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The full 2009 Socha-Gelbmann Electronic Discovery Survey Report is now available for purchase. For detail, please contact George Socha (george@sochaconsulting.com, 651.690.1739) or Tom Gelbmann (tom@gelbmann.biz, 651.483.0022). We are in the final stages of preparing the participant report and will be distributing that to participants in the near future.
Mistakes are, after all, the foundations of truth, and if a man does not know what a thing is, it is at least an increase in knowledge if he knows what it is not. - Carl Jung
Three years later - did we really need to amend the federal rules for ediscovery? On December 1st, 2006, changes relating to “electronically stored information” (ESI) in the Federal Rules of Civil Procedure took effect. The changes to Rules 16, 26, 33, 34, 37, and 45 provide mandates to the preservation, discoverability, production, accessibility, and costs associated with ESI which includes e-mail, word processing documents, spreadsheets, voice mail, databases and more.
Over the last 18 years I have been writing on how to apply technology applications to the practice of law and eight years ago I began my initial research of court cases and procedural rules focusing on discovery of electronic information. During that time the amended ediscovery federal rules were being proposed and hearings held across the country to determine whether the procedural rules should be changed to adapt to the digital world. I remember sitting through a proposed amendment discussion at Fordham University thinking “what technology has wrought – technology will solve.” In fact, during all my presentations over the last several years, this has been one of my closing comments. (Read more . . . )
I turn the mic over to Babs Deacon, director of consulting at Integreon, for a guest post:
Whether
e-discovery is in its infancy or toddlerhood, it will never get the
respect it deserves until it has its own Latin phraseology. New Year’s 2010 seems like a good time
to initiate a set of ediscovery terms that Cicero might have used had he been
litigating today.
Think just how forceful you’ll sound at your next 26(f) when requesting opposing counsel’s production in forma ingenitus - in native form, or backing up your request by saying, “Nativus Ipse loquitor.” The native file speaks for itself, to the judge.
Conversely, a strong, classical stance may just what you need to avoid sharing any native meta data, with the assertion, “Proferabo solum saxibus.” I shall produce only in tiff.
Naturally, a motion for sanctions requires the strongest language. Referring to the responding party’s mangled data as, spoliatus in extremis, will really make an impression and tossing out the phrase, Misura Quinta – Hash5 sounds cutting edge and traditional.
Don’t forget that after hours, a little satire will impress
colleagues, drop “Quis iudicat Iudicem Grimm ipse?” at the next Sedona cocktail party.
Attorney/special master Craig Ball et moi will be the featured speakers at the January 21 meeting of the New York City chapter of Women in E-Discovery. It will be held at 12:00 noon, at Credit Suisse, 11 Madison Avenue (Floor 2B-Club Room).
The topic: "2010 EDD Oddyssey" -- a review of 2009 trends and a predictions for 2010.
Hope you can make it!
RSVP: newyorkcity@womeninediscovery.com.
I will also be speaking for the New Jersey WiE chapter meeting on February 16, at 5 p.m. in Latham & Watkins' Newark office. Watch this space for more 411!
Several of you have pinged me about upcoming webinars:
• Fios: Debbie Caldwell advises that A Roadmap to e-Discovery Cost Control will air Tuesday January 19, 2010 01:00 PM ET (60 minutes).
Explores the critical paths to cost control in each phase of the Electronic Discovery Reference Model, with emphasis on processing, review and production. Speakers: Chris Gallagher, senior vvice president, managing director, Ajilon Legal, and Chris Wilen, Fios’ solution design architect. Target audience: Corporate lawyers and outside counsel.
411 here.
• The Organization of Legal Professionals: Cherie Estrin reports on these programs:
Offshore Legal Outsourcing, the Ethical Implications: Covers ethical, liability, and security risks associated with the outsourcing of both non-core and higher-value legal work overseas. 1 hour of MCLE Ethics credit. January 14, 2010, 1:00 pm Eastern.
Adobe Acrobat for Legal Professionals. Review of essential information specifically for use in the legal field. January 13, 2010, 1:00 PM EST.
Dale Legaspi checks in to advice us that Guidance Software’s EnCase Portable has been named the winner of the forensics category of the Cygnus Law Enforcement Group’s 2009 Innovation Awards.
Press release here
Is it really possible that 2009 is just about over? Doesn't it feel like we were just welcoming this year? We've certainly been on an interesting journey over the last 12 months. (As in the Chinese curse, "May you lead an interesting life.")
But we move forward, hopefully with a dash of courage and gusto. So on behalf of our entire Law Technology News and Law.com team, and our mothership ALM, let me extend our warmest wishes to you for the holiday season.
May the remaining days of 2009 nurture spirits, refresh enthusiasm, enhance vision, inspire experiments, mute distress, challenge boundaries, generate relationships, temper irritations, magnify flavors, provide noise and quiet, and accelerate joy.
Matter of Klein v. Persaud, 2009 NY Slip Op 52582U, 2 (N.Y. Sup. Ct. Dec. 21, 2009).
In this arbitration case, Chase Bank, a third party, sought expenses of $9,112.00 "for production expenses ($4,550.00 for time spent locating and retrieving documents and $4,562.00 for printing). The Court reduced the amount to "$1,192.10 for time spent locating and retrieving documents and $58.17 for printing 1,939 pages of documents."
The Court noted that. "[t]wo CPLR Rules deal with production costs for a non-party. CPLR Rule 3111 states that a deposition subpoena may 'require the production of books, papers, and other things in the possession, custody or control of the person to be examined to be marked as exhibits, and used on the examination. The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.' CPLR Rule 3122 (d) allows a non-party witness to provide, unless specifically directed to provide original documents, 'complete and accurate copies of the items to be produced.' Further, '[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.' Production costs can include providing electronic discovery, such as e-mail."
The Court also noted that:
Continue reading "Chase Bank Criticized Re: Alleged Expenses for 3P Subpoena " »
It's Christmas, and from frigid Berlin, Germany, I wish all EDDUpdate readers and contributors a happy and safe holiday. I hope you are warmly ensconced with families, friends and loved ones, enjoying your favorite foods, games, movies, stories, drinks...and e-discovery websites.
Though post traffic has been sparse of late, and a bit of filler might be welcome, I don't want to set the bad precedent of personal greetings as posts; so, what follows is a technology tip I think you'll find useful, and that I hope serves as a not-too-transparent excuse to wish all a Merry Christmas, (belated) Happy Chanukah, Keen Kwanzaa, Festive Festivus or whatever you're using as a reason to celebrate and eat and drink to excess.
So now for the technology tip: food-themed, in recognition of the holiday.
Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)
When responding to an email communication from his attorney, defendant mistakenly sent his message to a third party. As a result, the email was eventually provided to opposing counsel in the litigation. Plaintiff’s counsel refused to return the email upon defense counsel’s request and filed a motion for a protective order to which the email was attached. Defendants then filed a motion to exclude plaintiff’s use of the email. Defendant David Muhs explained that the mistaken transmission occurred when the autofill feature on his email program supplied the wrong address in place of that of the intended recipient. Conducting its analysis pursuant to Fed. R. Evid. 502, the court determined that privilege had not been waived. Continue reading here.
The U.S. Supreme Court has agreed to hear an appeal concerning privacy rights to electronic communications. The case comes out of the Ninth Circuit: Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). It involves an employer reading an employee's text messages, sexy ones at that, where the Ninth Circuit ruled for the employee. The Supreme Court could use this appeal as an opportunity to write an opinion that not only broadly impacts privacy rights of all U.S. citizens, but also impacts employee rights, public record disclosure duties, and the scope of electronic discovery. I have written about this case and the privacy rights issues many times on my blog, and am delighted to see the Supreme Court is willing to take a look at this area. My "emergency blog" post this week, right after the Supreme Court's announcement that it would accept certiorari, talks about the Quon case, the Court's acceptance, and how it might rule. (By the way, I finally have an easier to remember domain name for my blog: e-DiscoveryTeam.com.)
Continue reading "Supreme Ct Accepts E-Communications Privacy Appeal" »
Sometimes, I wonder how a whole bunch of people with advanced degrees can be so darn obtuse, with the result that a lot of time and money is wasted. I blogged on State v. Dingman, 149 Wash.App. 648, 202 P.3d 388 (Washington Court of Appeals 2009) in March in what I regarded as one of my better posts of the year. I'd forgotten all about it until I saw a blog post about the same case featured on today's Law Technology News website.
The featured post was from law professor Susan Brenner's CYB3RCRIM3 blog (that's leet-speak for cybercrime, of course). Professor Brenner offers no comment about the Dingman decision except to say, "I could have entitled this post 'battling computer forensic software programs.'” With respect to the professor, whose blog is a useful and interesting read, professionals in the computer forensics arena are as likely to refer to Ghost as a "computer forensic software program" as the American Medical Association is to call the game Operation a "surgical training simulator."
Read Professor Brenner's post, but please read mine, too. If you don't, it's hard to fully appreciate just how deeply embedded were heads in hinds in the Dingman matter. Shame redux.
The National Law Journal reports that a federal judge has thrown out all criminal and civil charges related to the stock options backdating scandal at Broadcom Corp. amid accusations of prosecutorial misconduct.
Here's the first version of the story:
The good folks over the The Posse List have recently launched their latest and greatest contribution to our industry: The eDiscovery Reading Room. I find the site to be really well put together with a plethora of information for you at your disposal. The site is broken up into several categories:
"A joint project of Law Technology News and Law.com Legal Technology, this is the place you go to find out what is happening across the e-discovery vendor landscape: who has partnered with who, what law firm chose what vendor, new versions of software and products, awards and accolades, breaking news, etc.
Continue reading "Great New Site: The eDiscovery Reading Room" »
"We jump through hoops to do discovery," says attorney and guest author Julia Brickell of H5, and it has become a normal course of action. But are we wed to it? And if so, is it time for a separation? Read more.
Well written decision determining triggering event for legal hold and finding no sanctions since e-mails destroyed were not found to be relevant and conduct was negligent, not grossly negligent. http://www.elawexchange.com/cases/Scalera_2009.pdf.
Cross-reference:
(2nd Ed.), § 7.9, Litigation Hold and SanctionsEnvelope Please: I am delighted to announce the recipients of the juried 2009 LTN Awards (The vendor award winners will be announced separately in the near future).
Before we open the envelope, a round of applause please for our jury: Andrew Adkins III (Levin College of Law, University of Florida), Fredric Lederer (William and Mary Law School), and David Whelan (Law Society of Upper Canada).
The winners are:
• IT Director of the Year: Steve Fletcher (Parker Poe Adams & Bernstein).
• Champion of Technology: Tom Baldwin (Reed Smith).
• Most Innovative Use of Technology by a Law Firm: Tom Baldwin (Reed Smith) (First time we've ever had one firm/individual win in two categories -- the judges were impressed!).
• Most Innovative Use of Technology by an In-House Legal Department: Chad Anson (Dell).
• Most Innovative Use of Technology During a Trial: Khmer Rouge Trial Team (Cambodia Tribunal);
• Most Innovative Use of Technology For a Pro Bono Project: Lynn Burns (Pro Bono Law Ontario).
• Consultant of the Year: Craig Ball.
And I have selected the inaugural winners of the LTN Lifetime Achievement Award: John Alber (Bryan Cave), Thomas Burke (World Software), and M. Thomas Collins (formerly of Juris).
Congratulations to the winners! Watch for more coverage in the February and March editions of Law Technology News, and on our newly upgraded website.
I'm still trying to recover from jet lag after my return from speaking at the HTCIA Asia Pacific Chapter Training Conference in Hong Kong. The HTCIA is the High Technology Crime Investigation Association, the world's largest association of computer forensic examiners. Though it has a decidedly law enforcement bent--to the point of forbidding its members from assisting in the defense of criminal cases--there are probably as many non-law enforcement members in the group as cops. Accordingly, there's been a growing interest in electronic discovery among the ranks of computer forensic examiners, particularly since the local forensic examiner is often the only competent "e-discovery service provider" willing to take on smaller matters involving electronic evidence.
Continue reading "HTCIA Asia Pacific Chapter Training Conference" »
I trust you know, dear reader, that the only thing dumber than a TIFF file is converting your entire e-discovery collection to TIFF images for review. But, while wholesale TIFF conversion will forever be monumentally stupid and profligate, it appears TIFF files just acquired a few brain cells.
At risk of being revealed as the last kid on the block to figure this out, I learned today that Microsoft offers a way to smarten up TIFF images such that load files--those hinky, stinky electronic bills of lading that must accompany TIFF image productions to make them usable--may no longer be needed.
Continue reading "Will Smarter TIFFs from Microsoft Change E-Discovery?" »
Imagine you borrow your buddy's mobile to phone your wife. When you type in her cell number and hit send, the phone recognizes the number as belonging to "Aunt Judy." Huh? Your wife's name is Cindy. Suspicions aroused, you start poking around in the text messages and find exchanges confirming that "Aunt Judy" and your trusted pal have been doing the horizontal mambo. Ouch!
KPMG has created several new partnerships:
* With Kansas-based Archer Technologies (www.archer.com) which provides governance, risk and compliance software and services. The pairing is designed to help organizations improve risk controls. The alliance leverages KPMG's experience with business processes, and Archer's automated services, the two companies note.
* With Thomson Reuters (www.thomsonreuters.com). KMPS now provides Paisley GRC software to clients, helping them manage internal audit, governance, risk and compliance processes.
* With California's Guidance Software. Under the alliance, KPMG offers Guidance’s EnCase eDiscovery software as part of KPMG's Forensic Technology Services. EnCase helps users with early case assessment, identification, preservation, collection and processing of electronically stored information.Cohen & Grigsby has purchased Anacomp Inc.’s CaseLogistix litigation support software to help organize, review, and produce electronically stored information. Kevin Sullivan, the firm’s director of technology, said that the firm chose CaseLogistix based on its ability to manage documents in their native file formats. He also pointed to the advantages of the software’s Unicode capabilities, which will help the firm process foreign language documents for international clients.
The firm also purchased Anacomp's CaseProduction, the system's production module. It helps users manage document production, and can handle native file, image-based or mixed productions. It features formatting options and image endorsements, including the ability to add Bates numbering, redactions or confidentiality statements. It is capable of rule-based, high-volume metadata export into any format.
Anacomp Inc. (www.anacomp.com) is headquartered
in
Minnesota's Avantstar (www.avantstar.com) has announced a partnership with California's Recommind (www.recommind.com). Under the terms of the deal, Recommind will use Avantstar’s desktop file viewing program, Quick View Plus, to provide a viewing feature for its Axcelerate eDiscovery software. The combination will aid the e-discovery process by creating an on-demand window into document review.
Avantstar's Quick View Plus helps users view desktop files, convert content, and publish business information to websites.
California's iConect Development (www.iconect.com) has partnered with Texas-based D6 Consulting, (www.d6llc.com), which offers e-discovery and forensic technology
services. Under the accord, D6 will provide iConect’s ConectnXT software to its clients, helping corporations and law firms with web-based
hosting, review, and collaboration services.
IConectXT features native file and e-mail review tools, bulk tagging, concept searching and clustering. The scalable software can import, search, organize, and review more than 250 languages, including Chinese, Russian, and Arabic.
D6's e-discovery services include processing, productions, and complex data analysis and preservation. It also provides computer forensic examinations and data collection. Press release here.
Wolters Kluwer Law & Business has introduced the
The litigation unit covers
a variety of resources, including news, federal laws, regulations, and case law.
A "Smart Chart" helps users compare products liability issues across all 50
states, with discussions and links to relevant treatise material. Professionals also can choose to purchase the
The EDRM Enron Data Set files should be much easier to download now. They all are loaded on Amazon Web Services, and as a result the time to download them should be much shorter.
The ABA announced their top 100 "Blawgs"in the December issue of the ABA Journal. I was really pleased to see one of my favorite e-discovery blogs make the list.
E-Lessons Learned was founded by Seton Hall e-Discovery Law Professor Fernando M. Pinguelo, The blog is written and run by his law students. Each post covers one case on e-discovery and the ( you guessed it ) "e-lesson learned," from it. The most recent "e-lessons learned" have included the following:
Wikipedia entries cannot be used to prove important facts are true.
AND
The best evidence rule isn’t just for journals, photographs and computers anymore … that’s right, GPS units are now among the electronic devices required to be physically present or have original documentation to support the information taken from the device to be used in testimony.
Like The University of Florida with Ralph Losey, or New York Law School with Michael Dalewitz,it is refreshing to see future lawyers getting acclimated at the student level of this ever growing industry.
We have posted a list of MD5 hash values for the 168 .pst files that comprise the EDRM Enron Data Set. The list is available at the Data Set page. Go to http://edrm.net/activities/projects/data-set, select the "Enron Downloads" tab, and the select the EDRM-Enron-PST-MD5.txt file.
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