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October 2011

October 31, 2011

The Truth About Processing Speed

Vendors like to brag about being "fast" at processing in electronic discovery.  However, when you look behind the speed claims, it is clear that the devil is in the details.  

Most vendors tell you how fast they can ingest/import documents for processing, but fail to mention such things as how long it takes to export documents for analysis and review and all the meta data that may be left behind. Here are some questions to ask when the need for speed is critical to your production.

  1. Does the vendor extract and preserve [all] meta data during import?  Some leave important meta data behind in order not to sacrifice ingestion speed.

Continue reading "The Truth About Processing Speed" »

New Tools to Manage Patent Litigation Ediscovery Cost

The Texas Lawyer recently reported that Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit unveiled a model order that would limit ediscovery in patent cases. Rader, acknowledging the tremendous expense of patent litigation discovery, hopes that federal courts will use the Model Order as a helpful starting point to enforce responsible, targeted use of e-discovery in patent cases. Key elements of the Model Order:

1. Employ cost shifting for disproportionate electronically stored information requests.
2. Prohibit metadata production (absent good cause).
3. Restrict email production.
4. Limit potential privilege waivers.

In LTN’s The Elephant in the Patent Courtroom I review the Model Order’s key components and propose additional approaches patent litigants can employ to reduce discovery expenses. I conclude that the Model Order’s cost-shifting, email and privilege waiver, along with other thoughtfully applied FRCP provisions and cooperation between the parties, should help reduce the costs parties face in patent litigation.

Continue reading "New Tools to Manage Patent Litigation Ediscovery Cost" »

October 24, 2011

Yale Team Addresses GPS Limits

Fellows from the Information Society Project at Yale Law School have just published an article on the upcoming GPS tracking case before the Supreme Court.

GpsPriscilla Smith, Nabiha Syed, David Thaw and Albert Wong are the authors of "When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches," 121 Yale. J. Online 177 (2011).  I highly recommend it.

The authors argue that “the use of GPS surveillance for prolonged monitoring without a warrant cannot pass muster under the Fourth Amendment.” They suggest that in evaluating new technologies, “wherever a new technology carries the potential for police abuse, the Court has allowed its use only as guarded by the warrant requirement, placing a check on the unlimited discretion otherwise afforded officers.” 

Continue reading "Yale Team Addresses GPS Limits" »

New Trend: Big Cost Awards for Winners

Winner“Winning isn’t everything, it’s the only thing” —  Examining the new trend towards big e-discovery cost awards for winners

It is now sweeter than ever to be a victor in federal court. That’s because of the hot new trend to award winners their e-discovery costs under 28 U.S.C. §1920(4) and Rule 54(d)(1) FRCP. Courts are now beginning to consider the services of an e-discovery vendor as “the 21st century equivalent of making copies.” CBT Flint Partners, LLC v. Return Path, Inc., 676 F.Supp.2d 1376, 1381 (N.D. Ga. 2009).

The top three cases to look at first in this area area:

•  In re Aspartame Antitrust Litigation, No. 2:06-CV-1732, 2011 (E.D. Penn. Oct. 5, 2011) ($500,000 e-discovery costs award to defendants);

Continue reading "New Trend: Big Cost Awards for Winners" »

October 20, 2011

TREC Legal Track 2010/2011 Updates

New data from the TREC Legal Track e-discovery experiment is coming soon, director Gordon Cormack said.

"The overview for TREC 2010 will be published shortly. (It is late.) The overview for TREC 2011 will be published in Feb. 2012," he wrote in an email response to Law Technology News' questions today.

However, "There won't really be a direct comparison between 2010 and 2011 because the task and evaluation methods are slightly different," added Cormack, who is also a University of Waterlook computer science professor.

Continue reading "TREC Legal Track 2010/2011 Updates" »

Nuix 2011 Exchange - Sydney

From Patrick Oot:

I was fortunate to attend Nuix's 2011 Exchange in Sydney, Australia this week. Special thanks to CEO Eddy Sheehy, and the entire Nuix team for putting on a stellar event.

Craig Ball opened the event with a technology focused keynote on the future trends of e-discovery. David Cowen, of The Cowen Group, provided a commentary, as well as a team-building exercise discussing career building opportunities in the legal technology space.

Chris Dale facilitated the highlight judicial session with U.S. District Court Magistrate Judge Andrew Peck (S.D.N.Y.), Senior Master Whitaker (U.K.), and Justice Arthur Emmett (Australia).  

Computer-assisted review and proportionality were the main topics presented. The day continued with case studies facilitated by Matthew Miller (Ethemis) and Cowen, with case studies presented Paul Johnston (National Australian Bank), Paul D’Agosta (First Southwest Company), and Susan Jackson (Novelis).
The second day was filled with product road map discussions and the future of cloud computing in "enterprise." environments.

Continue reading "Nuix 2011 Exchange - Sydney" »

U.S Cyber Commander Declares Cyber War!

Dir_alexanderKeith Alexander, commander, U.S. Cyber Command, and director of the National Security Agency , spoke this week at the GEOINT 2011 Symposium in San Antonio, at one of the largest intelligence events of the year.

Cyber intrusions have caused the greatest transfer of wealth in the history of our nation. We need to change the way we guard our intellectual property, because most hacks are not discovered until months after the intrusion has occurred and the damage already done. Exploits against industry and the U.S. government are huge and easily exceed $1 billion a year.


1. Go virtual and head to the cloud.
2. Migrate from thick to thin client.
3. Demand strong information governance.
4. Centralize data storage.
5. Use strong authentication.
6.Use open source software.

Companies should stop creating incompatible proprietary technology and start working together to create a unified defense.

Image: National Security Agency/Center Security Service

October 18, 2011

Cell Phone Symposium @ Whittier Law School

Cell phones will be the focus of a Symposium on November 3, 2011 at Whittier Law School.  More information can be found here.

The Symposium is sponsored by Whittier Law School's Center for Intellectual Property Law and Law Review.  Topics include "the privacy, regulation, economics, and intellectual property issues surrounding smart phone technology."

I will be speaking on the issue of whether the police can constitutionally compel a person to provide a password or encryption key for cell phones.  This issue has been discussed previously on this blog.  If you are in California, please stop by and join the discussion.  CLE credits are also available.  

Here is the basis for my talk:

The Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide a testimonial communication that is incriminating in nature.  Most verbal statements that reveal the contents of a person’s mind are considered to be testimonial. 

Continue reading "Cell Phone Symposium @ Whittier Law School" »

Police GPS Action Rejected by Ohio Court

The state courts in Ohio have been at the forefront of protecting electronic data from police searches.  In 2009, for example, the Ohio Supreme Court set a significant precedent by holding that police could not search a cell phone incident to an arrest.  You can read my detailed take on that decision here.

Last month, an Ohio Appeals Court issued what could become a significant opinion on the issue of GPS tracking.  This is an issue soon to be decided by the U.S. Supreme Court.

The case is State v. Sullivan. In this case, officers were investigating a series of home break-ins.  Undercover officers placed a GPS tracking unit under the bumper of a suspect’s Honda Civic. No warrant was obtained. While following the movements of the car on a laptop, police learned that a home invasion had been committed in the vicinity where the car had been tracked.  The car was subsequently tracked until it arrived back at the defendant’s home.  Property taken during the home invasion was recovered from the Honda Civic.

Continue reading "Police GPS Action Rejected by Ohio Court " »

October 14, 2011

Reading the Judicial Tea Leaves

Tea_leaves128U.S. District Court Magistrate Judge Andrew Peck’s recent Law Technology News article, “Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?” endorsed technology-assisted document coding in electronic data discovery.

But other opinions suggest support for the process, also called "predictive coding." USDC Magistrate Judge John Facciola endorsed technology assisted document review in Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 F.R.D. 139, 148 (D.D.C. 2007) as did U.S.D.C Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008). While these jurists have expressed support for using technology assisted document review, they each caution that parties must be prepared to defend the particular implementation of these tools and processes. 

In LTN's "Reading the Predictive Coding Judicial Tea Leaves,"  I discuss that these cases (and others) provide an approach for ensuring its defensibility. Facciola raised the prospect of a Federal Rule of Evidence 702/Daubert standard for resolving defensibility challenges; Grimm and Peck have expressed different views regarding defensibility proof.

Regardless of the precise defensibility approach required by a court, a party using technology assisted document review should be prepared to answer three questions in the event of a later challenge:

1. Who will explain credibly to the court or adversary the process and results?

Continue reading "Reading the Judicial Tea Leaves" »

Managing in the Clouds

CloudsI recently published a white paper, “Law Firm Management in the Cloud: Leveling the Playing Field for Law Firms,” that is now is available (for free) on Rippe & Kingston’s website.

I started this project a few months ago with Rippe & Kingston while I was still with the Legal Technology Institute (I recently accepted the CIO position with Steptoe & Johnson). I polled many knowledgeable resources to write this paper in order to provide an independent and objective overview of cloud-based computing — including a sizeable list of cloud-based computing developers for the legal profession.

I know that many law firms are looking at the benefits of cloud computing, including my own. My goal was to dispel common myths as well as provide a straightforward explanation about using the cloud in a law firm, as I did in the June issue of LTN, in "Misconceptions 2.0" (requires LexisNexis account).


Sunday in D.C.: LitCon'11 kicks off ARMA

LitCon2011The International Legal Technology Association is again partnering with ARMA to offer the Legal Information Technology Conference 2011. (The ARMA acronym doesn't stand for anything anymore, but this is the group that focuses on information governance, née records management.)

kicks off ARMA's 56th annual meeting, with a daylong program Sunday at the Gaylord National Hotel & Conference Center near Washington, D.C. (Bring your sneakers, this hotel rivals its sister venue in Nashville, Tenn., for huge; at the end of each day, you'll feel like you ran a marathon.) LitCon'11 includes nine panels, ranging from "Knowledge Management & Universal Search" to "Records Management Judo" to "Attorney and Client Mobility -- Managing the Movement of Confidential Client Information In and Out of the Firm."

Continue reading "Sunday in D.C.: LitCon'11 kicks off ARMA" »

October 13, 2011

Predictive Coding: Cure or Stop Gap



Predictive coding created a stir in 2011 for its ability to reduce costs, cut the chase searching through ESI and judicial acceptance.  

We need this technology because document life-cycle management remains a messy business - how data is created, classified, used, stored, archived, and deleted. Additionally, a lack of clarity in laws and regulations has exacerbated it. Throwing technology at the problem is not necessarily the answer.

If companies would adopt strong information governance  policies and practices, the need for predictive coding would not be as compelling. New record management technology and practices at the front end of the EDRM will significantly reduce the need for fancy search technology at the back end. Perhaps predicitive coding will move more to the left of the EDRM.

Working against information governance is the observation that as storage capacity increases and becomes cheaper, the less desire there is to organize it. Additionally, record management is complicated by the fact that our work and personal life is slowly merging into one. 

The law of diminishing return states — the more ESI that is stored, the less value there is in it. This is played out everyday as we see terabytes of potentially relevant information filtered down to a few hundred pages. 

Predictive coding is simply stabilizing a chronic condition, not curing it. Our economy is all about information, yet we do a poor job managing it. Its time to put structure in unstructured data.


October 12, 2011

Digital Reef Debuts Free ECA Service

DigitalreefDigital Reef, which offers hosted e-discovery services, recently opened a cost-free early case assessment service at The new service lets users upload a data set, after which they are told its initial size, potential size after deduplication, size of data responsive to popular search terms, and number of files responsive to search terms, according to the site's Frequently Asked Questions page.

But there are limits. Data is stored for seven days, and then customers must either pay for online storage, pay to download the output, or let the data evaporate, the site FAQ explains. Read more at Law Technology News.

Image: Digital Reef

October 11, 2011

Feds Cite ECPA to Justify E-mail Snooping Without Warrant

SnoopThe Electronic Communications Privacy Act is again in the news as the The Wall Street Journal reports that the federal government used the act to justify the secret gathering of e-mails from WikiLeaks supporter Jacob Appelbaum.

Under the ECPA, law enforcement agencies can secretly gather a user's electronic records from internet service providers (ISPs) without first obtaining getting a search warrant or even a showing of probable cause.

In this case the ISPs, Google and, brought a challenge in court to let the user at least be informed of the collection of his electronic data. "Sonic said it fought the government's order and lost, and was forced to turn over information," and both ISPs "pressed for the right to inform Mr. Appelbaum of the secret court orders," WSJ reported.

The article notes that several court decisions that have challenged the law, and questioned whether it violates the Fourth Amendment.


Command Culture Must Collapse

Hegarty_michael400[1] Warm thanks to the Colorado Association of Litigation Support Professionals for the invitation to participate in its fifth annual E-Discovery Summit — especially leaders Shari Bjorkquist Rich and Jeff Staal. It was a fascinating day, here's a link to my report from today's Law Technology News website. 

In addition to the presentations from U.S. District Court (Colorado) Magistrate Judge Michael Hegarty, left, and Quarles & Brady partner William Hamilton (below right), that are detailed in the article, other panelists included Cheryl Proctor, director of client services at Baker Donelson Bearman Caldwell & Berkowitz; and Patrick O'Rourke, of the Office of the University Counsel at the University of Colorado. Proctor detailed how her firm handles EDD decisions; O'Rourke offered tips to using technology to enhance jury presentations. 

Hamilton color 117x143 Hamilton did double duty, subbing for Perkins Coie's Debra Bernard who had a last minute conflict and could not present her scheduled discussion of the 7th Circuit EDD pilot program -- a closely watched experiment that is generating raves, and is expected to be cloned in other jurisdictions. Hamilton is the new dean of Bryan University's online program that offers a graduate certificate in e-discovery, and has been chair of the advisory board of the Association of Certified E-Discovery Specialists.

I offered an overview of some of the key 2011 legal technology issues, including the controversy over e-discovery certification and the failure of law schools to educate students on law practice management and EDD; the EDD ramifications of the "consumerization" of technology (read: Apple) within legal organizations; associate insider trading; and more.

Images: Hegarty (Monica Bay), Hamilton (Courtesy of Quarles & Brady).

So... Apple released iPhone 4S

Ip42 So . . .  Apple released a new iPhone.

The most interesting aspect of the Apple story is the measures it takes to protect its intellectual property. In an effort to protect the new iPhone, Apple may have run up against the Fourth Amendment.

CNET reported  that Apple security personnel enlisted the help of the San Francisco police in locating a lost iPhone prototype. The iPhone was allegedly lost by an Apple employee at a bar in late July. The iPhone was tracked to a home. Apple security personnel and the police officers then went to the home. With the police standing by, the Apple security personnel searched the home, as well as a car and computer. 

The homeowner told reporters that the people who came to his house looking for the phone identified themselves as police (not Apple employees). He claimed that he never would have allowed Apple employees to conduct a searched.

Continue reading "So... Apple released iPhone 4S" »

CRAC to Consider Preservation Rule in November

Andrea Kuperman, chief counsel of the  Civil Rules Advisory Committee, has advised that the November Civil Rules Committee meeting will include discussion of the discovery subcommittee's examination of whether to recommend a rulemaking response to concerns about preservation/sanctions for spoliation/electronic discovery.

Materials considered by the subcommittee will be made a part of the agenda materials for that meeting. Because there is a significant amount of material, all of the materials that the subcommittee has considered are currently available on the Federal Rulemaking website. The website will be updated if additional submissions are received.

Here are links to the documents currently on the website:

Materials Produced by the Advisory Committee (pdf)
Proposed Agenda
Notes from the Mini-Conference on Preservation and Sanctions
Preservation/Sanctions Issues
Elements of a Preservation Rule
Case Law on Elements of a Potential Preservation Rule

Comments Submitted (pdf)
Department of Justice
Center for Constitutional Litigation
Lawyers for Civil Justice
Thomas Y. Allman
New York Bar Association
Thomas Y. Allman, Jason R. Baron, and Maura R. Grossman
Kroll Ontrack

Empirical Data or Research (pdf)
RAND Corporation – Costs of Pre-Trial Discovery of Electronically Stored Information
Civil Justice Reform Group – Preliminary Report on the Preservation Costs Survey of Major Companies
The Sedona Conference – Membership Survey on Preservation and Sanctions
Federal Judicial Center – Motions for Sanctions Based Upon Spoliation of Evidence in Civil Cases

October 05, 2011

E-Discovery & Evidence Training Institute

Here's information about our upcoming conference:

Law Partner Publishing, the State Bar of Arizona Trial Practice section, and the Center for Law Science and Technology (which is part of the Sandra Day O'Connor ASU College of Law) will present its annual Electronic Discovery and Evidence Training Institute, Dec. 1-2, at Arizona State University, Mercado Center, in Phoenix.

The conference offers practical and structured technology and legal training from top experts, with 18 hours of on-demand instruction. Judges will provide their "views from the bench," clients will discuss their EDD concerns, and the event includes a mock 26(f) meet and confer session. Service providers will have an opportunity to respond to a mock EDD service proposal.

Among the faculty will be Vice Chief Justice Andrew Hurwitz, of the Arizona Supreme Court, and George Paul, of Lewis and Roca.

411: LawCLECenter ( .

October 04, 2011

Judge Peck: Green Light for Computer-Aided Coding

PeckIn the October issue of Law Technology News magazine, New York-based U.S. Magistrate Judge Andrew Peck argues that the time has come for computer-assisted coding — a.k.a. predictive coding — to be embraced by litigators and the judiciary. 

In "Search, Forward," Peck chronicles the evolution of search, concluding lawyers' fears of judicial rebuffs or potential Daubert hearings "seem largely misplaced." When using computer-assisted coding, he suggests that litigators should be prepared to explain "what was done and why that produced defensible results."  

"Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help 'secure the just, speedy, and inexpensive' (Fed. R. Civ. P. 1) determination of cases in our e-discovery world."

Image: Russ Curtis

Thomas Allman: Discovery Subcommittee Report

Allman Thomas Allman offers a summary of a recent meeting of the Discovery Subcommittee (of the Committee on Rules and Practice and Procedure of the Judicial Conference of the United States), which has been charged with evaluating and reporting on the "appropriateness of rulemaking on the subject of preservation and spoiliation."

The subcommittee met on Sept. 9, and the agenda included discussion of over-preservation, inconsistent sanctions, ineffective Rule 26(f) conferences, technology issues (including social media and cloud computing), and more. 

Allman's report: Download 2011SummaryofMeeting(REVII)

"Civil Rules Discovery Subcomittee Mini-Conference at DFW Airport, Sept. 9, 2011: 'Preservation, Search Technology & Rulemaking.' " Download 2011FINALPreservationandTechnology(Sept7)

Watch video with Allman discussing the 2010 Duke Law School conference (Judicial Conference Advisory Committee on Civil Rules)

Related stories

• "Committee Ponders EDD Changes to Federal Rules of Civil Procedure," by Evan Koblentz, 7/22/11. 

•  "FRCP Rules Change Update," by Evan Koblentz, 9/15/11. 

Up Close: Thomas Allman, LTN, April 2008.  

Georgetown Gears Up

Earlybird Lawrence Center checks in to remind us that the early-bird rate for the upcoming Georgetown Law CLE Advanced eDiscovery Institute expires Oct. 17 ($100 discount).  The conference will be held November 17-18 at The Ritz-Carlton, Pentagon City-Arlington, Va.

Chief Magistrate Judge for the U.S. District Court, District of Maryland Paul Grimm will deliver the keynote. He's one of at least 15 judges who are scheduled to speak at the annual "judge-fest" — others include high-visibility U.S. District Court jurists Lee Rosenthal, Shira Scheindlin John Facciola, James Francis, Andrew Peck, Nan Nolan, David Waxse, Elizabeth Laporte.

Francis will moderate a session on "Statistics and Sampling for Lawyers: How to Apply a Well-Accepted Methodology in the World of eDiscovery; Scheindlin is a panel on "Pragmatic Practices for Resolving eDiscovery Cross-Border Conundrums." Other conference topics range from the opening session, "E-Discovery Case Law Update," to corporate approaches to electronic information management; "The Business of e-Discovery," state approaches, social media, cloud computing, project management, and so much more.

LTN board member and frequent contributor Patrick Oot will moderate a panel on "E-Discovery in Investigations and Litigation Before Federal Agencies," (he is general counsel with The Electronic Discovery Institute and special counsel for e-discovery with the U.S. Securities & Exchange Commission).

If last year was any predictor, this is a "must-attend" conference. I will be there, hope to see you!

Brochure; website. Phone: (800) 241-3333.


Craig Ball: Dancing in the Dark

Dancing Resolving form disputes early can avoid litigation missteps, says Austin-based trial lawyer and forensics/e-discovery special master Craig Ball, in the October issue of Law Technology News.

He offers suggestions on how the parties -- and the court -- can come to agreements on document productions and identify problems early, before they become costly. 

Image: Getty

October 03, 2011

HP-Autonomy Deal is Done!

Just in -- HP got the shares committed that it needs to officially own Autonomy. Be sure to read my update about this merger from last week. More information will come soon!

"HP today announced that it has acquired control of Autonomy Corporation," the Palo Alto, Calif. information technology giant stated. "Holders of 213,421,299 Autonomy shares have accepted HP’s previously announced offer to purchase the entire share capital of Autonomy at a price of £25.50 per share in cash... As such, all conditions relating to the offer have now been satisfied, allowing HP to acquire control of Autonomy."

HP's statement continued, "As previously announced, Autonomy will operate as a separate business unit. Dr. Mike Lynch, the founder and chief executive officer of Autonomy, will continue to lead the Autonomy business and will report to [new HP CEO Meg] Whitman.

HP said its offer to purchase the remaining Autonomy shares is open.

Google Doesn’t Want To Be Googled

Google On September 27, 2010, Google filed a motion to intervene in the U.S. Justice Department’s antitrust enforcement action against AT&T. Google seeks to intervene to attain greater protection of its documents under a protective order already set up in the case.  See the e-Discovery Team blog on this Google Doesn’t Want Its Litigation Disclosures Googled.  Also see: Google Wants Business Data Protected In AT&T Antitrust Case by Mike Scarcella in the Blog of LegalTimes.

This follows a theme featured in my blog the last few weeks as written by Anonymous. See: An Open Letter to the Judiciary – Can We Talk? (Part Two). My Anonymous Guest Blogger urges judges to routinely enter umbrella confidentiality protective orders during the discovery phase of the case. It is a good argument that I suggest you check out.

Image: Google

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