EDD Update

...and Why Doesn't Daddy Log On Anymore?

 

I saw this wacky Microsoft ad and couldn't resist sharing.  I'm pretty sure the author is not e-discovery's own Tom O'Connor, a frequent contributor to this blog; although, based on the following "About the Author" at Amazon, I wouldn't rule him out:

Tom O'Connor, PhD., LMFT, has devoted his therapy practice to helping families grow and change as the world changes ever so swiftly around them. He first gained prominence in the '80s with his pioneering work on electric pencil sharpeners in the home. "Mommy" is his eighty-seventh book.  

Craig D. Ball, P.C. Announces Release of Absolutely Nothing 2.0™ for LegalTech New York

Austin, January 31, 2009 - Craig D. Ball, P.C., a leading national provider of e-discovery blather and enervative synergistic solutions announced the release of Absolutely Nothing 2.0^™ in anticipation of LegalTech New York.  Designed to work in conjunction with the company's flagship product, More of the Same,^™ Absolutely Nothing 2.0^™ sets a new standard for purpose-built, mission-critical marketing hype. 

"We looked at the burgeoning e-discovery market and saw firms and companies spending huge sums on products that delivered big promises but little else," said Craig Ball, the company's President.  "Absolutely Nothing responds to the growing demand for applications that offer best-of-breed pricing without saddling the enterprise with balance sheet headaches like value or ROI.  We are so confident that Absolutely Nothing 2.0^™ will meet expectations, we put our promise right in the name," added Ball. 

If you're coming to LegalTech NY (Feb 2-4), come see Craig D. Ball, P.C. at table #1234 in the lobby bar of the New York Hilton and become a beta tester for the company's development platform, Buy Craig a Cocktail (Premium Brand).  Complimentary aphorisms and homilies will be served (along with cheesy chotckes nabbed from the show floor that will make your five-year-old wonder why you bothered to cart that crap home). 

Seriously, don't miss LegalTech 2009 beginning Monday at the Hilton New York Hotel.  In challenging times, working smarter is, well, smarter; so, arm yourself with new ideas at the biggest legal technology event in the universe.  And remember: if you don't show, everyone assumes you're in trouble, so be there!

Orange Legal Technologies partners with OrcaTec

As a result of this alliance Orange Legal's OneO Discovery Platform has been enhanced with OrcaTec's near duplication and conceptual search capabilities. Click here for release.

The following white paper  written by OrcaTec's Herbert Roitblat, Ph.D. provides a brief overview of conceptual search in relation to electronic discovery.

Zubulake Judge to S.E.C.: You Can't Stay the (Usual) Course

A big thank you to Patrick Oot, Director of Electronic Discovery & Senior Counsel at Verizon, for sharing Judge Shira Scheindlin's opinion in S.E.C. v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009).  Her Honor is shaking things up in the EDD space once more (for those whose pod just hatched, Judge Scheindlin presided over the famous Zubulake case). 

The SEC v C&A opinion really shoots holes into what I think most assumed was an acceptable way to approach ESI production; that is, producing the data as it's kept in the usual course of business.  Moreover, the surprising approach Judge Scheindlin takes sets an eye-popping precedent for law firms, law enforcement, private investigators, regulatory agencies and even accounting firms.  It also articulates a newer, stronger standard for collaborative search than seen before.

What I Hate About Technology - Update!

I'm thrilled to announce that CommVault,  which offers e-discovery services, has just signed on to sponsor our upcoming "Trifecta" -- that includes a live program at LTNY09, six podcasts, and a report on the panel in Law Technology News and Corporate Counsel!

Anthony Paonita, editor-in-chief of Corporate Counsel magazine, and I are organizing the panel, and it should be a flat-out blast. We've got a GREAT crew of speakers, and a great topic: "What I Hate About Technology - and what i expect my outside counsel, opposing counsel, vendors and staff to do about it!"

Like our inaugural "FutureTech" program at LegalTech West Coast, this program is modeled on the famous TED lectures, with each speaker presenting a standalone, 12-minute presentation. Each one will be recorded as a podcast for my Law Technology Now podcast series. And then we'll have at least one article in LTN and CC based on the panel!

Ontrack Inview 5.6 now available

 This version gives users more control over their document review at each stage of the review lifecycle incorporating new Analytic Visualizaton, Categorization Logic and Product functions reports Kroll Ontrack in a recent press release.

What Lies Beneath?

With he news of layoffs at two EDD providers (i365/Metalincs and SPi), I thought you might want a sneak preview of Craig Ball's column "What Lies Beneath."

Ball warns us to be sure we have considered how to protect our firms and clients should a vendor evaporate.

View it here or download it here: Download Ball_In_Your_Court

Layoffs at SPi

The grapevine is humming about layoffs at SPi -- and possible reorganization (jettisoning EDD work) -- but no official statements yet. Will keep you posted as we hear more.

Autonomy to Acquire Interwoven

Breaking news: http://www.autonomy.com/content/News/Releases/2009/0122.en.html

1/26 Update: According to the company:

• Interwoven stockholders will receive $16.20 in cash for each outstanding Interwoven share, representing a premium of 36.8% to the closing share price of $11.84 on January 21, 2009, and a premium of 36.2% to the average closing share price over the 30 days through January 21, 2009.

Is Craig Ball the new Obi Wan Kenobi?

My latest e-Discovery Team blog is a lengthy (3,200 word) review of the new law review article by Judge Shira A. Scheindlin  and Jonathan M. Redgrave on special masters. Their article is entitled Special Masters and e-Discovery: the Intersection of Two Recent Revisions to the Federal Rules of Civil Procedure.

 In my perhaps over-fertile imagination the whole subject of Special Masters conjures up images of Star Wars and the Jedi Knights. Yes, Master. So I went with that theme a bit in this new blog and it led me to thinking of Craig Ball as e-discovery's Obi Wan Kenobi. He is, after all, the most experienced e-discovery special master to date, not to mention a master of The Force, well, at least the forces of e-discovery.

Please join us as a virtual panelist @ LTNY

Dear Friends:

I really need your help! I am in the process of developing the content for Legaltech Town Hall: a multi-media legal technology panel modeled after the CNN Youtube US Presidential Primary Debates.

The content of this panel is driven by a YouTube video blog that Incisive Media launched last month.

The site is located at: here.   (With a description at here )

We have 26 videos posted, but I would like many more than that. Thus, I ask you to join us as a co-presenter by asking a question via the Youtube portal to the panelists.

Kazeon implements new case-matter licensing options

Kazeon Systems introduced new pay-as-you-go pricing models focused on a case- or matter-based approach to e-discovery that will interest corporations, law firms, and service providers with hightened budget constraints for litigation in 2009.

The new pricing models augment their persistent software licensing option and enable customers to implement e-discovery software without a major financial investment. Kazeon's new licensing models include:

• Usage-based: Per GB pricing, providing eDiscovery software licenses for legal case matters of varying magnitudes; and
• Case-based license: Per case pricing, providing eDiscovery software licenses for legal cases or projects

The new pricing model comes with Kazeon's full compliment of e-discovery features including: agent-less, in-place early case assessment tools; analysis and review platforms; and legal hold management capabilities. With the pay-as-you-go approach, customers will not have to worry about add-on modules that accelerate e-discovery costs. But you will still need to size your project appropriately to predict cost.

Sanctions Granted for Discovery Refusal

Clothing company Liz Claiborne should be sanctioned for a "persistent refusal" to comply with discovery orders stemming from ongoing trademark infringement litigation with a smaller competitor, a federal magistrate judge has determined. New York Magistrate Judge Michael H. Dolinger concluded that Liz Claiborne fell "seriously short of what the discovery rules require" in litigation between jeans-maker Lucky Brand, one of Liz Claiborne's flagship clothing brands, and Marcel Fashion Group.

Nextpoint releases native file update

Nextpoint processes native file types from Microsoft, Lotus Notes and Adobe Systems. It integrates litigation support tools that lawyers need in post-production. Access release here.

Peak Review Metrics

Peak Review Metrics acts as a dashboard to provide multiple reporting functions to track individual and groups metrics. It's automated reporting function saves time and reduces overhead. Find out more about the software from Peak Discovery Inc.

Oce rebrands document review system

CaseData the enhanced version of dataDeliver, is an online system that helps legal professional collaborate, search, and review electronic data and scanned paper files for litigation and regulatory matters. Link to press release. 

Wave Releases Trident Pro 5.2

 Trident Pro Software 5.2 adds filtering options letting a users decrease the size of data sets for review. Access release here.

Mimosa Systems released NearPoint RCO

The NearPoint Retention and Classification Option provides the ability to automatically classify and tag archived content. Full release here.

CT Summation 2.6 has tag/folder ID

The upgraded CT Summation Enterprise software lets users divide a one image document into two.  Click here  to read about what other features have been enhanced. 

Catalyst Adds Foreign Language Tools

Catalyst Repository Systems announced in December the addition of foreign language search review services to its existing offerings.  Read more here. 

And most recently the company's Fast Track Program has gone "live". Full release here.

Editor's note: Thanks to commenter for alerting us to bad link. It's fixed now!

Don't Forget the iPhone

 

When requesting eDiscovery, don’t forget to ask for information from the user’s mobile devices, and, if needed, probe as to whether the mobile device has been used for cloud computing. 

Like many spouses, I received my first iPhone as a Christmas present from my wonderful husband.  I spent nearly my entire vacation day getting to know my new mobile device and downloading exciting applications that promise to make my life easier. As I started social networking through my iPhone, I was excited to see the many others I knew who also had my same mobile device.  According to MacDailyNews, by the end of 2008, over 13 million iPhones were sold.   An interesting statistic I learned is that daily website traffic from phones is 3% on the low-end and on 10% on the high-end of all traffic.  With easy to use new phones like the iPhone, daily web usage will only increase.

Told Ya So!

Back in April of 2008, I wrote here that a single overwriting pass was sufficient to obliterate hard drive data, and that the stories of post-wipe data recovery were preposterous--the stuff of urban legend.  I put my money where my mouth was and offered a new iPod to anyone who could prove me wrong.  No one ever did, but maybe no one cared enough to try.

Well, I'm happy to report that my friend, Dave Kleiman, and colleagues, Craig Wright and Shyaam Sundhar, definitively proved that multipass erasure is a waste of time, and that one good pass is more than sufficient to protect data from recovery despite heroic efforts.

Rule 502, where are you?

Anyone remember “Car 54, Where Are You?” Well, that’s probably another story. On where Federal Rule of Evidence Rule 502 is, Hangley Aronchick’s John S. Summers and Michael D. Gadarian find it with two flags: (1) The rule flips the current presumption on subject matter waivers on its head and (2) it falls short of providing guidance when “fairness” requires a subject matter waiver.

Being Right and Still Losing

Courts have made it clear that electronic discovery misconduct can result in severe sanctions even when the offending party prevails on the merits. Counsel and clients who believe that being right on the merits relieves them of the duty to comply with e-discovery do so at their peril, says Leonard Deutchman in the Pennsylvania Law Weekly.

Court Rules That Metadata Aren’t Public Records

An Arizona appellate court ruled that metadata is not part of the public record. The majority opined that metadata was produced as a byproduct of a public officer’s performance of duty, its creation or preservation wasn’t required by law, and the public transaction recorded was not the metadata.

ACC hosts an E-Discovery Luncheon

The Chicago chapter of the Association of Corporate Counsel, Chicago will host a complimentary e-discovery luncheon on Friday, January 16th. Only catch is you must be a ACC member or potential member. Click here  for more details.

4 Acrobat Legal eSeminars

Interested in discovering how the Acrobat 9 Product Family can help you save time, meet deadlines, and deliver intelligent documents in ways you never imagined. Register here for any of the following.

Acrobat 9 for Legal Professionals: Save Time, Meet Deadlines

Thursday, January 15th, 2009 - 1:00 P.M ET / 10:00 A.M. PT 

Learn how to share and manage your legal documents more securely with Adobe® Acrobat® 9 Pro Extended software. See how to create forms and PDF Portfolios and use legal specific features such as Bates Numbering and Redaction.

2008 Cases Reviewed

In January's Law Technology News EDD showcase, authors Cecil Lynn III and Alexandra Hicks -- both of Ryley Carlock & Applewhite -- review key decisions in 2008, and their impact on electronic discovery.  Click here for full article.

Although the Federal Rules of Civil Procedure provided clarity with respect to ESI, complying with Rule 34 as interpreted by the courts has stumped many litigators.

Check out what Ropes & Gray's Shannon Kirk and Kathryn Hong have to say in this sidebar Rule 34 Confusion

New blog discusses knotty issues

California attorney Joshua Gilliland tackles EDD issues including the application of the Federal Rules of Civil Procedure, and Federal Rules of Evidence to technology, Web 2.0, text messages, and instant messages  in his new blog, Bow Tie Law.

Is collaboration jeopardizing EDD security?

Web 2.0 covers a wide gamut -- including mash-ups, wikis, blogs, social search, RSS feeds etc. But while these collaborative tools are easy to use, they can hamper a company's security. Ganesh Vednere questions whether we are all "Out of Control" in the Jan. issue of Law Technology News.

iConectnXT Upgrade

In a press release  issued today, iConect Development reports that it has added a .tiff -on-the-fly feature to iConectnXT, helping legal teams redact native files on their own, without contracting a third party vendor. 

 

Break Out the Books

With EDD exploding, many law schools are slow to adopt an EDD curriculum and failing to give their students a competitive advantage. Here's what LTN contributors William Hamilton & Ralph Losey have to say in "Break Out the Books," from our January EDD showcase:

"There is no doubt that our current legal system in severely stressed by electronic data discovery, and in need of repair. Until recently, most law schools ignored the problem; indeed, many seemed oblivious. At best, EDD drew only a passing mention in civil procedure textbooks."

Read  more.

It's Nothing Personal

With privacy laws varying throughout the globe, companies must be careful not to accidentally disclose personal data like credit card pins. 

LTN's January EDD Showcase author Bill Onwusah offers insight as to how an employee's privacy can be compromised at work, causing discovery problems. more

#EDD 2009 Predictions

Rob Robinson of Orange Legal Technologies offers some 2009 Predictions in a recent post:

Is It Time Wean Your Organization From In-House IT And Integrate More SaaS-Based Services?  

Prediction:  eDiscovery SaaS Consumption Will Experience Strong Growth In Both Corporations and Law Firms. 

Predication:  Capability Now Exists + Time Savings + Monetary Benefit + Risk Mitigation (Investment Protection)

Click here  for more of his commentary.

Inappropriate Behavior

Jason Baron is Director of Litigation for the National Archives and Records Administration.  When he's not scouring the West Wing for wayward e-mail ("Dick, I know that PST was here a second ago!"), he is the go-to guy for thought leadership in electronic search.  In fact, here in the Texas Hill Country, we call him the "Sultan of Search," and hope that all y'all are fixin' to do it, too.

Jason was kind enough to send over the hot-off-the-bench decision in IN RE: FANNIE MAE SECURITIES LITIGATION, No. 08-5014,out of the U.S. Court of Appeals for the D.C. Circuit.  Yes, a rare appellate court decision on e-discovery!  This is one we will be talking about for a while because the unfortunate outcome--much like the Victor Stanley case--has much more to do with mishandling of the case before the trial court than issues unique to e-discovery. 

Court: Fed Agency Must Spend $ to Comply

Appeals Court Requires Federal Agency to Spend 9% of Its Total Annual Budget to Comply with 3rd Party Subpoena of Electronic Records:

The United States Court of Appeals for the District of Columbia on January 6, 2009 issued an opinion affirming a contempt order against the Office of Federal Housing Enterprise Oversight (“OFHEO”). In re: Fannie Mae Securities Litigation 2009 U.S. App. LEXIS 9 (D.C. App. Jan. 6, 2009). The net result of the opinion is to affirm orders that required OFHEO to incur over $6 Million in expenses to respond to individual defendant discovery requests. The appeals court noted that this was more than 9% of the agency's entire annual budget, but did not seem too troubled by that. OFHEO was not even a party to the suit where they were required to bear this enormous burden. No wonder the government is going broke, just like many of the homeowners that Fannie Mae and OFHEO were supposed to protect. 

How could such a thing happen you may well wonder? It is the usual answer. If you are a regular reader of the e-Discovery Team blog, you know what it is already. 

Alexander Gallo Holdings gets Verdict

Alexander Gallo Holdings, a privately-held court reporting and litigation support services, acquired Verdict Systems, developers of Sanction and Verdical as well as the service Sanction Solutions.

Alexander J. Gallo, CEO, hopes that the acquisition fulfills one of its primary goals to offer “cllients a complete suite of services to handle all of their litigation needs from discovery through trial.”

That seems to be the holy grail in the e-discovery business. An admirable, albeit elusive, quest given the vagaries of litigation.

Socha/Gelbmann poll will add interactive tools

Contrary to circulating rumors, George Socha and Tom Gelbmann reported in the January issue of Law Technology News that their annual Electronic Discovery Survey is alive and well. This year's survey will feature a web-based provider selection tools as well as more in-depth information to subscribers, including full use of the provider selection tool and fell access to most categories of data from or about providers.

& The Winners Are:

I am thrilled to announce the winners of the Law Firm/Law Dept. 2008 LTN Awards, which will be presented on Monday, Feb. 2 at our LTN Awards dinner:

The judges were Andrew Adkins III, of the University of Florida Law School; Fredric Lederer, of the College of William & Mary School of Law; and David Whelan, of the Law Society of Upper Canada.

The winners are:

IT Director of the Year:  Constance Hoffman, Bryan Cave

Champion of IT:  Joy Heath Rush, Sidley Austin

The Most Innovative of Technology:
— in a Law Firm:  Outlaw, Fish & Richardson
— In-House:  Vulcan Legal Exchange, Vulcan
— In a Trial:  Hynix Trial, Bartko Zankel
— in a Pro Bono Project:   Weil Gotshal

And the judges created a new category, which will continue forward:

Consultant of the Year:  Donna Payne

And I am also thrilled to announce that we will launch a new category, Lifetime Achievement Award, to honor a legal technology leader (55+) who has contributed mightily to our community. I will judge this category — so start thinking of nominations for next year!

I offer my 2009 predictions in the latest issue of Law Technology News, and while I hope the whole column is worth reading, I at least managed to amuse myself with this excerpt:

"The federal EDD rules are two years old.  As every parent knows, the "terrible twos" are when toddlers, frustrated by their lack of language skills, turn to hitting, biting and tantrums.

Pediatrician Vincent Iannelli, writing for About.com, advises parents coping with the terrible twos to:

• Establish and stick to regular routines;
• Limit choices to exclude unacceptable alternatives, but share the decision-making process;
• Make the environment safer to explore by removing what's not needed;
• Discipline by taking away privileges; and
• Expect to see the limits tested by those exploring what they can get away with.

Perhaps I see e-discovery in everything, but isn't that a list of EDD best practices?"