EDD Update

Anacomp Executive Purge?

We are tracking down strong rumors that there has been a major purge of executives at Anacomp by its board of directors. Once we get confirmations and details we'll post more 411.

411: We tracked the rumor down. In fact, Howard Dratler, Anacomp CEO, got right back to us to set the record straight. There were never any plans to unseat him as CEO. But Dratler did hire Scott Winkler to be the general manager of Anacomp's CLX business. According to Dratler, "Winkler's initial focus will be on better alignment of our Development, Product Management and Marketing organizations with the goal  of building on/accelerating the strong progress we have made over the past several years and taking our eDiscovery and Litigation Support business to the next level."

EDD on the Fringes: CA - SB 748

I admit, this post is really skirting the edges of e-discovery, but if you see the issues I see, perhaps you'll agree it's relevant to us.  California has passed a bill into law, SB 748, which makes it a misdemeanor to post information about witnesses or their family members online with the intent to intimidate.

Where it intercepts our world is that there's an opt-out requirement that forces search providers to take down information within two days of receiving a request from a witness or face a $5,000 fine.

Never mind the logistics of policing such a requirement, I can see it now; subpoenas flying all over the place from the District Attorney's office compelling search providers to provide the identities of those who posted the information online and the search providers refusing to comply with the subpoenas.

Could this be construed as compelling a private entity to act as an arm of the government?

For more, click here.

Jolly Roger Justice

By Craig Ball

It's fitting that my friend (and author/blogger) Ralph Losey, hails from Orlando — the House of the Mouse — because reading his posts on EDD Update (www.eddupdate.com) is like a ride on one of the really good Disney attractions once called "E-ticket" rides.

Losey's animated prose takes wonderful twists and turns,punctuated by delightfully silly visuals — and all steeped in solid American values. I always glean something good from Ralph's scholarship, even if only a different, well-argued point of view.

Losey and I have a playful wager respecting the viability of Judge Nuffer's opinion in Phillip M. Adams & Associates, L.L.C., v. Dell, Inc., et al., 2009 WL 910801 (D. Utah March 30, 2009). I think the judge's opinion will stand (though pushing the outer bounds of preservation), but Ralph anticipates an appellate slap down.

Losey recently posted about KCH Services, Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D.Ky. July 22, 2009), and kindly noted that where he disagreed with me on similar issues in Adams, we were of one mind on Vanaire. Hearing that I'd stumbled onto an acorn of rectitude moved me to actually read the opinion. And, indeed, Losey is right to side with the judge. (In fact, one can make a pretty good living siding with judges.)

CONTINUE READING HERE

LTN Awards: Voting Open!

Vote! Yes, it’s that time again — for you to tell us which vendors should receive our 2009 LTN Vendor Awards! The online ballot is survey style, and will take just a few minutes to complete! Deadline: November 15. (You will need your account number, from your mailing label — e-mail Kerry Kyle kkyle@alm.com if you can’t find it.) Click here to vote.

We are also accepting nominations for our juried LTN Awards, which honor law firms, law departments, and consultants. Categories include: IT Director of the Year, IT Champion of the Year, Consultant of the Year, Lifetime Achievement Award, and Most Innovative Use of Technology in a Law Firm, a Law Department, a Trial, and Pro Bono Project.

This year, for the first time, we will be present the LTN Lifetime Achievement Award — I will be making the selection of that individual. Candidates must be 55+, and I welcome nominees. There are no restrictions: it can be a lawyer, a paralegal, a vendor, a CIO — anyone in our wonderful legal technology community is eligible.

As is our tradition, the remainder of the juried awards will be selected by three distinguished members of our LTN Editorial Advisory Board: Andrew Adkins III, of the University of Florida’s Levin College of Law; Fredric Lederer, of the William & Mary School of Law; and David Whelan, of the Law Society of Upper Canada.

Deadline: November 13. Click here for nomination forms. 

StoredIQ Intelligent Information Management Platform 5.0

StoredIQ Intelligent Information Management Platform 5. is the latest version of Texas-based StoredIQ’s (www.storediq.com) content management software. It helps organizations manage EDD, records, information governance, and storage — and bridges the needs of  IT and legal departments. New features include data access control, a scalable storage architecture, and automated event notification. Full release here.

CAAT 3.5 Adds De-Duplicate Identification

Virginia’s Content Analyst reports that CAAT 3.5 search and text analytics software adds new algorithms to help users form clusters of one million documents in minutes. A categorization-from-search feature offers rapid categorization from an existing search index. The upgrade also identifies near-duplicate documents. Full release here.

Socha and Gelbmann Relaunch EDRM Website

Minnesota-based George Socha and Tom Gelbmann report that the Electronic Discovery Reference Model website has been upgraded and advancements made on the eight EDRM projects. Among updates: a Production Pack 'n Go Microsoft PowerPoint presentation that outlines stages of production; a refinements to an XML schema; new metrics tools; and tips to help employers recruit and retain e-discovery personnel. Socha is a member of the LTN Editorial Advisory Board. Full release here.

Kroll: Corporations Need to ‘Walk the Talk’ on ESI Management

Kroll Ontrack's Third Annual ESI Trends Report found that a majority of 461 U.S. and U.K. corporations with 500-1,000 employees that responded to an online survey (conducted by Research Plus) had a document retention policy in place but less than a majority of them (46 percent of U.S. and 41 percent of U.K.) had an ESI discovery readiness strategy. To Kroll, those survey respondents "talk the talk," but they also need to "walk the walk." A retention policy without an e-discovery strategy leads to a false sense of security that a document retention policy is adequate to protect an organization when litigation and e-discovery ensue. And that assumption is not a leap of faith that falls short.

Using a document management system and retention policy to "go left" of the Electronic Discovery Reference Model calls for managing content. Part and parcel of managing content is managing the inherent risk in content that may trigger a lawsuit or an investigation. And you manage the risk by developing a strategy for it, i.e., for litigation, which includes a strategy for e-discovery. Another way to look at this is from box seats on the 50-yard line. Send a receiver wide left, throw him or her the ball, and simply say: "good luck." Without further support, the receiver is not going to get too far.

The ESI Trends Report had a few other findings I found of interest. For example, a large number of companies increased their spending for ESI, but another large percentage said hey did not have a mechanism to suspend their document retention policy. "What are they buying?" Regina Jytyla, a staff attorney at Kroll, said the figure represents general spending for in-house legal departments and can include technology, people and outsourcing. To me, the corporations that were surveyed, nearly one-half of which had to produce ESI for litigation, need a better mix of technology and people – especially considering the fact that most of the content out there is ESI.

Another topic I found interesting was that role confusion, vernacular barriers and budget ownership still leads to contention between IT and legal when litigation strikes and that differences in legal and technical expertise challenge the collaboration between IT and legal that is necessary to comply with e-discovery requests. This sounds like the legal department needs to take ownership and recognize that they have a project to deal with that has a client, multiple stake holders and a long tail. After all, litigation is a legal process, right? I don't see the IT department knocking on legal's door when IT wants to upgrade servers, right?

Informative Graphics Goes ‘SharePoint’

Informative Graphics Corporation launched its latest versions of Brava Enterprise and Redact-It Enterprise with SharePoint 2007 integration. SharePoint users can now use Brava's viewing and annotation features, including term-hit highlighting, which allows you to pick up search terms used in SharePoint and apply them to the document in view. In the redaction department, Redact-It aims to monitor specified SharePoint document libraries or network folders and automatically apply configured redaction criteria.

Fios offers subscription model for EDD

For those of you in litigation, more than you are out of litigation, Fios now offers a flat, monthly subscription fee for Fios On Request, software as a service for e-discovery processing and review. In effect, On Request subscribers get unlimited access to process, analyze, cull and review potentially relevant evidence associated with litigation or investigations based on a per-seat rather than a per-gigabyte cost.

The per-seat cost is based on the number of seats and storage volumes required. For example, the first level is 5 seats up to 250 gigabytes of storage; next level is 10 seats and 500 gigabytes.

From the early-case-assessment department, this may allow you to make fight or flight (settle) decisions for a predictable cost.

Seventh Circuit's Pilot E-Discovery Program

The Seventh Circuit recently announced it was commencing the first phase of an e-discovery pilot program that will run from Oct. 1, 2009 to May 1, 2010. See http://tiny.cc/7thCircuitPilot

The pilot involves the promulgation of a set of principles intended to incentivize early and informal information exchanges on issues common to ESI. The principles are included in a proposed standing order relating to the discovery of ESI which several district court judges, magistrates and bankruptcy judges in the Seventh Circuit have agreed to use in selected cases during the initial phase.

The principles highlight the 2006 amendments to the Federal Rules of Civil Procedure, but they go beyond the Federal Rules of Civil Procedure in a several helpful particulars, e.g.

• Zealous Representation. Principle 1.02 specifically addresses the zealous representation excuse for obstructionist behavior – the principles state that “An attorney’s zealous representation of a client is NOT compromised by conducting discovery in a cooperative manner.” (Emphasis added.)

Cloud BURST!

There's been a lot of chatter about cloud computing, and I've certainly touched on the risks.  Now, we have a concrete example of what can go horribly wrong.  T-Mobile users of the Sidekick smartphone may have lost all of their personal data when master copies were affected by a server outage.

Microsoft, you got some explaining to do!

Lextranet Transcript Repository

The Merrill Lextranet Transcript Repository helps users search video depositions and synch transcripts with the videos. Users can search video depositions for keywords and find all instances of their use across a case. The display window synchronizes the location of keywords on both the transcript and the video. Annotations can also be searched and synchronized. From Minnesota-based Merrill Corp. Full release here.

Precision Discovery Launches The Case Dashboard

New York-based Precision Discovery says its web-based The Case Dashboard helps users manage e-discovery projects. Users can access processing and document review progress reports, document coding statistics, and budgeting information at each stage of the Socha-Gelbmann Electronic Discovery Reference Model (www.edrm.org). Full release here.

Ipro eReview 2.1 Helps Users Select Custodians

Ipro eReview 2.1 document review software helps users select custodians and search for only files containing the specified custodians. Users can tag result sets, and if a conflict exists in a tag group, a prompt will appear for the user to resolve conflicts. From Arizona's Ipro Tech. Full release here.

Discovery Partner Now Processes Bloomberg E-mail

Daticon EED reports that its Discovery Partner e-discovery software can now natively process Bloomberg e-mail, to help financial services companies involved in litigation.
It is compatible with Bloomberg Email 1.6 or later, including Instant Bloomberg, Bmail, Internet Mail, and Bloomberg on iPhones, BlackBerrys, and Windows Mobile devices. Full release here.

OrcaTec Debuts SocialStor

California-based OrcaTec has debuted  OrcaTec SocialStor, a new service that helps organizations collect, manage, and store messages on social networking services including Twitter, LinkedIn, and Facebook.

Full release here.

Altep Upgrades Inspicio

Litigation support software company Altep has upgraded its Inspicio software.

New features include Box Views, which provide additional sorting and filtering options for document subsets with native files. Users with the appropriate permissions can view document lists by file type, native path (where the file was located during collection), creation date, or modification date. Full release here.

Global EDD & eZoom

Ohio’s Global EDD has added eZoom data analytics to its Intelligent EDD e-discovery services. Full release here.

Kroll Ontrack Collaborates with NYLPI

Minnesota's Kroll Ontrack has partnered with New York Lawyers for the Public Interest (www.nylpi.org), a non-profit civil rights law firm. Kroll's consultants are providing 80 hours of pro bono expertise to help the firm manage its ESI litigation caseload.

The consultants are reviewing and analyzing NYLPI’s current data management practices to help establish proper procedures when processing ESI. Full release.

Put a microscope in your computer

Seems like a lot of things are coming to a computer near you: movies, TV, microscopes. Yes, microscopes for the forensic examiner. Dazor's speckFINDER HD digital computer microscope gives forensic scientists the ability to see precise details of evidence in high definition magnification in a computer format.

I can't remember how many times I needed some detail on a motherboard only to borrow my dentist's funny-looking glasses. Now I have more options with Dazor.

Dazor brings together optics, digital cameras, LED lighting, glass displays, personal computing electronics and mechanics to produce the speckFINDER HD, a digital computing microscope with an ergonomic design using flat panel digital display that allows multiple people to view magnified images simultaneously and effortlessly.

The Right Fit

With so many vendors using the same 12 words to describe their electronic data discovery services, no wonder general counsel and outside firms often feel overwhelmed when trying to evaluate companies.

 But the key to vetting, hiring and managing vendors is asking the right questions, say John Reilly and Stephen Schutter in "The Right Fit," part of Law Technology News' October issue, EDD Showcase: GC Perspectives.

Reilly, an associate GC for Lorillard Tobacco Co., and Schutter, of counsel to Shook, Hardy & Bacon, offer concrete suggestions for drafting vendor contracts, reminding readers to address a wide range of topics, including quality control, warranties and remedial provisions, training and support, pricing, disaster recovery and reports.

New Video of Two of the Top Judges in the Country Speaking about e-Discovery

My blog this week consists of an exclusive 15 minute, must-see video by two judges, Ronald J. Hedges and Craig B. Shaffer. Craig Shaffer is a U.S. Magistrate Judge in Colorado. Judge Shaffer is well known to everyone in the e-discovery world as the author of the Land O’Lakes opinion. Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC, 2007 WL 684001 (D.Colo. 2007).  Ron Hedges shown above is a former U.S. Magistrate Judge in New Jersey (1986-2007). Ron is well known to everyone in the industry as one of the leading lights from the judiciary. They took time this month to talk about what they think is important in e-discovery, including: advice on case management; staging; proactivity; ethics; proportionality; the proper use of vendors; the need to educate judges about your case; and, the special opportunities in e-discovery for young lawyers today.

New FTC Guidelines re: Product Reviews

Craig Ball forwards these new FTC guidelines, about product endorsements,  with a hat tip to Sharon Nelson: Download 091005endorsementguidesfnnotice

The Need for E-Discovery Standards: A Call From the Trenches

Most discussion about standards in electronic discovery focuses on the big-picture issues of scope, cost and cost shifting.

These are important questions eloquently argued in the courts. However, they overlook the mundane, pick-and-shovel e-discovery concerns that affect every case. I’m talking about the elementary technical issues of preservation, extraction, processing, review and production.

I’m talking about extracting data from electronic storage media, processing the data and its metadata into a document review software application platform, supporting the review and producing the data as discovery or evidence.

New Version of the EDRM Website

We have given the EDRM website, http://edrm.net, a new look and new capabilities.

Please take a look. Let us know if there is anything you would like us to add, change, or get rid of. After all, this is and always will be a work in progress.

Thanks,

George

IM-PECK-ABLE

Magistrate Judge Andrew Peck, who serves on the U.S. District Court for the Southern District of New York, has been quite active in drafting e-discovery rulings, such as March's William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co. and Anti-Monopoly, Inc. v. Hasbro, Inc. -- both establishing important guidance for the creation keywords for searching electronically stored information. (See here, here, and here.)

But did you know that Peck also has written a reference book on all things Sherlock Holmes? Or that he drives to work (unusual for a Manhattanite). And you probably won't be surprised to see that he and I share the same favorite website. After all, he lives in New York City!

Check it out here in the October issue of Law Technology News.