only way out was to choose my own top five. I may come back to this risky ranking business later on and expand to the top 10 in true Letterman fashion, but for now here are my TOP FIVE CASES FOR 2008!

1. Qualcomm, Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008).
2. Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008). 
3. Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008). 
4. United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008).
5. Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008). 

PSS Systems refreshes Atlas

PSS Systems announced the next release of the Atlas Suite (Atlas 4) that aims to eliminate unnecessary legal risk and reduce discovery and data management costs, working across legal, IT, finance and business units.

The Atlas 4 release introduces 2 new modules that reduce discovery and data management costs and legal risk: Atlas for IT and Discovery Cost Forecasting.

The new suite also includes an “intelligent” legal-hold process in the Atlas 4 Legal Communications and Collections that claims to use less effort than alternative approaches to preserving and collecting data for litigation. In addition, the Atlas 4 Enterprise Retention Management (Atlas ERM) is a legal information governance program designed to establish global standards for retention and implement global governance procedures.

Fact buster

It used to be a well known fact that the rise in litigation costs, including the cost for e-discovery, drove many corporations and their lawyers to eschew court battles for alternative dispute resolution. But this is one fact that has become myth according to Thomas L. Aldrich. The experience of massive, uncontrolled document discovery, particularly with regard to electronic documents, has eviscerated most of the benefits of arbitration.

Privilege waived? Blame the tools or the rule

LDiscovery general counsel Leonard Deutchman discussed Rhoads Industries v. Building Materials Corp., No. 07-4756 (E.D. Pa. Nov. 14, 2008), in which Judge Michael M. Baylson of the Eastern District of Pennsylvania issued the first opinion to apply the new Federal Rule of Evidence Rule 502. He went on to examine whether Baylson’s analysis of the analytical tools was flawed, or whether the test for waiver itself is flawed.

Tilting at Windmills, Picasso-style

 "Discovery is a symptom," noted Jay Brudz, Senior Counsel for Legal Technology at GE." The problem is that the enterprise does not know what it knows."

There's the concession I've been waiting to hear.  Requesting parties are routinely lambasted and villified as blackmailers when they demand that opponents turn over relevant and responsive ESI.  How dare they ask for the evidence!  The shocking cost flows less from volume and complexity than from mismanagement and ignorance.

The suggestion that America's plaintiffs' lawyers are weaving scabrous plots to exploit  slovenly information management is paranoic and delusional.  The only folks more clueless about ESI than the companies that hold it are the lawyers asking for it.

Eavesdropping on E-Discovery at IQPC

Ari Kaplan attended the IQPC 6th Annual E-Discovery Conference in New York and captured some sound bytes that reflected the state of the industry in 2008 and offered insights into where the community will focus in 2009.

The update earlyCase software offers native support for EnCase images

earlyCase has developed its own method of reading images that have been created using the Guidance Software's EnCase software with its e-discovery namesake case assessment software. The company states that previously viewing contents and extracting files from an EnCase image required special software licenses and training, but now using earlyCase, litigation support staff can directly extract EnCase images for analyzing. Full release here.
 

#2009 EDD Predictions

Clearwell Systems in collaboration with Hewlett Packard offers 2009 EDD predictions. The companies suggest that  there will be more of an industry push for collaboration, and  expect Uncle Samto increase of compliance audits and investigations. Click here to see what Clearwell thinks your 2009 EDD future holds.

CaseCentral partners with CommVault

CaseCentral and CommVault state they hope to streamline, automate and minimize risk and cost associate with EDD through their partnership. Users of CommVault Simpana software will be able to index, search and retrieve ESI as part of the eDiscovery process while preserving the information using a legal hold archive. Relevant data can then be analyzed, reviewed and produced in CaseCentral's on-demand eDiscovery review platform. Click here for full release.

Metatomix Discovery suite

The Metatomix Discovery suite takes unstructured textual formats and integrates the information with structured and semi-structured data. Types of data that are able for analyzing  include incident reports, criminal history logs, text descriptions and narratives. The Discovery software can also  identify common themes for documents with free text boxes and comment spaces. Press release here.

Catalyst CR 7.5

Key enhancements to the upgraded software include transparent redaction in batch print, editing capabilities for saved searches and the ability to break large print jobs into multiple files. Read more here from Catalyst Repository Systems. 

FTI Consulting Debuts ESI Handbook

Co-Authored by FTI Consulting's senior managing director Adam Cohen, and independent writer and consultant Edward Kalbaugh, the ESI Handbook: Sources, Technology and Process addresses every facet of the e-discovery process. The book also includes a CD providing material that can be used and customized for immediate application. Read full release.

DoguLogix Project Tracking System

The Project Tracking System lets users track any type of litigation support service including electronic discovery, computer forensics, scanning, trial graphics and blow-back printing. Access full release here

Oce's Onsite Discovery Management

Oce  Business Services has launched a comprehensive outsourced discovery management service for law firms and legal departments. The Onsite Discovery Management is available in three service levels: the first level factors e-discovery processing, paper evidence processing and litigation technology management into a single system. The second level offers discovery processing, and the third level focuses on paper evidence processing. Press release here.

Exterro launches FusionGo

E-discovery vendors that continue in this competitive marketplace, and in these lean times, will need to cater to customer needs that demand ubiquity and mobility. Toward that end, Exterro announced FusionGo for the BlackBerry and iPhone. It hopes to support other smartphone models by March 30, 2009.

FusionGo aims to provide legal teams with a subset of Exterro Fusion that contains mission-critical features that include the ability to: view legal holds; receive real-time updates and access to matter and custodian information; and approve actions, upload information, and manage litigation hold and other e-discovery tasks. Exterro made FusionGo with the same functionality as the Web-based version of Exterro Fusion with the added capability of taking it to go. Click here to read more.

AW: 75% of Law Depts Face '09 Budget Cuts

Altman Weil has released a new Survey on Law Dept Cost Control that shows that 76% of responding GCS say their law depts face budget cuts averaging 11.5% for '09. And 15.6% say budgets will increase -- but by a smaller percentage than in prior years.

More than 80% of respondents cited outside counsel costs, and the unpredictable nature of legal spending. Third place, cited by 40% -- finanical exposure from litigation or potential litigation.

The survey was conducted in November and polled 1,292 GCs.

Kroll releases annual analysis of EDD cases

Kroll Ontrack has released its latest annual report on EDD cases, noting that courts remain unsympathetic to EDD ignorance or misconduct. It reviews 138 opinions issued during 2008, of which 25% addressed sanctions and 20% addressed production concerns.

New Article Explains the Real Reason e-Discovery Has the American Legal System on the Ropes

Ralph here - my blog on e-discovery this week is more controversial than most, as I once again challenge the competency of the paper-minded lawyers to practice law in a digital world: Why E-Discovery is Ruining Litigation in America and What Can Be Done About It. My lengthy analysis and opinion article rejects the popular delusion that e-discovery disasters are the fault of judges and the new rules. I examine the true cause of the e-discovery morass, but do now dwell on the negative. Instead, I spend more than half of the piece with suggestions on a way out, including an overview of how I go about doing e-discovery in an economical manner. Special thanks to The Sedona Comference and Jason Baron for that.

I also quote and use ideas from Kenneth Withers, Patrick Oot, Hans Christian Anderson, Geico's Caveman, the American College of Trial Lawyers, the Simpsons, the Economist, Judge David Baker, Paul George, Judge  J. Owen Forrester, and Supreme Court Justice Stephen Breyer. Oh yeah, there's some ideas of my own in there too, mainly synthesizing all of the above in my speciality, a semi-serious righteous rant.

Ken Withers was a major inspiration for this article and I quote at length from the excellent keynote speech he gave recently at the Georgetown University 5th Annual Advanced E-Discovery Institute Program. As Ken mentioned in this speech, he is trying to coin a new word (hey, everyone needs a hobby) -  protodigital. Read on to hear how Ken and I explain this new word.

Ch Ch Ch Changes

With EDD Update now more than a year old, Sean Doherty & I are considering how we can continue to improve it, to make it an increasingly valuable resource to you -- our readers. As mentioned below in a prior post, we encourage and invite you to send us your ideas and critiques.

But we've already decided to adopt a significant change: we are going to remove the requirement that EDD Update authors be a member of either the Law.com tech board or the Law Technology News edit board.

Why? For several reasons. Among them -- we strongly believe that this blog can provide a vehicle for new, fresh voices. While we very much value the expertise of established experts -- and want to invite more -- we also want to be sure that we are identifying new leaders, and providing a forum for them as well. Michael Arkfeld has been among those who have worried that there are not enough young voices in litigation support. We want to help.

Also fueling this desire was this fall's dismal reports about the lack of diversity in our legal community -- and embarrassing gender gaps in pay. We are committed to involving more women and minorities in our publications and efforts.

With those forces in mind, Sean and I have decided to open up our roster of authors. While we've always encouraged everyone to comment and join discussions -- but that's not the same as being an author. And hopefully, being an author can help bring attention not only to the great content we are producing, but to the great people who are contributing that content -- and help them thrive in their careers.

We still will restrict authors to non-vendors (with 600+ EDD vendors out there, it would be impossible to choose without inciting bloodshed). But vendors are, of course, encouraged to actively participate via our comments feature.

So -- we invite you to nominate candidates to join our team of authors. And yes, of course, please nominate yourself if you are interested. We're going to limit the blog to 40 authors for now. Send your nominees to either of us: monica.bay@incisivemedia.comorsean.doherty@incisivemedia.com

Stratify ups the ante for hosted data centers

Stratify, a subsidiary of Iron Mountain, recently announced the availability of a disaster recovery feature for e-discovery data in its hosted data centers. In effect, Stratify provides another option in handling hosted data for corporations and law firms

Stratify boasts that it is has a fully SAS-70 compliant data center that is “a giant step forward for electronic discovery” and “raises the bar for the entire industry,” according to Sue Feldman, Research Vice President, Search and Discovery Technologies, IDC.

This is all well and good for the corporation or law firm that needs such a full service. And to get there, you need to analyze the risk and manage it. That is, plan to mitigate the identified risk in the event it occurs.

But if you use a hosting provider for any stage of e-discovery, you should keep a backup of the data that you provide and request that you receive regular backups as work progresses in the event the data center goes south. Then you can take your data to another hosting provider.

With Stratify’s DR protocol, you would not have to make such elaborate backup plans. And, there is a reduced risk that backup data might be compromised in transit. But analyze the risk and get what you pay for. No more -- no less.

In-Depth Review of George Paul's Book "Foundations of Digital Evidence"

Ralph here - I wrote my first book review this long Thanksgiving weekend - The Ninth Step: Review of George Paul’s New Book “Foundations of Digital Evidence”. Please check it out and tell me what you think? 

It is a long review (4,500 words), but I felt that was necessary to begin to do justice to this important work. First, I start off by providing my own twist and put the general topic of digital evidence into the perspective of the EDRM model. That is why I called the review the Ninth Step, since evidence is concerned with the Ninth Step of Presentation. Then I add a long term prediction, a kind of a wish really, that as the first eight steps of e-discovery become more and more cooperative, our adversarial conduct will be channeled into the Ninth Step where it belongs - into courtroom battles as to the admissibility and weight to be given to ESI. You would be foolish to enter that fray without first arming yourself with the ideas and insights provided in George Paul's new book

Then I go into the contents and ideas of the book itself, and include extensive quotes of some of my favorite paragraphs. George Paul is a deep thinker and has flashes of poetic writing not often found in technical writing.  Please check out the book review, and more importantly his book, Foundations of Digital Evidence  (ABA 2008). Read on to see one of my favorite lines from George's book.

#2009 EDD Predictions

From Dan Regard:

As we wrap up 2008 and move into 2009 we will see a number of new challenges and changes: Penetration into more cases, more do-it-yourself tools, new frontiers into database applications, and new focus on e-discovery management.

First, as litigants become more aware of e-discovery rules and relevance, and as the use of digital information continues to grow in both raw volume and total percentage of the information in an organization, we will see a spread of e-discovery issues to mid-sized and small cases, not just in the large cases. This will increase the pressure for improved ways to relieve the volumes, the costs and the burdens on the court docket system.

Second, law firms and corporations will continue to seek the optimal balance between handling issues in-house and outsourcing to specialty shops. This will be influenced by an increase in the availability (and reliability) of off-the-shelf solutions for processing and profiling standard ESI, balanced with the increased risk of not having a true center of excellence and the dangers related to doing it yourself but getting it wrong.

Third, e-discovery will become more mature and parties will focus on issues beyond e-mail. This means, primarily, enterprise applications. This is especially true as companies continue to integrate systems to improve business efficiencies. The storage of information in non-email and non-document systems will increase the need to get information out of those systems.

Finally, all parties who participate in e-discovery will increase their focus on project management, which has been more responsible for e-discovery disasters to date than any technology gaps or failures. This will be much more than just preservation or the work performed at a single vendor. This will be the work flow management of the entire project.

Wednesday deadline: Best Use of Tech in Trial

All -- tomorrow (12/3) is the deadline to nominate law firms/law depts for the LTN Awards.
One of the categories is of keen interest to the denizens of EDD Update: Most innovative use of technology in a trial. Show your stuff!!!!! Get the accolades you deserve!

I'm not involved in the judging -- so if you have any questions, email kevin.iredell@incisivemedia.com.

Here's the nomination form (it's painless to complete)  Download LTN-08-345_LF_NomForm_save(3)[1]

Upcoming EDD Conferences

• The Sedona Conference Institute will hold its 3rd annual program on "Getting Ahead of the E-Discovery Curve," March 26-27 in Phillie. Info here.

• IQPC hosts its annual EDD Conference in NYC Dec 8-11. Info here

Nuix updates eDiscovery platform

Nuix Pty Ltd has released its enterprise eDiscovery software 2.16.

#2009 EDD Predictions

• Continued movement to the left of the EDRM model, driven by corporations' need to reduce or at least control costs and risks
• As part of the movement to the left, a growing battle on the litigation-hold front:  Yet more offerings emerging, yet more law firm-provider partnerships aimed at at getting in early and then staying in long, and a bit of carnage as well
• As part of the movement to the left, a wide range of new and enhanced service and software offerings whose common goal is to reduce the amount of data the reaches review for relevance and privilege
• More attempts at consolidation, with some of the new or recent attempts backfiring in a big way
• For every provider that disappears through consolidation or perishes due to economic challenges, others will rise in its stead
• A slow but growing recognition on the part of law firms that real internal e-discovery expertise takes time and money to build and maintain; while some firms have been systematically building out sound e-discovery practices, many others seem to have felt that all they needed to do was declare themselves to be e-discovery leaders and real leadership would follow
• Yet more e-discovery disputes at every stage of litigation, as more parties try out this newest arrow in many of their quivers

#2009 EDD Predictions

1) Consolidation – Uptick in the pace of consolidation between EDD service and EDD software providers.     2)  Partnerships – Increased level of partnering between EDD service and EDD software providers.

3)  Do It Yourself recession – Corporations and Law Firms will put expansion plans for internal EDD capabilities on hold due to budget constraints.

4) Search Technology – R&D efforts deliver ground breaking capabilities that could be a game changer.

 

How Can We Improve EDD Update?

EDD Update is now just a bit more than one year old, and we thank all of you for your strong, steady support. It's been our goal to provide you with breaking news, up-to-the-minute press releases, and news and analysis from our industry's leading voices.

But as we head into year two, how can we make it better? (And no, Craig, we are NOT going to eliminate the press releases :)  But what can we do to make it an even better resource for you?

Please dive into the comments, or if you wish to communicate privately, you can e-mail Sean et moi at monica.bay@incisivemedia.com and sean.doherty@incisivemedia.com.

THANKS!

Right from the Start

Craig Ball's December column in LTN should comfort many folks who are anticipating e-discovery projects. Don't be paralyzed by fear of failure or confusion about where to begin, he encourages -- with a list of tips to help guide you.

#2009 EDD Predictions

From Browning Marean:

* Industry consolidation
* Increased emphasis on proportionality
* Greater clarity in pricing models
* Grudging acceptance of need for cooperation
* Better workflow options
* Increased use of contract lawyers
* Hard times for offshore reviews (India)