Judge Scheindlin Enters Order Correcting Pension Opinion

Judge Scheindlin entered a second amendment to the Pension Committee opinion today, May 28, 2010. Please see my e-Discovery Team blog for the entire text of the Order.  "Likely constitutes negligence" is changed to "could." The "all employees" phrase is also modified to "those with any involvement." We can all breathe a little easier this weekend.

I heard this correction by Judge Scheindlin came about as a result of a question asked of her at a CLE event this week. Anyone care to share the details of that? Who gets the credit for bringing this glitch in wording to her attention?

CEIC a Smash

The annual Computer and Enterprise Investigations Conference (CEIC) wrapped up this afternoon after four unseasonably and delightfully cool days in Las Vegas.  Sponsored by Guidance Software, CEIC has mutated from a largely guns-and-badges event focused on EnCase and forensic investigation to a principally corporate extravaganza with a growing emphasis on e-discovery.  It was a splendid conference, with some of the strongest EDD offerings I've seen of late. I wasn't there as a speaker, so I could relax and enjoy the parts of the conference that weren't focused on e-discovery, catching up on the latest developments in incident response and computer forensics. 

Imagine, a conference drawing top talent in BOTH computer forensics and e-discovery, with as much e-evidence talent and experience in the audience as at the podia.  What a networking bonanza! 

ILTA 2010: It's What Happens in Vegas

When Nashville flooded a few weeks ago, one of the casualties was the Gaylord Opryland Resort that was to have played host to the 2010 ILTA convention. Speakers and attendees have been in suspense since the rivers rose, waiting to find out where ILTA would anchor.  The answer is Vegas, baby!  And not just anywhere in Vegas, but the brand new Aria Resort, centerpiece of the sprawling, sparkling CityCenter complex just south of the Bellagio.

I happened to be in Las Vegas this evening, so I strolled over to CityCenter for a firsthand preview of how ILTA will fit the Aria.  "Strolled" hardly applies to any trudge along the Strip--a block in Vegas is five blocks most other places--but when I asked the folks at the Bellagio the best route to CityCenter, you'd think I'd asked them about the best way up K2!  They instead herded me to the tram that connects the two properties--a slick little train like those that carry passengers between terminals at major airports.  It signaled that Aria was going to be a different Vegas experience...and it was.

Big Brother? More like Big Mother

I'm pretty relaxed about electronic privacy issues.  I don't freak out when someone asks for my SSN because I know how easy it is to buy anyone's SSN on the web.   I'm well aware of the electronic footprints I leave everywhere I surf, call, drive, stay, buy and fly.  Forensic examiners like me make a living following those footprints.  My cell phone tracks my location, my car records my driving habits and my computer spots almost everything else.  I'm flattered they care. 

But, I came across something this week that scares the heck out of me.  It'd make even Scott "You have zero privacy anyway. Get over it" McNealy's skin crawl.  It's a pair of products called Computrace and LoJack for Laptops from Absolute Software, Inc.  Per the company's Regional Director for the U.S. and Mexico, they're brought to us by the same folks whose product enabled the school district in Pennsylvania to activate webcams and sneak peeks into students' bedrooms.

eDiscovery@work

The Organization of Legal Professionals (www.theolp.org) has entered into an alliance with the Center for Advanced Legal Studies (www.paralegal.edu) to launch eDiscovery@work, an eight-week program made up of three interactive, online courses design to teach legal professionals about EDD.

Release here.

Planet Data & Law.com ECA Webinar

Planet Data (www.planetds.com) and Law.com (www.law.com) have scheduled a webinar to discuss current requirements and key issues in early case assessment on June 16.

Release here.

Core Four and the Quest for WORLD PEACE

When I was a law student at the University of Texas, I studied Texas Civil Procedure and Trial Advocacy from an Austin Cicero named Pat Hazel.  Professor Hazel practiced law, and tainted thus, stood out among the Ivy League academics who dominated the faculty.  One of the many practical tips I picked up from Pat was an easy way to remember the steps to introduce a document into evidence: MIAO (pronounced "meow") for Mark, Identify, Authenticate and Offer.  It's a simple mnemonic, and one that's served me well in the crucible of trial.

I reflected on the benefit I reaped from that mnemonic today as I wrote an an attorney struggling with e-discovery (is there any other kind of attorney these days?).  I was trying to cajole him to use better practices in meeting his discovery responsibilities.  My mnemonics were far less easy or elegant than MIAO, but perhaps the Core Four and WORLD PEACE will help you come up with something better still.

A Call to Participate in Predictive Coding Survey

The eDiscovery Institute, a 501(c)(3) research organization, has just initiated a survey of companies and law firms that use "predictive coding" for discovery review. We define that as coding a sample set of records and the propagating those decisions to records that have not been visually examined.

Predictive coding holds the promise of faster, less expensive and more consistent reviews, and the purpose of the survey is to document the different technologies and processes that are used to achieve predictive coding and to provide metrics on the benefits of this approach.

If you would be interested in participating in the survey but have not received an invite, please contact me at Joe at eDiscoveryInstitute dot org. Prior surveys on deduping and email threading have resulted in articles in Law Technology News, the ACC Docket, DRI's For the Defense, and elsewhere so hopefully everybody wins by participating in this sort of effort.

Management maven Peter Drucker said something to the effect that you can't manage what you don't measure, and controlling litigation costs will be much easier if there are metrics and benchmarks available.

3 TB Drives Coming -- Ready or (Most Likely) Not

Now and then, I pause to marvel at how far we've come in certain aspects of consumer computing and how little we've progressed in others.  The iPads and handhelds aside, advances in personal computing have largely leveled off.  Save the Great Leap Forward of connectivity, the personal computing experience of 2010 isn't that much different from 2000, is it?  Cheaper, to be sure, and generally better designed, but much of what we do locally on a machine is the same. 

Even those largely meaningless leaps in processor speed that drove PC marketing in years past have quieted down.  Like most of us, processors are getting wider not faster: dual core, quad core, dual-quad core, etc.

But there's an area of the personal computing experience where the progress has been stunning, and has had as marked an influence on e-discovery (and computer forensics) as Judges Scheindlin, Rosenthal, Facciola and Grimm combined.  That's storage, particularly the explosive growth in areal density of hard drives.  We are about to hit a milestone that struck me as unattainable and fantastic just a few years ago: the three terabyte local drive for the desktop.  And it means new operating systems are here just in the nick of time.

Is There a Need for Online e-Discovery Education?

Yes, I think there is a strong need for online e-discovery instruction programs, and they could help the legal system out of the morass it is now in, but only if:

1. The content is good - very good. The program must not only have high quality instructional programs, hyper-text, graphics, audio, and video by the best in the business, but it must also be engaging, creative and challenging. It must involve serious students in an interactive process and a community of experts. This is a difficult subject to teach and it demands high standards of online instruction to succeed.
2. The online program requires serious study and commitment, so that it means something when a student completes it. In my view, this means 60 to 120 hours of study are required to complete the program (the equivalent of a 3-credit course in law school), depending on how much a student wants to get out of it and how well they want to do. This requires motivated students. It also requires tests.There has to be a way to measure whether online students have really studied and understood the materials. This means that a student can and should fail, and be required to do it again, if they do not demonstrate a basic understanding of the information and ideas presented. This means certification, not of competence, that is another story, but of understanding of the materials. It also requires evaluation, either by the traditional grading system, A-F, or by a Pass-Fail system with an Honors component. Excellence needs to be recognized and rewarded. 
   

Guidance Software Acquires Tableau

 Guidance Software (www.guidancesoftware.com) has acquired computer forensic hardware manufacturer Tableau (www.tableau.com). The acquisition give Guidance Software's clients access to Tableau's line of data-acquisition products including multiple "write blocker" products, which prevent data from being altered while its is being collected during the forensic process, forensic duplicators, and other hardware. Guidance Software has also created a forensic business unit headed by former Tableau president Robert Botchek. 

Release here.

Spoliation at Street Level?

An article in today's New York Times describes how Google "inadvertently" collected years of "private information" from unsecured WiFi networks usings its Street View mapping vehicles.  It might have been a tempest in a techno-teapot but for Google's earlier denials of having done such a thing.  It raises two e-discovery questions for you:

1. Should Google anticipate a claim or suit arising from this matter such that preservation obligations attach under applicable law?

2. If so, how and when can Google act on its professed desire to delete the data as soon as possible?

CT Summation Enterprise 2.7 Webinar 5/19

CT Summation (www.ctsummation.com) has scheduled a webinar to discuss the various functions and uses of its Enterprise 2.7 EDD software on May 19.

Release here.

Uptime Uncertain

A tad off-topic, but the release this week of Office 2010 and its new, free web counterpart got me thinking about whether web productivity apps will soon replace standalone apps. Is the answer tied to the similarities and differences between connectivity and power?

Fios: Shakeup at the Top

John Hesse, newly-named President and CEO at Fios reports that it's "basically business as usual" at the Portland-based e-discovery service provider after the unexpected departure of former CEO, Chris Junker.  Junker, who held the top spot for eight months, resigned for undisclosed personal reasons and returns to Chicago.

John Hesse, who most recently served as the company's CFO and COO, was upbeat on the sudden shuffle.  Per Hesse, "It's an exciting time at Fios." 

Undoubtedly.

Here's the press release.

Requiem for a Stillborn Rule

(Organ music subsides)  Thank you for coming.  We're gathered to remember FRCP Rule 37(e), our Safe Harbor.  Deformed by breech birth, Safe Harbor was unloved, ridiculed and scorned.  Sure, Safe Harbor never did anyone a lick of good, but what do you expect from a three year old?  Rest in peace, 37(e), we hardly knew ye.  Rule 26(f) will host the wake.

I confess I never liked Rule 37(e)--née 37(f)--but I never wished it the ignominous end it met in Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010).  It was always a struggle to get 37(e) to actually bail anyone out of an e-discovery flub up.  Advocates trotted out 37(e), and courts paid it lip service; but, its jurisprudence seemed confined to cases explaining why it didn't apply to the facts presented.  Rule 37(e) is to spoilation sanctions what duck-and-cover was to nuclear attack. 

Still, sooner-or-later, I imagined there would be an instance of innocent data loss--the crashed drive or rotated tape--that would let 37(e) step up and save the day.  Right?

Wrong.  If 37(e) can't save the bacon in Wilson v. Thorn Energy, it might as well be dead.

Update to Arkfeld on Electronic Discovery and Evidence

Law Partner Publishing and LexisNexis have published the March, 2010 edition of Arkfeld on Electronic Discovery and Evidence (2nd Ed.)

WHAT'S NEW?

Updated and expanded through January, 2010 this edition (1300+ pages) includes a detailed discussion of e-discovery federal and state cases with critical cross references to the underlying technology and legal concepts. Building on the well-organized and acclaimed first edition of this treatise, the second edition expands to cover the latest issues affecting e-discovery, including:

• Latest cases on cost allocation, proportionality, and “not reasonably accessible” issues.
• Analysis of “reasonably usable form,” “kept in the usual course of business,” and ESI “form or forms.”
• Analysis of “meet and confer” obligations including discussing “any issues relating to disclosure or discovery” of ESI.

Law Partner Publishing and LexisNexis have published the March, 2010 edition of Arkfeld on Electronic Discovery and Evidence (2nd Ed.)

WHAT'S NEW?

Updated and expanded through January, 2010 this edition (1300+ pages) includes a detailed discussion of e-discovery federal and state cases with critical cross references to the underlying technology and legal concepts. Building on the well-organized and acclaimed first edition of this treatise, the second edition expands to cover the latest issues affecting e-discovery, including:

• Latest cases on cost allocation, proportionality, and “not reasonably accessible” issues.
• Analysis of “reasonably usable form,” “kept in the usual course of business,” and ESI “form or forms.”
• Analysis of “meet and confer” obligations including discussing “any issues relating to disclosure or discovery” of ESI.

Nextpoint Upgrades Discovery Cloud and Trial Cloud

Nextpoint (www.nextpoint.com) has added scrolling and zooming capabilities to its Discovery Cloud and Trial Cloud document reviewer.

Release here.

Virtual LegalTech to Feature Virtual Meet and Confer

ALM (www.alm.com) is hosting a virtual meet and confer as part of its Virtual LegalTech on May 20. The meet and confer will be followed by a subsequent emergency hearing to demonstrate how organizations can use e-discovery, assessment and records management software to successfully navigate litigation-related discovery. The event covers what happens when two attorneys in a case cannot come to an agreement and require intervention from the Court.

Release here.

Cricket Legal Discovery Suite 6 Released

Cricket Legal Technologies (www.cricketlegaltechnologies.com) has updated its Cricket Discovery Suite 6. Improvements to the software include automated distributed processing, enhanced Lotus Notes support, and improved loading and imaging speeds.

Release here.

KCura Releases Relativity Six

KCura (www.kcura.com) has announced the release of its Relativity Six e-discovery review software.

Release here.

Mitratech Updates TeamConnect Legal Hold

Mitratech (www.mitratech.com) reports that it has updated its TeamConnect Legal Hold software. The update includes an improved user interface and navigation functions.

Press here.

CT Summation CaseVault Precision Webinar 5/11

CT Summation (www.summation.com) has scheduled a webinar discussing the future of legal review with CaseVault Precision on May 11 featuring Art Skaran and Warren DiDonato, both directors of the company's eDiscovery Solutions unit.

Release here.

Are We Paying Five Times Too Much for E-discovery?

The problem with proportionality analyses is that they make no provision for distortion of cost attributable to incompetence and disorganization.  They simply accept the unacceptable and make it their baseline.

 

Each time I read lawyers' assessment of the justice system as "broken" and see e-discovery blamed, I wonder if the commentators bring sufficient skill respecting ESI and information systems to the table. Are they using cost-effective methods and forms?  Are they fully conversant in the nature, location and volume of the client's systems and ESI?  Have they been transparent and cooperative in dealing with the other side?  Did they really perform well, only to find themselves at the mercy of a craven opponent and crazed judge?  Or are they conveniently ignoring how their own failings with ESI contribute to waste and excess?

Are Custodial Preservation and Collection Efforts Dead?

Remember the slapstick of trying to drive for the very first time?  You hit the gas and rocket away then slam on the brakes and nearly kiss the windshield.  Gas.  Brakes.  Gas.  Brakes.  New drivers know only zoom and screech.  Modulation takes time.

 

I'm reminded of this bipolar behavior reading cases questioning the adequacy of custodial-directed preservation and collection of ESI.  Some think custodial-directed preservation and collection efforts are dead.  I don't.