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April 2012

April 30, 2012

Applied Discovery Adds to Its Talent Pool

Clark_kelli_128Kelli Clark has been named vice president of solutions and services at Applied Discovery, a provider of e-discovery services and software based in Bellevue, Wash.

"The 'new' Applied Discovery has a three-pronged approach to any project based on technology, data flow, and process workflow. We offer a wide technology palette that includes our proprietary solutions as well as best-of-breed, off-the-shelf software," Clark said.

Read the full report.

Image courtesy of Applied Discovery.

April 27, 2012

Open Questions About Carter's Upholding of Peck

Hello world! We're doing an unscientific poll about your reaction to Judge Carter's decision to uphold Judge Peck's approval of predictive coding software. Some important questions are below. If you have opinions, then please email me (ekoblentz-at-alm-dot-com) -- especially if you're a CIO, lit support specialist, or service provider. (Note: your emails must identify who you are, but if you need to remain anonymous in publication, then indicate that.)

  • Do you expect the decision to impact clients' interest in using predictive coding? If so, how?
  • Companies that makes predictive coding software are now likely to say, "We told you so"; what pitfalls should clients beware?

Continue reading "Open Questions About Carter's Upholding of Peck" »

EDD & Digital Evidence Conference

6a00d8345280a669e201630363f4d8970d-120wiJust a reminder that if you register by April 30th for our upcoming EDD conference you will receive a free copy of Arkfeld's eDiscovery publications.

This is an opportunity to hear from noted educators at the eDiscovery and Digital Evidence Conference and Symposium to be held on May 23, 24, and 25 at the Sandra Day O'Connor College of Law at Arizona State University in Tempe, Arizona.

Register by April 30 and you will receive your complete set of Arkfeld on Electronic Discovery and Evidence publications (a $279 value) along with conference speaker materials.

This conference is noted for its "practical, structured educational approach" to e-discovery, with noted educators including Judge John Facciola and Judge Craig Shaffer, and many other top industry professionals.

As one past attendee noted,"This has been the first 'e-discovery' seminar that I consider to have been worth the time and travel." -- Bruce Freeman, Conners & Winters

Click here for more information

Image by Law Technology News

April 26, 2012

Judge Carter OKs Peck's Predictive Coding Decision

Word is spreading fast that District Court Judge Andrew Carter has approved Magistrate Judge Andrew Peck's order of the use of predictive coding software in Monique da Silva Moore, et al v. Publicis Group SA, et al. Read all about it in an article on the Law Technology News homepage and look for further updates.

April 25, 2012

FCPA & Dodd-Frank Conference

ILDD Globe
The International Law Discovery & Disclosure Group (ILDD) will be hosting its annual FCPA & Dodd-Frank conference in London on June 7-8, 2012.

Join London's leading publicly traded organizations, regulatory authorities, and law firms for a day and a half of thought leadership and workshop sessions around the U.S. Foreign Corrupt Practices Act and Dodd-Frank Act related to internal and competitor whistleblowing.

Attendees include business finance, legal, and compliance employees, regulatory officials, and outside lawyers that service individuals and organizations worldwide. Space is limited and registration is required.

Contributors to this event include: Skadden Arps, DLA Piper, Latham & Watkins, Hasbro, FMC Technologies, HSNO, FD Azar, and many others.

Contributing media partners: Association of Certified Fraud Examiners (ACFE), Association of Certified Anti-Money Laundering Specialists (ACAMS), Carmel Valley E-Discovery Retreat.

Attendance is fully supported by ILDD sponsors and there's never a fee to attend an ILDD event.

Image courtesy of ILDD

April 24, 2012

Va. Judge Orders Predictive Coding

In what could be a milestone moment, a state judge in Virginia yesterday ordered that defendants can use predictive coding, despite plaintiff's objections that the technology is not as effective as purely human review.

In Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, Loudoun County Circuit Judge James Chamblin wrote:

Judge"Having heard argument with regard to the Motion of Landow Aviation ... it is hereby ordered Defendants shall be allowed to proceed with the use of predictive coding for purposes of processing and production of electronically stored information."

Chamblin, in allowing 60 days for processing with "production to follow as soon as practicable and in no more than 60 days," continued:

"This is without prejudice to a receiving party raising with the court an issue as to the completeness of the contents of the production or the ongoing use of predictive coding."

There are many questions to ponder. Will a county court order have any impact on state or federal courts? What about impacting the current predictive coding controversies in the da Silva Moore and Kleen Products cases? Which software companies are involved? Can the plaintiffs take any further appeal action?

Update, 6:20 PM: The full story is now posted on Law Technology News.

Image by Clipart.com

Ohio Court Addresses 4th Amendment, Text Messages

20308702.thmThe question of who can challenge a search of cell phone records was before an Ohio court on Aug. 13. The case, from the Court of Appeals of Ohio, Sixth District, is State v. Young

This case started with a missing 17-year-old girl. The police began to suspect that the defendant knew where she was. So they obtained his cell phone records from Verizon Wireless, by submitting a single page Emergency Request Form. The police also obtained the 17-year-old girl's cell phone records with the consent of her mother.

Notably, the records acquired contained not only the numbers that had been called, but also the content of some text messages that had been exchanged.

The 17-year-old was eventually found living — by her own choice — in an apartment rented by the defendant.

Continue reading "Ohio Court Addresses 4th Amendment, Text Messages" »

The Elephant In The Room

RalphandelephantThe Rand Corp. has conducted an in-depth study and produced a report on the high costs of e-discovery review — concluding that it takes 73 cents out of each e-discovery dollar. One of the more provocative comments in the report concerned how certain law firms have a financial interest in the status quo of over-review of electronically stored information.

I call that the elephant in the room, which I happened to have a chance to be photographed with this weekend! For more on the interesting Rand report, check out my blog post, “Where The Money Goes” -- a Report by the Rand Corporation.

Image: Courtesy of Rollins College.

April 19, 2012

Equivio Joins Relativity In-House at Reed Smith

Equivio_logo_400International law firm Reed Smith, which recently deployed kCura's web-based review tool Relativity to aid the firm and its growing records and e-discovery ("RED") team, is piling up its e-discovery platforms as it adds on Equivio Zoom. Zoom's email threading and near duping caught Reed Smith's attention -- its predictive coding capabilities and easy integration with Relativity closed the deal.

Get the full report here.

Image courtesy of Equivio

Syngence Hires New VP of Client Services

Doss_tammy400Syngence Software, a provider of search and clustering technology for e-discovery management -- which recently tapped LTN's own Joseph Howie -- is adding to its executive hires, reports Brendan McKenna. Tammy Doss has joined the Laguna Niguel, Calif.-based company as vice president of client services.

Read the full story on LTN online.

Image courtesy of Syngence

April 17, 2012

Speaking of 'Da Silva Moore' — Recusal?

Peck_andrew2_400"The e-discovery dispute in Monique da Silva Moore, et al. v. Publicis Group SA, et al. (Case No. 11-CV-1279), in the U.S. District Court for the Southern District of New York, took one step closer to a reality show on April 13, when plaintiffs filed a formal motion to recuse or disqualify Magistrate Judge Andrew Peck," writes Sean Doherty.

Read the full article, "E-Discovery Dispute Yields Formal Recusal Request in 'Da Silva Moore,'" on LTN online.

Image by Monica Bay

Predictive Coding Watch: ‘Kleen Products’ in Illinois

Speed_checkMeanwhile, back at the ranch ... With all eyes on United States District Court  Magistrate Judge Andrew Peck's orders involving "computer-assisted review" and plaintiffs' challenges in Da Silva Moore in the Southern District of New York, another decision weighing the automated review technology, Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al., is quietly playing itself out in the Northern District of Illinois.

As related in a post by Matthew Nelson, senior e-discovery counsel at Symantec, on the e-discovery 2.0 blog, this time out it's the plaintiffs challenging the defendants' discovery methods because they didn't use predictive coding. In a federal antitrust case before Magistrate Judge Nan Nolan, the plaintiffs attorneys are requesting that the defendants redo production. As Nelson describes it the plaintiffs' argument appears to be "that defendants should have used predictive coding to avoid the limitations of keyword search tools." 

Symantec owns Clearwell Systems, and its e-discovery software is being used by at least one of the defendants, according to the transcripts of the first evidentiary hearing in February. With review 99% complete and more than a million documents already produced, Nelson (remember, he's not exactly an disinterested party here) questions the timing of the plaintiffs challenge.

Is this merely a bid by plaintiffs to have the other side pay for the plaintiffs' culling and filtering? With a second hearing completed March 28 and a third day of hearings scheduled, Da Silva Moore isn't the only show running.

For more on the two cases, check out the eDiscovery Journal and the Document Review MD Blog.

Image by Clipart.com

April 16, 2012

Updates on 2011 TREC Results, EDI Project

A pair of updates came to light recently about e-discovery research projects from the Text Retrieval Conference and the Electronic Discovery Institute.

Official results from the 2011 TREC Legal Track were scheduled for public release on March 15. "We've been promising it in the next week or two for the last four or five weeks,"  Legal Track coordinator and University of Waterloo professor Gordon Cormack told me today. Asked if the overview will be published before April is through, "I sincerely hope so," he said.

Unofficial results, dated Oct. 24, 2011, are already circulating but are not endorsed by TREC. I viewed the document while reporting my Dec. 19, 2011, story, "E-Discovery Pitches Meet Sabermetrics." Today, I was informed that the same document found its way into a Da Silva Moore filing. [Update, April 17 -- the TREC document is cited in paragraph 14 here, thanks to Orange Legal Technologies' web guru Rob Robinson.]

At the Electronic Discovery Institute, organizer Patrick Oot is developing a research project sponsored by Oracle. "We will be making our next announcement in about a week or so. We have secured two chief scientists. We will be releasing the protocol for comment to the participants on June 1," Oot said last Friday.

Separately, a startup called BeyondRecognition is doing an interesting project related to TREC's 2008 results. Read the full article, "BeyondRecognition Looks to Improve OCR for Legal Field," on Law Technology News online.

April 15, 2012

Trapped In an Hourglass!

HourglassPart Two of my latest blog on Proportionality has now been published.  It is all about timing and proportionality.  In my opinion, timing is everything, in law and in life.  We are all trapped in an hour-glass. There is no getting out!  (Or is there? You will have to see the blog metadata to find out.)

The conclusion to my two-part blog also includes a useful laundry list of case citations on proportionality. Not only that, but I include the full text of the Patent Bar's Model Order on e-discovery and some commentary on it. I like it, but it needs improvement to escape the Go Fish trap of blind guesswork. Rule One is not just about speed and efficiency. Justice is the true purpose of legal search, and that requires a just-right balance between burden and benefit.

Image: clipart.com

April 13, 2012

Albert Barsochinni Bound for NightOwl

Barsocchini_albert400Albert Barsocchini, a member of LTN's editorial advisory board and co-author of LTN's EDD Update blog, is joining Minneapolis-based NightOwl Document Management Services on Monday as director of strategic consulting services and will oversee the launch of its professional consulting services group, reports Monica Bay.

"Al brings to NightOwl a deep understanding of the electronic discovery and information governance issues that corporations and law firms need to address." says St. Paul, Minn., consultant George Socha, co-prinicipal of the Electronic Discovery Reference Model. Barsochinni will remain in his office in San Francisco's financial district and serve the Twin Cities company from afar.

Photo courtesy of Albert Barsochinni

April 11, 2012

Act Two: Graham Smith & William Bice

LTN12-4In LTN's April cover story, we profile two entrepreneurs who accomplished the dream of 99% of legal technology vendors: to create a product and/or company that caught the eye of one of the industry giants, and to see it for a lot of money. In most cases, the principals cash the check and head for exotic locations.

But at LegalTech 2012, two men who hit the jackpot decided they weren't done with our community. William Bice, founder of ProLaw practices management software, and Graham Smith, founder of LiveNote litigation support software, came back for "act two" after selling to Thomson Reuters (then, Thomson West). Both launched new web-based products that compete with their original offerings -- Bice's LiquidPractice (and a second product, Exemplify, that is a document creation and comparison tool for transaction lawyers), and Smith's Opus Magnum, with integrates with other EDD software and helps uses develop their cases after they have processed their data collections.

Will they triumph twice? Check it out here.

 

11th Circuit on Fifth Amendment & Encryption

Keys_for_sale400Joshua Engel looks at last month's decision by the 11th U.S. Circuit Court of Appeals, United States v. John Doe, for guidance on whether Fifth Amendment privilege guards against the disclosure of passwords and encryption keys by witnesses and suspects.

The 11th Circuit concluded the Fifth Amendment does apply because providing a key or password amounts to an admission the suspect possessed or could access the information in question — child pornography in this case — which amounts to self-incrimination.

Engel identifies two competing doctrines in play in deciding whether Fifth Amendment protections apply, the "act of production" doctrine and the "foregone conlusion" doctrine.

Read the full LTN article, "Can the Government Force the Surrender of Encryption Keys?"

Image by Clipart.com

Size Doesn't Matter?

ServingJust as we have seen the migration of attorneys from big law firms to smaller ones during the recent recession; regional e-discovery service providers appear to be experiencing a similar trend. Just look at current e-discovery job postings, and you will see they are all coming from regional providers.

There are several reasons for this shift: smaller vendors often provide more personalized and specialized services; they are usually more flexible in terms of rates and technology used; size doesn't matter because technology has essentially leveled the playing field; and corporations seem to be shying away from using a single vendor and prefer a small stable of vendors instead.

To be sure, large vendors are not going away, we are just seeing companies using more regional vendors that can provide them services on their terms.

Image: Clipart.com

April 10, 2012

Venture Capitalists Make E-Discovery Moves

Dollarsymbol400"Venture capitalists were active in the e-discovery field this week, with FTV Capital pouring $32 million into Catalyst Repository Systems, and Sequoia Capital hiring former Clearwell Systems CEO Aaref Hilaly," reports Evan Koblentz.

Koblentz delivers the the latest in e-discovery industry growth in 2012 on the pages of LTN online.

Image by Svilen.milev

Reed Smith 'RED' Team Taps kCura Relativity

Kcura_logo400International firm Reed Smith has licensed kCura's web-based e-discovery platform Relativity to aid its expanding records and e-discovery ("RED") team, now at more than 50 e-discovery attorneys and growing.

Read the full report here.

Image courtesy of kCura

The Law of Search Meets Computer-Assisted Review

ArkfeldJoin us on April 24 at 1 p.m. EST for a complimentary webinar presentation to discuss legal and technological issues regarding electronic search and the recent focus on the use of computer-assisted review.

Hear from some of the top educators including Judge John M. Facciola, Michael Arkfeld, and Scott Kane who all will also be teaching at the eDiscovery and Digital Evidence Conference and Symposium to be held on May 23-25, 2012, at the Sandra Day O'Connor College of Law at Arizona State University, located in Tempe, Arizona.

In "The Law of Search Meets Computer-Assisted Review" webinar, the instructors will focus on:

  • the law of search — reasonableness, search protocols, and cooperation;
  • types of computer-assisted search — keyword, concept, and predictive coding;
  • search protocol — iterative process, work product issues, sampling, and defensibility considerations;
  • importance of using computers to search — reduced costs, FRE 502, and clawback agreements; and
  • impact of the Da Silva Moore v. Publicis Groupe case.

Click here to register for this complimentary webcast!

Image by Law Technology News

April 09, 2012

ACEDS Annual Conference

The Association of E-Discovery Specialists held its second annual conference last week in Hollywood, Fla. Approximately 450 people attended the three-day conference.

Both vendors and attendees were enthusiastic about certification as one way to measure e-discovery competence and dedication to the field. There are plenty of available offerings: In addition to ACEDS' certification, both the Organization of Legal Professionals, and vendor Kroll Ontrack offer certification courses as well.

Other educational courses (not necessarily for certification) are available from the Georgetown Law Center, Ralph Losey (E-discovery Team Training course), the Association of Litigation Support Professional, and Michael Arkfeld's Online E-Discovery and Digital Evidence Course.  

Although questions still remain on how best to train and measure competence, it appears that we have moved beyond the early adopters stage — and the initial question on whether or not e-discovery certification is a viable option.

What Do These People Have In Common?

Facciola2What do these people have in common? Judge John Facciola, Johann Sebastian Bach, Kenneth Withers, Judge Dickinson Debevoise, Judge Paul Grewal, Apple's SIRI, and Bruce Springsteen.

For another brain puzzler, which one is technically not a real person, but a disincarnate being with enhanced artificial intelligence? Hint, although it may seem like it, I don't mean any of the judges.

To find out the answer to these questions, and many more you did not even know you had, Bach you will, of course, have to read my latest blog:

Good, Better, Best: a Tale of Three Proportionality Cases — Part One

Images: United States District Court, Clipart.

April 06, 2012

Ball in Arkfeld's Court: Notes on Forensics

Racket_ballCraig Ball, computer forensics and EDD special master and author of LTN's "Ball in Your Court" column, was guest lecturer for the latest session of Arkfeld's Online E-Discovery and Digital Evidence Course. In addition to fielding questions and comments, he delivered a fast-paced and informative PowerPoint primer on computer forensics and electronic evidence.

Here are some quips and insights:

• Sometimes there's no loss of "information payload" producing images in .tiff, especially for "unsophisticated clients who have a lot of money to waste ... if you don't mind the bloated format."

• When Arkfeld mentioned that even when both sides agree under Rule 34 to produce in PDF or .tiff, many courts still frown upon it. Ball offered his own Rule 34 observation, "Just because two lawyers agree they can fly doesn't mean they should head for the roof."

Continue reading "Ball in Arkfeld's Court: Notes on Forensics" »

FRCP Preservation Rule Update

Exploration400Today's Law Technology News article, "Federal Judicial Advisory Committee Ponders New E-Discovery Rules," reports on the Civil Rules Advisory Committee’s March 22-23, 2012, meeting in Ann Arbor, Mich. Of particular interest to EDD practioners is the work of the discovery subcommittee on a uniform rule for spoliation sanctions.

The preservation debate is intense. The Department of Justice tells the subcommittee that any change to the preservation rule is premature, while the Lawyers for Civil Justice urgently call on the subcommittee to move forward aggressively on broad-based discovery and preservation rules reform.

The formal process requiring Supreme Court approval and Congressional notice takes time. See Patrick Oot's "Rules Road Map a Quick Guide to How E-Discovery Rules Are Updated." Even if the committee is able to reach a consensus and resolve the considerable number of substantive issues identified by the subcommittee and commentators, a spoliation sanctions rule would not likely be effective before December 2015.

Image by Clipart.com

April 04, 2012

New York Bar's EDD Best Practices Guidelines

MapHere is a link to the New York State Bar's E-Discovery Best Practices Guidelines, which were passed in Sept. 2011. Hat tip: B3 Legal

Image: Clipart.com

April 03, 2012

Peck Order re: Request to Recuse, Da Silva Moore

PeckHere is Judge Peck's order: Download Judge-Peck-Order-re-Plaintiffs-Recusal-Request-in-Da-Silva-Moore-v-Publicis-Groupe

 Hat tip: Rob Robinson

Image: Monica Bay

April 02, 2012

Warrantless Phone Tracking Persists Despite Jones

Police_traffic_stop400Must-read article from The New York Times this past weekend: "Police Are Using Phone Tracking as a Routine Tool."

The article notes how local law enforcement agencies are increasingly using cell phone tracking without warrants. As most people know, cell phone companies can provide fairly accurate real-time tracking of the phones. The article quotes a police manual: "One police training manual describes cellphones as 'the virtual biographer of our daily activities,' providing a hunting ground for learning contacts and travels."

In Jones, the Supreme Court held that the use of a GPS tracking device placed on a car without a warrant violated the Fourth Amendment. The challenge is that the opinion from the Supreme Court was disjointed &mdash: with some justices reasoning that the use of the device was impermissible because the device violated privacy concerns.

Continue reading "Warrantless Phone Tracking Persists Despite Jones" »

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