Cowen Group Leadership Roundtable Series Stops in SF

The general consensus among corporate legal and law firms attending the Cowen Group San Francisco Roundatable, was that e-discovery costs continue to rise; notwithstanding all the new innovative technology and vendor promises.

Corporate is struggling with trying to build efficient processes and work flow around their new e-discovery technology. Keeping people properly trained was another sore point.  The trend back toward managed services is being partly fueled by these deficiencies.  All agreed that building e-discovery into corporate information governance is a key to stabilizing costs.

The discussion concluded with predictions about what the next big Zubulake defining moment might be. Some say security vulnerability around ESI is a gap waiting for a hack.  I predict that communication using social media will over tack email in the next several years as the dominant ESI source.

The discussion moves to Chicago, Minneapolis, and concludes in Boston in late September.

 

Search Validation Testing & Defensible Production

We are seeing an emphasis on sampling, validation testing and quality control.  What can go wrong without proper quality control was recently seen in the Casey Anthony eforensic evidence and McDermott Will & Emery e-discovery gaffes. 

I predict 2012 will be the year of search validation testing.  Being able to defend the production requires proving the discovery process used yielded the desired results. Having detailed protocols to analyze, identify, and validate the search is now the linchpin to a defensible production. The Sedona Conference has an excellent reference publication on this point called Commentary on Achieving Quality in the E-Discovery Process.

At the Rule 26(f) disclosure, details on validation testing should be part of that discussion. The 30(b)(6) witness is also starting to be subjected to intense questioning on how the producing party will validate the process used to search, collect and process the ESI subject to discovery. Finally, when sending out an e-discovery technology RFP, make sure you include questions on the validation process and exception reporting.

With all the new technology and methodology available to search for relevant ESI, the time has come to ask the hard questions and prove the results matched expectations.

Supreme Court to Decide GPS Case

The United States Supreme Court is going to decide next year whether the warrantless use of a GPS tracking device on a defendant's vehicle to monitor its movements on public streets violated the Fourth Amendment. The case is United States v. Jones, Supreme Court Docket No. 10-1259.   (You can read my various takes on this issue here.)

A related —  but equally important —  question involves who has standing to challenge GPS tracking.

This issue was raised in United States v. Hernandez (Fifth Circuit No. No. 10-10695, July 18, 2011).

  In this case, federal agents inserted a GPS device on the defendant’s brother’s truck. The agents later learned through a wiretap that the defendant would be driving the truck to pick up drugs. Using the GPS device, the agents tracked the defendant, stopped him, and discovered 20 pounds of methamphetamine.

Awards & Accolades

 Good news! Our Law Technology News team has been honored in three competitions! We just heard that we won two silver awards in the American Society of Business Publication Editors' Northeast Regional 2011 contest — for our EDD Showcase (special section) and Craig Ball’s “Ball in Your Court” (contributed column — his seventh ASBPE!). Art director Shane DeLeer’s wonderful “Help, Please!” cover also is up for a national ASBPE design award that will be announced next week at ASBPE's national convention.

LTN also received our first award for digital reporting — a bronze "Tabbie" from the Trade Association Business Publications International competition, in its "Online Feature" category for my report from New Orlean’s “Green Matters” conference about the intersection of legal, government, and corporate forces in efforts to combat global warming.

And we were delighted that Fastcase has named Web Watch columnist Bob Ambrogi and moi to its inaugural “Fastcase 50” roster. The list, says Fastcase (a national legal research service), “recognizes  today’s smartest, most courageous innovators, techies, visionaries and leaders in the law.” The Washington, D.C.-based company invited the legal community to submit nominations and then chose their first winners. Our former colleague Ashby Jones (now at the Wall Street Journal), and LTN board members/regular contributors Catherine Sanders Reach, Ernie Svenson, David Whelan, and John Waters also made the list!)  

Humble thanks to the organizations for the very appreciated recognition of our team's work!

Law Firms are the Weakest Link in Data Security

As reported here and elsewhere, law firms continue to lag significantly behind the rest of the business world in terms of data security. This is hard to believe considering lawyers have an ethical obligation to "zealously protect client confidences and secrets." Before you hand over your valuable intellectual property to a law firm, always ask: Is the law firm secure enough to receive my data?

Albert Barsocchini is a San Francisco-based consultant and attorney.

Laura on 'Zubulake' and Issues With E-Mail

 Laura Zubulake spoke at the Carmel Valley Retreat last week. Everyone was impressed with her attention to detail and perseverance when her counsel was ready to throw in the towel.  At the end of the 60-minute speech, she said that after all that has happened since her case was decided, the real problem remains -- how employees use their e-mail, and that e-mail is inherently out of context.

She says companies need to vigorously train their employees on proper use e-mail from the top down. Every e-mail should be drafted as if it will be read in court.  To that end, she apprently intends to start a consulting company to address this need and work with companies to tighten how e-mail is used and hopefully avoid the so called smoking gun. The energizer bunny keeps on running!

Albert Barsocchini is a San Francisco-based consultant and attorney.

e-Discovery Job Seekers Site

E-Discovery Jobs Site Launching Soon

This is a great idea...putting all e-Discovery job seekers under one umbrella.  Another tool to help candidates, ogranizations, and the industry grow.

Blistering Pace of EDD Decisions at Mid-Year

Gibson, Dunn & Crutcher has released its 2011 Mid-Year E-Discovery Update, which surveys 187 cases from the first half of this year and analyzes the e-discovery trends. Highlights from the report include:

• The number of electronic data discovery decisions continues to increase at a blistering pace. The 187 decisions the survey identified in the first half of 2011 represents an 82% increase over the 103 decisions identified at mid-year 2010.
• Litigants sought sanctions nearly twice as many times in the first half of 2011 as they did in the same period last year (68 at mid-year 2011 versus 31 at mid-year 2010), and sanctions awards have nearly doubled in absolute terms (38 at mid-year 2011 versus 21 at mid-year 2010).
• Despite the increase in sanctions sought, courts awarded sanctions at essentially the same rate as in 2010 (56% of the instances in which a party sought sanctions in the first half of 2011, versus 55% for the full year in 2010).
• It turns out that there is such a thing as "discovery karma," at least in the 10^th Circuit, and courts may not appreciate "ankle-biting" an opponent for alleged discovery glitches, especially when one's own house is not in order.
• While no reported case addressed the use of predictive coding or other advanced search technologies, there is no doubt that these tools have been noticed, as The New York Times and Forbes focused on their potential impact in featured articles.
• E-discovery law continued to develop rapidly, and while some areas of law are coming into focus, other areas — including basic issues such as whether a litigation hold notice must be written -- continue to be heavily debated.
• Calls for reform of the Federal Rules of Civil Procedure continued, and the Civil Rules Advisory Committee is considering various approaches to address concerns raised at the Duke Conference in 2010.

For more detailed analysis of the 2011 mid-year trends, see the full report on Gibson Dunn's website.

Image: Clipart.com

26(g) Atty Certification Includes Tech Used for Production

At the Carmel Valley eDiscovery Retreat panel discussion on "Defending Your E-Discovery Process," the scope of the attorney certification to a document production was discussed in detail. 

FRCP 26 (g) requires every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record certifying they have done a reasonable inquiry and it is complete and correct. The consequences of an an attorney not doing a reasonable inquiry was painfully addressed in Qualcomm v. Broadcom Corp.  

EDD Changes to Federal Rules of Civil Procedure

Discussions about possible e-discovery-related changes to the Federal Rules of Civil Procedure are now being circulated by a subcommittee of the Judicial Conference of the United States, but any official changes aren't likely until 2013, committee chairman and District Court Judge for Arizona David Campbell said. Such updates will be the first since 2006.

"Our intention on September 9 is not to try to get a consensus from this group. It's really to learn from these folks ... it's more of a due diligence effort on the part of our subcommittee," Campbell explained.

The committee will begin seeking public comments later this year or early next year. However, here at EDD Update and Law Technology News, we welcome your comments anytime!

Read the full story and let us know what, if anything would be good changes for e-discovery in the FRCP.

DISH Network Sponsors EDD Writing Contest

Jonathan Redgrave alerts us to a new "Best in Class" EDD legal research and writing competition for United States law students, designed to encourage "a more thorough understanding of the evolution and practice of discovery in civil litgation." The contest is sponsored by Dish Network.

The inaugural contest question is: "Are further amendments to the Federal Rules of Civil Procedure necessary to help litigants address the complexities, costs and burdens associated with electronic discovery?"

Washington, D.C.-based Redgrave split off last year from Nixon Peabody, to form his self-named firm, which is based in Minneapolis, and provides "legal services relating to the management of information in today’s global economy, especially as it relates to electronic, privacy and data security."  He is a co-chair of the Georgetown E-Discovery Institute, and is active with the Sedona Conference.

The firm and R. Stanton Doge, Dish's executive vice president and general counsel, will select the winners.  First place prize: $2,500; two runners-up will receive $1,000 each. Deadline: 10/1/11. 411 here.

Image: Redgrave

Searching Student Cell Phones

The issue of when officials can search a student's cell phone is an emerging e-discovery issue. This is illustrated in the recent case   N.N. v. Tunkhannock Area School District, Civil Action No. 3:10-CV-1080, United States District Court, M.D. Pennsylvania.

In this case, a student at Tunkhannock Area High School violated a school policy requiring cell phones to be turned off and stored in lockers during the school day by placing a call from her cell phone while on school property. A teacher confiscated the phone. School officials then examined the contents of the cell phone and discovered what appeared to be inappropriate photographs stored in the phone's memory. 

The phone was turned over to the police. The court opinion states that, “Aside from one photograph taken by a female friend, the photographs were taken by [the student] alone, and were intended for the sole consumption of herself and her long-term boyfriend. The photographs were taken off school property, were saved to the cell phone, were never e-mailed or uploaded to the internet, and were not shared with other students.”

EDRM Model Code of Conduct Guidelines

The Electronic Discovery Reference Model Code of Conduct was published on July 9 and is posted here.  

Congratulations to the MCoC team for tireless dedication to work through many thorny issues. The MCoC addresses five key principles: professionalism, engagement, conflicts of interest, sound process, and security and confidentiality. Each principle focuses on service providers and is accompanied by a corollary focusing on the client perspective.

These guidelines are aspirational and intentionally carry no enforcement authority. They do, however, shine a light on important issues that should concern participants in the electronic discovery marketplace.

Publishing the MCoC starts the conversation. Please keep it going by letting us know your thoughts.

Regards, on behalf of the EDRM Model Code of Conduct team

Rupert Murdoch Scandal = e-Discovery Story

The scandal of Rupert Murdoch, the world’s most powerful media mogul, is essentially a story of e-discovery, the seamy dark side of e-discovery that operates underground and in violation of the law —  the world of hackers.

The e-Discovery Team blog this week explains what phone hacking is, a few of the most common ways hackers do it, and how you can protect yourself. I also go into the ethical duties of lawyers to act competently to preserve confidentiality and the new ABA proposed model rule 1.6(c) which says:

(c) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.

Finally, I include a link to one of the funniest, and most insightful comedy routines I've ever seen Stephen Colbert do reporting on the Murdoch scandal. He concludes his bit with a report of his hack into the voice mail of Rupert Murdoch's attorney. Could this happen to you?

Legal Technology Leadership Summit - Amelia Island

More than 50 speakers will be joining the faculty at our upcoming  Electronic Discovery Institute's Legal Technology Leadership Summit, Sept. 6-8, at the Ritz Carlton Amelia Island. The program targets corporate counsel, records management, judges, IT and litigation support professionals.

Details:  http://www.legaltechnology2011.com

We are offering scholarships for a limited number of qualified in-house corporate attendees that have budget shortfalls this year. Among the many corporate counsel speakers is Microsoft's Nishan DeSilva, who oversaw the winning project in the 2010 Law Technology News Award for Best Use of Technology in a Law Department. (See "Eat Your Own Dogfood," LTN April, 2010.)

Also, if you work in an a corporate legal, records management, or IT department, and have a compelling story to to tell on one of our panels, please contact info@ediscoveryinstitute.org for details.

Disclaimer: I am involved in the event!

Image: Ritz Carlton/Electronic Discovery Institute

Document Review Under the Microscope

The J-M Manufacturing Co.e-discovery malpractice suit against McDermott Will & Emery, has caused the document review process to come under close scrutiny. This is healthy and long overdue. The review process is costly, complex, requires expert supervision, careful training, defensible protocols and quality control.

Traditionally, law firms used their first year associates to conduct document reviews. Now we are seeing those associates taking on more of a management function over the review process. Document review is part art and part science that requires unique skill sets. To that end, document review attorneys are becoming specialized and actually making a career of it. Maybe certification is not far behind.

One of the most important decisions in e-discovery, is who to use for the legal process sourcing of the review. Best practices requires having a well thought out document review protocol that is supervised by an experienced professional and having the right review team.  

Image: Clipart.com

Smile You're on Biometric Camera!

The Wall Street Journal reported that police agencies in several states are getting biometric technology attached to iPhone that can recognize faces, scan irises and collect fingerprints. Made by BI2 Technologies, this device can scan the suspect and then query different databases for matches. The technology can also be used to identify missing children and sex offenders.  

The technology goes beyond law enforcement and could also be used by retailers, etc. to profile customers as they walk in the door. Biometric intelligence and identification technology for facial profiling has obvious privacy and constitutional issues that need to be sorted out by the courts.  For now, the next time you see a law enforcement officer holding an iphone up to you, be sure to smile, because your on biometric camera!!

Image: Clipart.com

LEDES E-Discovery Codes Ratified, Webinar Comes Next

E-discovery billing codes from the Legal Electronic Data Exchange Standards are now official, LEDES Oversight Committee President Jane Bennitt told me in an email this morning. The code set passed a vote yesterday and now the committee is developing an educational webinar about how to use it.

Bennitt wrote: "The LOC formed a development subcommittee in 2010 that included more than 170 participants. After several meetings, a proposed set was developed and discussed at our members’ meeting in February. We posted the proposed set for public comment for a period of 3 months. Once the comment period closed, all feedback received was addressed by the subcommittee and the final set was presented to the Board for consideration. Our Standards Coordinator reviewed the process undertaken to ensure all of the LEDES Oversight Committee required development steps had been followed. As the final step, the Board voted yesterday to ratify the standard."

British Phone Hacking

Here's a brief comment on the British cell phone hacking scandal, and how it has caused me to reconsider what I thought was an established issue. By now, everyone should know the basic outlines of the scandal. Some of the best coverage is on the Guardian website.

As the coverage explains, the phone “hacking” was not very sophisticated. Supposedly, the paper used a caller ID spoof to access cell phone voicemail boxes. This access was possible because many early voicemail systems used caller ID instead of a password. Later, the paper was able to access messages because individuals did not change the default password.

Some more recent news reports suggest that reporters may have bribed police officers or used other potentially illegal methods to obtain information, including data obtained from cellphone-tracking technology. However, I want to focus on the voicemail password implications of this story for the Fourth Amendment analysis.

From the Fourth Amendment perspective, the Supreme Court has famously held that a search occurs when "an expectation of privacy that society is prepared to consider reasonable is infringed." Katz v. United States, 389 U.S. 347 (1967). 

Looking for a Few Good e-Neutrals

A new organization called the American College of e-Neutrals launched in April 2011. ACESIN describes itself as an organization dedicated to the education, training, credentials, and use of so called "e-Neutrals" committed to resolving e-discovery disputes. Similar to the Academy of Court-Appointed Masters (ACAM), but focused solely on e-discovery. To be sure, both organizations do not certify members; instead, they offer a level of competency based on their respective member selection process. 

E-discovery special masters are an important resource in resolving discovery disputes and making sure things run smoothly. These organizations serve a useful purpose in helping find a special master with a level of training and knowledge necessary to navigate through the complexities and nuances of e-discovery....and hopefully resolve disputes too!

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E-Discovery's Quality Control Problem

JM Eagle, among the largest manufacturers of industrial pipes, last month sued McDermott Will & Emery for allegedly disclosing 3,900 privileged documents in an e-discovery process. Now, a question is floating around the legal tech industry: what is the state of e-discovery quality control?

The pipe company, according to a whistleblower profiled in The New York Times, falsified its test results and knowingly sold flawed products to various governments. The pipes burst, causing millions of dollars in damage and replacement construction. McDermott was hired as JM Eagle's e-discovery counsel, who in turned hired contract attorneys and used software from Stratify, which is now part of Autonomy. Somewhere along the way, JM Eagle says, there was fraudulent, malicious, and/or oppressive behavior (ironic given the nature of the original claims against that company.)

The "Most Valuable Player" Is Not Technology

We hear much about the value of technology and we are continuously inundated with technology at all the e-discovery trade shows.  A March article in The New York Times reported that armies of expensive lawyers will soon be replaced by cheaper software. A recent malpractice lawsuit against McDermott law firm demonstrates that technology is not the MVP; rather it is the people who make the decisions along the way.

E-Discovery is now a discipline and we need trained professionals who can take charge and navigate through these often difficult waters avoiding sanctions, malpractice, loss of client goodwill, and damaged reputations. Reading sanction decisions over the last two years reveals that in almost 100 percent of the cases, it was bad decision making, lack of communication, not understanding technology and/or failure to properly follow-up that caused the problems. 

Harvard Review Addresses Grand Jury Subpoenas

Check out the interesting article in the Harvard Journal of Law and Technology, by Joshua Gruenspecht, “ 'Reasonable’” Grand Jury Subpoenas: Asking For Information In The Age Of Big Data.” (He appears to be a fellow at the Center for Democracy and Technology.)

The law review article discusses grand jury subpoenas issued for electronic records. The author notes that while “standards for the use of warrants for the collection of evidence have been the subject of judicial conflict, scholarly debate, and public outcry, standards for the use of the grand jury subpoena have slippedby relatively unnoticed.”  And that “faced with an avalanche of stored information, has started to lay down ground rules for data production, only a few criminal cases have begun to grapple with the production of electronically stored information in response to subpoenas.”

Integreon's Transformation Involves New CEO, Apps

Integreon is tired of being known as just a service provider, so the company is trying to change its image. Step 1: hire an experienced CEO. Step 2: rebuild your major software. Step 3: alert the press! Read all about it here on LTN. Integreon has interesting differentiation plans, but can they pull it off?

Data: Driving Force in Web 3.0

Interesting article in the Wall Street Journal about Reid Hoffman, founder of LinkedIn and known as the most connected person in Silicon Valley. He thinks data will be the driving force in Web 3.0.  All this data being collected about you when visiting websites and exploring new apps will be used to build new businesses. He said that "data will be foundational in the next wave of mass applications that go to hundreds of millions of people."

How will e-discovery vendors and lawyers respond to these new human ecosystems and data sources? Being able to effectively harvest, process and display social media data is the next big wave in e-discovery. Currently attorneys use social media as a bargaining chip when negotiating the parameters of discovery in large litigation matters. Especially for companies with their own social media platforms or who outsource to companies such as Yammer.  It is currently difficult and time consuming to harvest and serve up social media ESI for review. That will all change!

New e-discovery vendors will emerge to set the standard for e-discovery of social media and all the new potential data sources that will become the target of discovery.  These new data sources will certainly create big headaches for lawyers and vendors alike. 

Image: Clipart.com