eDiscovery Plain & Simple Free Webinar

Authors of the new book eDiscovery Plain & Simple, Allison Brecher, Corporate Counsel for a Fortune 200, and Shawnna Childress, Co-Founder and Executive Director of Women in eDiscovery, are teaching an eDiscovery educational webinar on Tuesday, August 4 at 1:00 pm EST/10:00am PST.

This free webinar is a "crash course" in electronic discovery and the information technology that organizations use to generate electronically stored information — all explained in a "plain and simple" way. 

Storming the Magic Kingdom (or Vice Versa)

It finally happened.  One month ago, Governor Arnold Schwarzenegger signed the California Electronic Discovery Act into law.  Naturally, we Californians just have to do things our own way, so our rules do not comport to the Federal rules in many important respects.

Since my blog, e-Discovery Insights, focuses on navigating the California Court System (the largest in the world, by the way...), I've been a little busy since then.  Based on the conversations I've been having, I'm pretty sure a lot of corporate offices resemble the title to that Jodie Foster movie; Panic Room.

My goal has always been to lower the tension level by making e-discovery a little less intimidating.  As a guest-author of EDD Update, I intend to continue in that vein and as usual, will be contrasting our approach to e-discovery with, well, the rest of you.  So, if you ever have cause to be in a California court, if I'm successful you'll walk in better prepared.

Hey - this ain't no Mickey Mouse operation...

Kazeon Domino Manager

Kazeon's eDiscovery Domino Manager threads e-mails across different servers and presents them in a chronological tree diagram.The software provides data mining for Domino environments in order to find and manage critical documents and e-mails. Full release here.

Xerox Litigation Services has two new e-discovery tools.

Law firms and in-house counsel using Xerox's  E-mail Analytics, can simplify the discovery process and build stronger cases by instantly uncovering relevant correspondence and key witnesses within specific time periods.

The Foreign Language Identifier tool can detect over 45 languages reports Xerox. It automatically determines which languages are contained within a document, and provides a percentage breakdown of each language.

Orange Legal Technologies Cites $ Spike

From Rob Robinson:

Orange Legal Technologies announced a 26% increase in revenue growth between 1Q 09 and 2Q 09.  This  follows the strongest revenue year (08), the strongest fourth quarter performance (4Q 08), and the strongest first quarter performance (1Q 09) in the 14-year history of the company.

Full release here.

iConectnXT Offers SQL Server Connector

With the new Microsoft SQL Server Connector available on the iConectnXT review platform lets users add worldwide document review and collaboration capabilities to their existing SQL Server. Law firms are able to edit or import/export document data within the server, or use in-house custom SQL programming for transferring data to and from their existing production and capture tools. Here for full release.

Anacomp CaseProduction 2.0

CaseProduction is a production module of CaseLogistix  a litigation review platform that helps users manage productions of various sizes, formats and complexity. Version 2.0 includes post-production load file renegeration and proactive file management. Access full release here.

DiscoverReady Opens Third Document Review Facility

New York-based DiscoveryReady has further expanded its document review outsourcing services with the opening of a new office in Charlotte, North Carolina. The Charlotte office located at 129 West Trade Street will be managed Matthew Miller, a former Womble Carlyle Sandridge & Rice IP litigation attorney. Click here for more information.

Know Offers Webinars for Paralegals

Cherie Estrin's Know magazine is hosting  a series of one-hour webinars:

1. August 18:  Case Document Management. Categorization by document type and issue coding; Building a universal system for every case.

2. September 14: Organizing Discovery Documents. Responding to document production request; Organizing and tracking documents from the client

3.  September 21:  Manual vs. Automated Retrieval Systems. Document coding and numbering; Indexing and summarizing

4.  September 28: Leveraging Technology to Manage Documents. Vendor selection and negotiation; Evaluating and updating technology

For more information click here.

   

The State of e-Discovery Teams in America

In an interview last week with e-Discovery 2.0, I was asked about the current state of e-discovery teams  in “most organizations.” My blog this week tries to answer this and a few other questions. I also try to tie the whole thing into the famous flick "Five Easy Pieces" starring Jack Nicholson (remember the famous no toast with breakfast scene?). As to this Team question, I have seen surveys indicating that most of the so called “serial litigant” companies, that is, the large corporations who because of their business tend to be sued a lot, such as the pharmaceuticals, large telephone companies and the like, have already set up internal e-discovery teams. For companies that are not serial litigants and thus are not forced to address e-discovery right away, the percent decreases dramatically. I would guess less than half of the Fortune 1,000. For law firms, my guess is that about ten percent of AmLaw 200 have set up e-discovery type departments or teams, or at least say they have.

These survey based statistics can be misleading. When I talk to members of large corporate e-discovery teams in an informal off-the-record manner at conferences and such, most confess that they are struggling. Typically, I think it is because they are asked to do too much with too little. Companies need to adequately fund an e-discovery team in order for the team to succeed. They also need to adequately train them, which again takes time and money. For more on this and a few of my favorite scenes and dialogue from Five Easy Pieces, check Five Easy Pieces – An Interview Without Toast.

Registration Open for Sedona Antitrust Conference

A bit off-topic, but a quick plug for our friends at The Sedona Conference. Registration is now open for its 11th Annual Conference on Antitrust Law & Litigation, to be held October 29-30, at the Sedona Hilton in Sedona, Az.

Faculty includes two FTC commissioners,a trial judge, a DOJ economist, in-house counsel, and renowned practitioners from both the plaintiff and defense bars from around the world.

This year’s antitrust conference will focus on a number of important and timely topics, including:
(1) The underpinnings and presumptions of antitrust enforcement.
(2) The new administration and antitrust enforcement.

EDD Update to experience "Where Angels Fear to Tread..."

With names like Craig Ball, Ralph Losey, Browning Marean, Dan Regard, and Shawnna Childress, it’s abundantly clear why EDD Update was in dire need of e-discovery talent for their blog. 

Seriously, what an honor it is to be named as a blog author for EDD Update.  The people who write for this blog provide such a great insight into e-discovery, social media, and other related matters.  I hope to post once or twice a week on things that I find unique to the industry.  Since becoming licensed in 2003, e-discovery has pretty much been my bread and butter via document reviews, project management, and consulting. 

Shocking as it may be though, I did not rise to prominence by becoming the “world’s greatest document reviewer.”  Most people know me from a blog I started a little over a year ago called Gabe’s Guide to the e-Discovery Universe.  Gabe’s Guide is exactly that-a guide.  I liken it to sort of an “uber news feed” of things people should be paying attention to in e-discovery, such as massive litigation matters, mergers and second requests, new technology and review software, and people in the industry.  In fact, I am certain I have cited to all of those people in the first sentence multiple times on my blog.  As well, like in this post, I will interject sarcastic commentary or write a pithy headline.

Free E-Discovery Tools that May Be Worth a Bundle

Lawyers miss being toe-to-toe with the evidence. We want to attack ESI with the same hands-on "can do" capabilities we brought to bankers boxes.  For that, everyone from solos to senior partners need simple, powerful desktop and/or web-enabled tools to search and review client data. 

The proletarian tools I imagine haven't surfaced.  The good stuff isn't cheap, and even much of the pricey stuff is relentlessly ho-hum or clunky as hell.  We need, "Quickbooks for ESI:" a tool set that's as intuitive to use, affordable and easy to master as Intuit's ubiquitous accounting application.

Two "free" tools lately hit my radar screen.  Download them, try them and see what you think.  One is a truly free utility that makes the contents of forensic computer images accessible to any Windows user.  The other is a fully-functional demo of an EDD search and review platform that isn't quite there but gets so tantalizingly close in some respects that I urge you to play with it and tell its Aussie developers how to get it right.

The Harry Potter Newspaper is Real

This past week, I had the fortunate opportunity to attend the “National Association of Government Archives & Records Administrators (“NAGARA”) Annual Conference in Seattle.  In attendance were a few well-known eDiscovery gurus including Jason Baron, Director of Litigation with the National Archives and Records Administration, and former Magistrate Judge Ronald Hedges.   Friday, we spent the day at the Microsoft Headquarters.  I was pleasantly surprised with a few of the new  innovative technologies they shared with us.  Many of these new technologies will catapult eDiscovery to a new level so I thought I would share them with you as they are just upon the horizon.

Searching for the Definitive “Search” Standard

Raise your hand if you have a definitive answer on what is an absolutely defensible process for searching through a couple hundred thousand documents and produce all the relevant and responsive documents, and not include too many “false positives”?   And don’t even get me started with those pesky privilege documents (we’ll leave that for another posting).

The Current Civil Discovery System

In the simple vernacular, our current system of civil discovery is whacked! 

When talking about our search in our current system, I like to use the analogy of a field of haystacks.  The number of haystacks we’re dealing with depends on the size of the case.  If we have a small case, we might be looking at only a handful of haystacks.  We have a massive case, we can be looking at haystacks spread out over several acres.  We start with the following facts: (1) most, but not necessarily all of these haystacks will have needles in them, though I can’t tell you how many needles will be in each haystack or how many there are in total; (2) there are also two types of needles: Privileged and Non-Privileged.  Now for the ground rules of the game: Your job is to go find every needle in every haystack, separate out and account for every “privileged” type needle by recording it in a log file, and then give that log file, along with all the non-privileged needles to the requesting party.  If you fail to deliver every needle, you may be severely penalized.  If your log file is incomplete or has too many errors, you may severely penalized.  If you give the other side too many hay straws along with the needles, you may also be severely penalized.  And by the way, there is a big ticking clock.  Begin!

What’s a poor farmer -- I mean lawyer -- to do?! 

ASBPE Gold x2 for EDD coverage!

Craig Ball is a magician -- he can turn the dryest, most esoteric nuance of e-discovery into a compelling story that rivals the latest Grisham offering. His vocabulary is unmatched; he always finds the perfect word to illuminate the most dense concept, yet never succumbs to jargon. Like other exquisite storytellers, he uses everyday analogies -- comparing EDD processes to television shows (CSI),  murder scenes with blood hounds, or World War II challenges faced by his father.

And he is an editor's dream: his copy comes in crisp and on time, and he always monitors the published version for mistakes (which speeds online corrections). Not only does Ball write for Law Technology News, he also is a steady, pithy contributor to EDD Update www.eddupdate.com. So it's no surprise that Ball has collected a basket full of awards for his fine work. Last night, he won another gold, for "best contributed column" in the Northeast regional competition of the American Society of Business Publications. Check out "SNAFU" and "Brain Drain."

We were also were thilled to learn that my article, "Can You Adapt?"  which analyzed the changing roles of EDD attorneys, paralegals, and litigation support staff, also won gold, in the "best technical article" category. Of course, our  amazing art director Shane DeLeers shares the glory in both wins -- he always finds the perfect illustration that makes our words sizzle!

That brings us to five awards for our work in 2008 -- the most we've ever won in a single awards season: A design award from GD USA; two ASBPE gold, and two honorable mentions from the Tabbies!  Thanks to our entire team!

A Dickensian Tale at the Root of e-Discovery Law

Judge Grimm's latest e-discovery case points out that a “Dickensian tale of avarice and trickery” involving a poor chimney sweep boy and a goldsmith in 1722 is the origin of the doctrine of spoliation. Goodman v. Praxair Services, Inc. _F.Supp.2d_, 2009 WL 1955805 (D.Md. July 7, 2009). Add some class to your next brief or presentation and cite to the original British case that started it all, Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (K.B.1722).

Judge Grimm's comment triggered my reading of some Charles Dickens this weekend. I had not done so since high school. What a pleasant surprise to see the relevance of this great master of English literature. It inspired me to try to fill in the back story of Armory v. Delamirie and do it in Dickensian style: The Chimney Sweep Boy and the Goldsmith: the Ancient Origins of the Doctrine of Spoliation. Call it my summer exercise in creative writing. It is not a work of literature, that's for sure, but hopefully you will find it an amusing way to learn more about e-discovery law. The article includes my favorite quotes from Charles Dickens, including his line about the limitation of "electronic communications." I also include the full-text of the four paragraph 1722 opinion and conclude with a critique (mostly praise) of Judge Grimm's new spoliation case, Goodman v. Praxair.

Structured Data Comes of Age...

Lately I have read several different articles about the discovery of structured data (as opposed to unstructured data). To the uninitiated, structured data sounds easier to handle than unstructured data. Normally this would be true. However, our familiarity with email and with user documents (often Microsoft Office documents), and the existing corpus of tools to handle them, have made us somewhat proficient as an industry at handling these items.  It is the structured data that is often the greater challenge. Why is this?

It may be because, unlike user files or emails, usually involve a single author and a single document (let's forget for a minute that emails are usually stored as fielded data behind the scenes). As such, they are created, and understood, as a complete object. What you see is what you get.

The meta-data involved in email and user files can be important, but they are usually ancillary to the heart of the document.

Gibson, Dunn offers EDD Mid-Year Report

Gibson, Dunn & Crutcher has posted its “2009 Mid-Year Update on E-Discovery Cases,” here .

The report notes that sanction cases have doubled during 2008, and that sanctions were awarded in more than a third of those cases. Many EDD opinions “provide greater clarity regarding the duty to preserve,” the firm observes, and courts are pressing for more “transparency and cooperation among counsel” during the EDD process.

The firm’s EDD task force includes partners Gareth Evans, above,  (L.A.) and Michael Flanagan (D.C.); and associates Farrah Pepper (N.Y.); and Bennett Borden (D.C.).

Download Mary Mack's A Process of Illumination

Fios is offering Mary Mack's A Process of Illumination: The Practical Guide to Electronic Discovery. You can download it here: http://tinyurl.com/eddu9722

The Low Cost of e-Discovery

I recently traveled to Chicago where I had a number of meetings with attorneys well versed in the arcane art of e-discovery. One item we discussed was the tendency of companies to believe that litigation readiness needs to be an expensive proposition in order to have tangible benefits. After discussing the issue with people who have seen e-discovery (discovery, really) in litigation, and in litigation readiness planning, we came to the conclusion that it doesn't have to be that way.

Granted, for companies with high document management goals, there are a great number of efficiencies and risk mitigating steps that they can implement that can impact the entire company in a very positive manner. Yet some of those implementations may take months, if not years, and may cost hundreds of thousands, if not millions, before they are completed.

Support Your Local ED Consultant

I just posted a comment on my blog the DocNative Paradigm that I'm getting more calls recently from regional firms who are handling cases for corporations, especially when it comes to e-discovery. Is this a national trend? Well last week Ron Friedmann noted anecdotal evidence of GC’s ” moving work to firms with lower billing rates” and now today in Law.com comes an article on a survey from BTI Consulting reporting that large corporations were reducing their outside firms from a 2007 level of two primary law firms, 10 secondary firms and 40 other firms they sometimes use to (by 2012) two primary firms, six secondary firms and 23 other firms. (The survey was based on telephone interviews made in December 2008 and again in May of this year of 550 companies with average revenue of $26 billion and average annual legal spending of $20 million).

iConect Adds SQL Connector

California’s IConect Development has added a Microsoft SQL Server Connector to help vendors, law firms, and corporations add document review and collaboration to their existing SQL servers and use iConect’s web interface. The connector helps users manipulate, import, export, and edit document data as well as use custom SQL programming. Firms can also use third-party applications like Crystal Reports to generate reports from stored data. Full release here.

Legal Science Announces New Caselawg Clients

Washington, D.C.’s Legal Science has announced the following new clients for its Caselawg e-discovery project management software:
• Archer & Greiner
• Day Pitney  Kilpatrick & Stockton
• New York based e-discovery consultant vDiscovery

The Aleynikov Affair: From Newark with Code

In D.C. last week, I spoke to a group of data security specialists and computer forensic experts about the type of case I see most frequently.  Unlike most in the audience, I work in civil litigation and see little of the child porn, identity theft and hacking cases that occupy them.  Much of my work concerns alleged employee data theft, so I addressed the prevelance and patterns of those cases, discussing incident response fundamentals, e.g., what to preserve and where and how to look to determine the whether, when, who and how much of proprietary data theft.

I was fortunate the day's big news story was of a lately-resigned senior programmer at Goldman Sachs arrested at Newark airport for allegedly spiriting away a copy of Goldman's trading program code.  My topic seemed ripped from the headlines.

FTC Uses Equivio

Maryland’s Equivio has announced that the U.S. Federal Trade Commission is using Equivio’s near-duplicate and e-mail thread technology to enhance its litigation efforts by expediting electronic discovery processes. The e-mail thread and near-duplication grouping helps attorneys skip redundant data to focus exclusively on the unique information in each document. The grouping also help ensure similar documents are treated consistently so litigators can meet tight deadlines. The FTC purchased Equivio’s technology via TechLaw Solutions, an e-discovery company that works with governmental agencies. through a GSA schedule. Full release here.

Adduci, Mastriani & Schaumberg Use CaseLogistix

Anacomp has announced that international trade and intellectual property litigation firm Adduci, Mastriani & Schaumberg (www.adduci.com) is using the hosted version of its CaseLogistix litigation support software.
The firm’s Washington, D.C. office is using CaseLogistix to help its legal teams collect, organize, review, and produce electronically stored information.

The firm is using the hosted CaseLogistix with Anacomp’s (www.anacomp.com) docHarbor review software. Full release here.

Ikon Launches Litovation Solutions

Ikon Office Solutions has launched Ikon Litovation Solutions, which integrates legal technology and services to provide litigation support and document management services. Services include e-discovery, data forensics and document imaging. Full release here.

Equivio>Relevance Launched

Maryland-based Equivio’s (www.equivio.com) says its new Equivio>Relevance system uses statistical and self-learning techniques to calculate graduated relevance scores for each document in the data collection after initial input from  a lead attorney, says CEO Amir Milo.

A statistical model is used to calculate the precision  of the software and provide measurable e-discovery results and ensure transparency. By organizing the data sets by relevance, attorneys can immediately focus on the most relevant documents. Full release here.

VeData Map 2.0

E-discovery software provider Visual Evidence/E-Discovery has released VeData Map 2.0, a service that creates a network data map of how a company creates, accumulates, and circulates electronically stored information.

The company says the data map provides companies with a visual diagram of an organization’s systems, applications, and processes that their business divisions commonly use. Full release here.

Brecher/Childress: eDiscovery Plain & Simple

Allison Brecher, senior litigation counsel and director of information management and strategy at Marsh McLennan Companies and Shawnna Childress, executive director and co-founder of Women in eDiscovery have released their new book, eDiscovery Plain & Simple. The book explains law of both electronic discovery and information technology using graphics and checklists, explaining the information technology attorneys need to do their jobs. Check it out here. 

Spektor Forensic Discovery Tool

Evidence Talks has released the Spektor Forensic Discovery tool to help users collect and preserve information from computers while ensuring the legal and forensic acceptability of the data. The portable Spektor Control Pod can retrieve and preserve data from hard drives, memory sticks, digital cameras, and other media such as CDs or DVDs.  The pod forensically wipes, verifies, and configures Spektor Collector devices. Full release here.

Nuix Upgrades to 2.18

Nuix has upgraded its e-discovery software to Nuix 2.18. “The biggest architectural change to Nuix’s eDiscovery software in 2.18 is our parallel export processing,” says Stephen Stewart, Nuix’s chief technology officer. “Nuix software was designed to use all of a server’s processing power when processing data, and was very fast. Prior to 2.18, it could only leverage one processor for exporting.” Full release here.

Catalyst Upgrades to 8.5

Catalyst Repository Systems has announced Catalyst 8.5. The upgrade adds 35 features, including support for dual monitor review to help users view documents and see more review fields. The upgrade also helps users create their own forms and macros. Review team folder trees help administrators supervise their review teams. Full release here.

CaseCentral Launches Early Case Assessment Tool

CaseCentral has announced its early case assessment tool, which integrates with its litigation review and production software. Full release here.

Mimosa Systems Upgrades to 4.0

Mimosa Systems has upgraded its Mimosa NearPoint to 4.0. NearPoint captures e-mail, files, SharePoint content, and instant messages and provides legal search workflow and case management. Full release here.

Gibson Dunn & Crutcher e-Discovery Statistics Reveal New Trends

In a July 2009 publication by Gibson Dunn & Crutcher (Gibson), the results of a review of more than sixty federal and state court opinions were released. And the results are very telling. Parties are bringing more e-discovery issues to the court, and the courts are awarding more sanctions. Also, it's not just civil parties, but also government entities that the courts are addressing with these obligations.

In the analysisof 61 cases, 32 (52%) of the opinions involved the consideration of sanctions, which were then awarded in 22 (69%) of the cases that considered sanctions. Many of the opinions address, or detail, duties to preserve relevant data and consequences of not doing so.

Not surprisingly, the courts continue to urge transparency and cooperation among counsel.

Preservation of Disaster Recovery Backup Tapes?

From John Jablonski, partner, Goldberg Segalla*:

Do you need to preserve disaster recovery backup tapes that contain relevant ESI? Guidance from commentators and case law is mixed. The Federal Rules of Civil Procedure are silent on whether disaster recovery backup tapes need to be preserved when implementing a litigation hold. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on backup tapes that a party deems not reasonably accessible. See FRCP 26(b)(2)(B). Assuming backup tapes are preserved and identified as not reasonably accessible, will the tapes ever be subject to discovery? In short, yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).

In Kilpatrick the court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes is not reasonably accessible. While the case does not address the question of preservation directly, it stands as a warning. Defendant repeatedly represented that active ESI met its discovery burden. Defendant also advised that additional relevant ESI might be contained on backup tapes, designated as not reasonably accessible because they were maintained for disaster recovery purposes only. Plaintiff was not buying it and moved to compel production of the backup tapes. The court agreed that the ESI produced so far seemed to have some holes and compelled limited production from the backup tapes.

From John Jablonski, partner, Goldberg Segalla*:

Do you need to preserve disaster recovery backup tapes that contain relevant ESI? Guidance from commentators and case law is mixed. The Federal Rules of Civil Procedure are silent on whether disaster recovery backup tapes need to be preserved when implementing a litigation hold. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on backup tapes that a party deems not reasonably accessible. See FRCP 26(b)(2)(B). Assuming backup tapes are preserved and identified as not reasonably accessible, will the tapes ever be subject to discovery? In short, yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).

In Kilpatrick the court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes is not reasonably accessible. While the case does not address the question of preservation directly, it stands as a warning. Defendant repeatedly represented that active ESI met its discovery burden. Defendant also advised that additional relevant ESI might be contained on backup tapes, designated as not reasonably accessible because they were maintained for disaster recovery purposes only. Plaintiff was not buying it and moved to compel production of the backup tapes. The court agreed that the ESI produced so far seemed to have some holes and compelled limited production from the backup tapes.

Fios Expands Information Governance Services

Fios has expanded its information governance services to help clients reduce costs of managing electronically stored information in response to litigation and governmental investigation. The information governance consulting services include assessment and planning for records management and retention policies. Full release here.

Kroll Ontrack Adds Near-Duplicate Detection, E-mail Threading

Kroll Ontrack has upgraded its Ontrack Engenium Advanced Search technology to include e-mail threading and near duplicate detection, which helps companies improve the consistency of their document search software by adding content grouping abilities. Full release here.

Daegis Adds Document Review Service

E-discovery provider Daegis has added document review to its offerings. The company says its document review services extend the company’s reach in the litigation support lifecycle. The company provides litigation support from information management and early case assessment through document review and production. Full release here.

"Pig in a Poke" Sanctions Defense Finally Works

My blog this week examines an interesting case in Delaware state court where a variety of sanctions defenses were tried, including what I like to call the "pig in a poke" argument. The old “Sick Computer,” “Pig in a Poke,” and “Somnambulist” defenses were tried again recently with no success. They all failed, including the pokey argument. Tonight I just discovered a new case in Pennsylvania where the pig in a poke argument actually worked. Phillips v. Potter, 2009 WL 1362049, *5 (W.D.Pa. May 14, 2009). 

One of the good things about blogs and electronic writing is the ability to change what you wrote at any time. So I just added this case to the blog I posted Sunday night where I said that the argument does sometimes work, but did not give a cite. Now, viola! There is a citation. It looks like I knew about this case all along and no one will be the wiser, except of course for you, and I'm sure you won't tell.

E to the F Power

Along with Ralph Losey, Tom O'Connor and other commentators, I've painted many a pixel importuning lawyers to learn the ways of electronic discovery.  Between us, we've variously employed the "M" word (malpractice), the "E" word (ethical duty), the "C" word (competitive advantage) and the "S" word (sanctions).  I don't know that any of us have gotten much traction.

But now a court has used the "F" word...the one that really grabs lawyers by the short hairs: fees

Prescient Decision - No Duty to Agree to Quick Peek

A recent well-reasoned decision from Wisconsin provides an important cautionary speed bump on the rush to force litigants into involuntary "quick peeks." The court in Kay Beer Distributing v. Engergy Brands, 2009 WL 1649592 (E.D. Wis. June 10, 2009) refused to compel production of the results of preliminary search of e-mail containing culled (for overlapping data) material from 13 gigabytes of data. The court recognized that the costs for a further review were excessive ("cost of conducting such a review in attorney time alone is estimated at almost $120,000").

The party seeking the discovery wanted the data so "it may conduct its own search of them for the relevant information to which it claims its [was] entitled"  but had refused to work with counsel "in formulating search terms to locate emails that might be relevant."   The court rejected the argument that the producing party had a duty to cough up this material without further ado because privileged material could always be clawed back.  The court held that "the fact that Energy Brands did not want to add to the ESI it would have to review is not evidence of recalcitrance," and there is no obligation to utilize R. 26(b)(5)(B), since "a clawback arrangement does not spare" the need to review information that it may wish to withhold on because not discoverable or contains "the kind of proprietary or confidential information" a party "simply prefer[s] not to disclose."

Staying Current

There is such a flood of electronic discovery information that it can be a considerable challenge to stay current. The electronic discovery blogosphere is blessed to have sites like EDD Update and such prolific and trenchant contributors as Craig Ball and Ralph Losey. Their posts are mandatory reading.

In addition, I use www.alltop.com to stay current.   Alltop has a section devoted solely to electronic discovery.  There is a wealth of current information for rapid perusal. At last count, it gives the headlines for some 22 blogs and websites covering most of the e-discovery field.  It is also possible to create your own page which provides updates for those topics of interest to yourself.  I am sure you will find it a useful site to bookmark, but only after you visit EDD Update first!

How Mad Scientists Handle e-Discovery

The scientist in a new case was mad as hell when his new employer fired him after he and the employer were sued by his old empoyer. So what did he do? He deleted all of his emails and other ESI of course!  Beard Research, Inc. v. Kates, 2009 WL 1515625 (Del.Ch. May 29, 2009). That's only the beginning of the wacky escapades of this defendant to litigation. He engaged in an escalating series of tricks to make sure his ESI would never be recovered, climaxing in the "old-switcherro" maneuver where he put a new hard drive in his lap top. Apparently his lawyers played into his hand by sleep walking though the beginning of the case and not advising him to preserve his computer files until two years after the suit was filed and emails were requested. The story does not end well for the scientist when he encounters good opposing counsel and a smart judge who sees through all of the smoke screens and clever arguments. Read all about it in my latest blog entitled:  The old “Sick Computer,” “Pig in a Poke,” and “Somnambulist” defenses were tried again recently with no success." 

New Technology Awareness - Google Operating System

This week the most visited website in the world, Google, announced their plans to market the new Google operating system called Google Chrome OS.  Most Personal Computers (PCs) currently run on operating systems from either Microsoft or Apple.  Unlike Microsoft and Apple, the Google Operating System is an open-source project so many outside developers are likely to develop on it.  Another benefit is that Google is offering this new operating system for free. We are yet to see how the marketplace will accept the new Google Chrome OS, but one thing is sure that this will shake up the PC market.  We may soon be seeing electronic discovery requests that involve the Google Chrome OS so asking the question of a custodian "Is it a PC or Mac?" may not be enough.  Our new line of questioning may need to be "Is it a PC with the Microsoft OS, Google Chrome OS or a Mac?". 

Looking for EDD Update Authors!

As part of our commitment to keeping this blog fresh, and to provide a venue for new voices (and always for diversity), we're looking for a few more authors to join EDD Update's discussion.

If you are interested, or want to nominate someone who you think would be terrific, e-mail me at monica.bay@incisivemedia.com. Eligible folks include legal professionals (lawyers, IT staff, paralegals, etc.) in law firms, law departments, or independent consultants.

Sorry, vendors are not eligible. However, vendors are thoroughly encouraged to dive vigorously into the discussions via comments and are welcome to submit "guest" posts to us.

Mon

SANS Summit Summary

I just returned from two days at the SANS What Works Summit in Washington, D.C.  The capital weather was gloriously, unseasonably cool, but the Summit was cooler still (and not just because the ballroom temperature hovered near absolute zero).  The talented presenters didn't disappoint.  The leading lights in forensics and information security shared their tips, tools and insights; but, excepting a splendid lightspeed discussion of registry analysis by the oracular Harlan Carvey, I'm struck by how far the discussions strayed from disk forensics and other matters of pressing, practical concern in e-discovery and civil litigation.   Certainly mobile devices are increasingly important and memory analysis is exciting and new, but it made me wonder if we aren't moving beyond "dead disks" too soon.  Has everyone mastered disk forensics?

Iris Data Opens Perth, Australia Office

Iris Data has expanded, opening new offices in Perth, Australia. The e-discovery company’s services include tape restoration, computer forensics, e-discovery, and online review with their Unify review platform. The production center is located in Joondalup, a suburb of Perth. Full release here.