Google Apps Vault Ready for E-Discovery

Google Apps Vault brings e-discovery features to Google Apps for Business, offering litigation holds of IM and email, retention policies, and data archiving, reports Evan Koblentz.

The Mountain View, Calif.-based search giant's head of e-discovery, Jack Halprin, claims the Vault offers a more efficient archive: "Our approach is fundamentally different. We are the only archive provider that sits natively on top of and as part of the application itself."

While the Vault now holds "dates, labels, recipients, senders, and terms of Gmail and recorded instant messages," future versions could work with websites, unrecorded instant messages, and Google Docs.

Read the full article.

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Paper Still a Factor in Discovery

With all the talk about computer-assisted review, I thought it would be refreshing to step back and look at the state of paper. It remains an important part of discovery, says Tom Pallidino, president of NightOwl, a leading Minneapolis based e-discovery service provider that started exclusively in paper back in 1991.

Although scanning paper has shrunk considerably, it has stabilized and is holding strong at about 15% of its e-discovery business, he explains.

Additionally, almost half of the paper discovery revenue comes from blowbacks — the printing of electronic document for review. Nearly 25% of scanning is now in color and continues to rise due to new inexpensive color printers.

Franks Backs EDD Rules Change

Rep. Trent Franks, chair of the House Judiciary Committee's Subcommittee on the Constitution, submitted the attached letter to judges Kravitz and Campbell just prior to the Ann Arbor meeting of the Rules Committee last Thursday and Friday. Notably, the subcommittee lent some support to the commencement-as-trigger proposal I made in Dallas and in a follow-up submission to the committee (available at http://1.usa.gov/srsE9P), and which professor William Hubbard also made. (Copy of Franks letter Download 2012.03.21 Franks Ltr to Kravitz and Campbell attached.)

Highlights:

"First, while the explosion of electronic discovery has dramatically changed the discovery process, the fundamental purpose of discovery — namely, 'the gathering of material information' — remains unchanged. Thus, one response would be to limit the scope of discovery to information that is relevant and material to the claims and defenses in each case.

E-Discovery and Digital Evidence at ASU Law School

It is exciting for me to announce the eDiscovery and Digital Evidence Conference to be held May 23-25 at the ASU College of Law in sunny Tempe, Ariz.

Among the judges who will be instructing include the Hon. John M. Facciola, D.C. Federal District Court, Judge Craig B. Shaffer, Colorado Federal District Court, and Vice-Chief Justice Andrew Hurwitz from the Arizona Supreme Court. Among the noted instructors are Michael Arkfeld, Cecil Lynn, Robert Singleton, Browning Marean, and Ken Withers.

The conference is different because it is divided into three days, depending on your e-discovery needs, and you can choose 1, 2, or all three days. The three days include, Day 1 — "Technological Issues and E-Discovery," Day 2 — "ESI Discovery — Principles, Strategies and Tactics," and Day 3 — "The Cutting-Edge Practical Realities of E-Discovery."

For further information please visit LawCLECenter (www.lawclecenter.com) or download the brochure.

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Da Silva Moore Fury

I'm late to the party, because I actually took a real vacation to Florida for spring training, but I came back to find that the blogosphere is atwitter with reactions to the Da Silva Moore v. Publicis Groupe & MSL Group plaintiffs' comments about United States District Court (New York) Magistrate Judge Andrew Peck in the plaintiff's March 19 reply brief filed by Sanford Wittels & Hesler. The matter is now pending before U.S.D.C. Judge Andrew Carter. (Peck won the 2011 Law Technology News Innovation Award for Champion of Technology for his work educating the legal community about litigation technology).

* To first bring you up to speed, here's Peck's Feb. 24 opinion. Here's K&L Gates' March 21 report on the plaintiff's reply brief, which is now pending before District Court Judge Andrew Carter.

Here are some of the most vibrant discussions:

* Brandon D. Hollinder: eDiscovery News' "Update - Plaintiffs Attack Judge Peck's Da Silva Moore Predictive Coding Order Again." An excerpt: "From the outset, there was a noticeable undertone of animosity towards Judge Peck running throughout the Reply. Plaintiffs took the opportunity to play up the connection between Judge Peck and defense counsel Ralph Losey (who is also regarded as a thought leader in the e-discovery industry and is the author of a widely disseminated blog among other things), and to a lesser extent Recommind, the software vendor whose computer-assisted review platform will potentially be used in this matter.

FTI Surveys In-House Counsel on Streamlining EDD

FTI has released a new study — "Advice From Counsel: an Inside Look at Streamlining E-Discovery Programs." The majority of respondents worked for Fortune 1000 companies with e-discovery responsibilities. Some survey highlights:

1. the major challenge for companies is gaining control of the e-discovery process and budget predictability;

2. improving the e-discovery process and having a single point of contact is important to companies. To that end, companies are narrowing the field of outsourcing providers;

E-Discovery, Family Style

Hanging out in Florida for Spring Training?  Ralph Losey  -- one of EDD Update's authors -- will present a live EDD webinar Tuesday [March 27] from 2 p.m. to 4 p.m. (Eastern) from the Citrus Club. He'll be joined by his two children, Adam Losey and Catherine Losey, who are both EDD lawyers in Orlando.

The webinar will present an overview of e-discovery and its effect on your practice today, says Robert Childress. Presented by Wave Software, and sponsored by D4, it will be moderated by Shawnna Childress, founder of Women in eDiscovery. Losey a partner at Jackson Lewis, and is the author of the e-Discovery Team blog.

The Citrus Club is located at 255 South Orange Ave. #1800, Orlando 32801. Attendees can choose between the live in-person program or live web program.

Registration info here.

Image: Ralph Losey

Notes on Arkfeld's Online EDD Course

I recently enrolled in Michael Arkfeld's Online E-Discovery and Digital Evidence Course to bone up on electronic data discovery. (He is a long-time member of LTN's Editorial Advisory Board).

Here are a few takeaways from the last online session:

• "They didn't create electronically stored information for litigation."

• An attorney told his adversary that the ESI requested was not reasonably accessible because it numbered into well over 400,000 documents. A thing of the past, right? The adversary backed off.

The Technology Is Not the Issue, It's How You Use It

The Da Silva Moore case has generated a lot of e-discovery buzz about the U.S. District Court for the Southern District of New York being the first court to approve technology-assisted review — assuming plaintiffs' rule 72(a) objections are denied.

However, since both parties agreed to use TAR, this case was never about whether or not the technology should be used, it was about protocols. TAR is being used successfully in thousands of cases around the world without judicial intervention; saving parties millions in review cost and time.

So what's the fuss?

Tweeting Jurors Causing Judicial Headaches

Courts are struggling with rising social media misconduct by jurors, posing a threat to the fundamental guarantee of a fair trial.

Last November, the Federal Judicial Center published a report on Jurors' Use of Social Media During Trials and Deliberations, which concluded that despite various prevention efforts, jurors continue to use social media.

The Hon. Amy J. St. Eve, U.S. District Court Judge for the Northern District of Illinois recently conducted her own informal poll on this topic which was published just last week in the Duke Law & Technology Review called Ensuring An Impartial Jury In The Age Of Social Media. Her conclusion was that strong jury instructions on social media use does work.

3rd Circuit Issues Race Tires Decision on Taxing EDD Costs

The 3rd U.S. Circuit Court of Appeals issued its long-awaited decision in Race Tires America, Inc. v. Hoosier Racing Tire Corp on March 16, 2011. The court took a narrow view of whether all the charges imposed by electronic discovery vendors to produce ESI can be taxed against the losing party per the cost-taxation statute, 28 U.S.C. 1920(4).

In short, the court held that only costs of making copies were taxable and that many costs associated with other tasks performed by the e-discovery vendor were not recoverable under the statute.

The court acknowledges that there may be good reasons to award e-discovery costs to a prevailing party; however, the courts lack authority to do so under the cost-taxation statute.

District Judge Will Hear Objections to Peck's Decision

As discussed in a previous EDD Update — Ramifications of Judge Peck's New Opinion — U.S. District Judge Andrew L. Carter will have the final say on Peck's e-discovery ruling in the Da Silva Moore case.

Carter just granted plaintiffs' request to file a brief documenting their Rule 72(a) objections based on Peck using outside sources not in evidence for his ruling on predictive coding.

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LexisNexis Updates Law PreDiscovery, Early Data Analyzer

LexisNexis announced updates to Law PreDiscovery 6.1 and Early Data Analyzer 1.1, its e-discovery processing and early case assessment software, reports Evan Koblentz.

Among PreDiscovery's new features are de-duplication from multiple cases simultaneously and the ability to "import/export load files based on the EDRM-XML 2.0 specification." Early Data Analyzer adds the use of optical character recognition to convert document images into editable, searchable text and metadata searches that use multiple data ranges, Koblentz writes.

Next up for Lexis is a hybrid "to essentially take a lot of the batch-processed features from Law, put those into Early Data Analyzer, and then web-enable it," according to Joshua Rosenberg, the company's senior director of strategy for litigation tools in Austin.

Image courtesy of LexisNexis

The Future of the Review Attorney

With the advent of computer-assisted review, it is difficult to know how the review industry will ultimately be impacted. Certainly, we can infer that the days of 100-attorney reviews that go on for months on end are coming to a conclusion.

Does this increased efficiency bode that more "microwave" reviews will take place, perhaps with clients electing to review sets of documents that would not have previously been reviewed due to higher cost?

What will become of the current field of attorneys that have become dependent on review projects to sustain their legal careers while they await more permanent employment? Will large firms continue to sustain massive contract review staffs, or will review specialists develop niche areas of skills, such as securities, or patent law?

Clearwell Integration in Sight for Data Insight 3.0

Data Insight 3.0, the latest version of Symantec's information governance software, allows the data's custodians to manage it, and also "lays the groundwork" for integration with Clearwell's e-discovery offerings, reports Evan Koblentz.

"Where Data Insight is really focused is on who owns the data, where the data is being used, and how do we protect that data," says Don Angspatt, Symantec's VP of product management.

As Angspatt explains, "In Data Insight 3.0 we don't do integration with Clearwell yet, but that's the very next thing on the road map."

Image courtesy of Symantec

7th Circuit Decision on Warrantless Cell Phone Searches

Judge Richard Posner of the 7th Circuit wrote a very interesting opinion recently addressing the ability of law enforcement to search a cell phone without a warrant. The case is United States v. Abel Flores-Lopez.

Posner noted that "Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a "computer" or not) can be searched without a warrant — for a modern cell phone is a computer."

In this case, the defendant was alleged to be a drug dealer. The defendant had driven a truck containing drugs to the location where he was arrested. After his arrest, the police seized a cell phone from his person and two other cell phones from the truck. Officers searched each cell phone for its telephone number and used that information to subpoena the call records from the service provider.

'Zubulake' Gains More Traction in New York Courts

New York's Appellate Division, 1st Department, again embraced the standards set out in Zubulake in its second major ruling in a month on e-discovery, write Marshall H. Fishman and Dana L. Post in "N.Y. Appellate Division Continues to Press 'Zubulake' EDD Standard."

In GreenPoint, the appeals court held that the producing party should "bear the cost of the searching for, retrieving, and producing documents, including electronically stored information." But it additionally held that lower courts may permit cost-shifting according to the seven factors stated in Zubulake.

The Greenpoint ruling -- in addition to Voom -- would appear to add weight to arguments that Federal standards should govern when it comes to unresolved e-discovery issues under New York law.

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Looking for 'Friends' You Can Count On?

People become friends for all kinds of reasons. Jonathan Ezor looks into the ethics of attorneys "friending" witnesses or opposing parties via social media such as Facebook to gain access to evidence in "False Friends: the Ethical Limits of Discovery via Social Media."

Ezor further investigates in what situations might evidence gathered through "false friending" be admissable -- even if the lawyer violated ethical rules. For private attorneys, state law could permit it.

Is it ever justifiable when dealing with social media to search beyond posts that are publicly available?

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Eastern District of Texas Model Order for Patent EDD

Today's Law Technology News article, "Eastern District of Texas Issues Model Order for Patent E-Discovery," highlights some of the provisions of the district's new e-discovery order, crafted from the Federal Circuit's model e-discovery order (see the LTN article "The Elephant in the Patent Courtroom").

The model order also has some similarity to elements of Delaware's Default Standard for Discovery (see the LTN article "Delaware's Default E-Discovery Developments").

Among the most useful provisions of the district's order is that limitations on email production apply to the mandatory disclosures required by the local Patent Rules. According to the Eastern District website the model e-discovery order is effective immediately, but public comments will be accepted until March 23, 2012.

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Recommind Launches Predictive Coding Training

Recommind today introduced its  Predictive Coding Training Program to formally educate legal practitioners and litigation support professionals in its own version of the automated review technology. The program, to be launched in April, will consist of online and in-person training. Successful participants will receive certification, the company says. 

Law firm Morgan Lewis has partnered with Recommind in the "educational campaign" in technology-assisted review, according to partner Tess Blair. The website mentions a CLE Webinar featuring Blair on March 15, "Predictive Coding: Separating Myth From Reality," hosted on Virtual LegalTech.

Recommind plans to extend the program into the U.K. and Europe later this year, as well as Asia "on an as-needed basis."

The press release capitalizes on U.S. District Court Magistrate Judge Andrew Peck's recent opinion allowing the technology in Da Silva Moore, using language such as "landmark," "officially endorsed," and "groundbreaking." (Download DaSilvaMoore 2-24-12 Opinion.)

Read full press release here.

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Unified Information Governance and Discovery Framework

There has been a lot of talk about the importance of information governance including the framework developed by EDRM. Recently, another approach was developed by eThemis called the Unified Information Governance and Discovery Framework (UIGDF). It was designed to address how data flows within the corporation from the vantage point of the records life cycle.

They identified five key functional areas:

1. Information governance forces framework;

2. Operations management;

3. Preserve;

4. Selection; and

5. Produce/retire.

The UIGDF is an attempt to establish a proactive framework that organizations can leverage, regardless of industry vertical, to effectively manage the massive volumes of data in their possession.

The devil is always in the details and what I like about this approach, is that they have actually developed a granular workflow for implementing IG policy and process.

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E-Discovery Can Be Criminal

When it comes to e-discovery, the criminal division has "come a long way from the late 1990s to mid-2000s — when the electronics working group simply focused on how to scan paper documents," reported LTN's Evan Koblentz on the release of the Recommendations for ESI Discovery in Federal Criminal Cases by the Joint Electronic Technology Working Group.

Now, U.S. District Judge Shira Scheindlin weighs in, along with technology consultant Jeffrey Rabkin, with a careful consideration of the "core concepts" of the recommendations, what controversies they might raise in practice, as well as what questions the working group needs to address in future additions to the guidelines.

Core concept: the need for a meet and confer, much like that outlined in Rule 26(f) of the FRCP.

Controversy: a clause that states in response to ESI volume "the parties increasingly will employ software tools for discovery review," which could be read as an endorsement of technology-assisted review in criminal cases.

The future: How exactly do we define the government's duty to preserve in a potential criminal case? The defense's?

Read the New York Law Journal article, "Core Concepts of New ESI Guidelines for Criminal Law."

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