EDD Update

NY State Courts Bolster EDD

New York state alterations to §202.10(b) and §202.70(g) of the Uniform Rules of Trial Courts became effective on 8/17, after approval by Chief Judge Jonathan Lipmann and the PJs of four appellate division departments.  The New York Law Journal offers this analysis by Joel Stashenko about how the amendments —  which state that all attorneys "must be sufficiently versed in matters relating to their clients' technology systems to discuss competently all issues relating to electronic discovery" at preliminary conferences ‚  will push lawyers to understand EDD.

And after 11 years of tinkering, New York has also begun to institute mandatory e-filing in some areas, he reports.

EDD Market size question

Interesting recent post from Rees Morrison on the size of the EDD market. The Socha-Gelbmann Survey estimate of market size over the past 7 years is based on information provided by consumers (corporations and law firms) and providers of software and services. The Socha-Gelbmann  survey has always clearly stated the scope of the survey (eg. the figures do not include spending by governmental agencies) and the basis for the estimates and projections. Comparing the Socha-Gelbmann  survey estimate with other relevant data based on well defined research is a welcome and useful exercise.  Details on the source and basis for “hoopla” and figures “tossed around in comments” would help to clarify whether there is a true discrepancy or perhaps a case of comparing apples and oranges.

Webinar: IE Discovery

IE Discovery (www.iediscovery.com) is hosting a webinar on Aug. 25. Titled "Alone on a Desert Island with Volumes of Data? An Overview of Tools to Make Your Task Manageable,"  it will focus on teaching legal professionals how to cull data. It will provide tips on small, medium, and large cases —  and various levels of support whether organizations "in-source" litigation support or use a litigation support contractor.

Release here.

Briefing: Index Engines

During a recent phone briefing, Index Engines' vice president Jim McGann explained how Index Engine has evolved from a data retrieval company to a provider of indexing, searching, and data culling services.

Founded in 2003, McGann said, the company has seen the amount of information legal organizations deal with explode from 10 to 100 GB of data to terabytes for small jobs. McGann explained to assistant editor Heather Schultz and me that the Index Engines software is the backbone of his company’s efforts to address this issue.

Developed in-house, the software can index large amounts of data stored on backup tapes, hard drives, or networks.

Despite the enormous amount of client data that Index Engines must process, McGann said it is not uncommon for most clients to find that only 3% of their data is relevant to the matter at hand.

Webinar: ARMA International

ARMA International has scheduled two webinars dealing with records management. The first, "Seven Questions Guide Records Management Strategy and Implementation," is scheduled for Aug. 16 to Aug. 24. "Office Storage on the Cheap," will be held Aug. 30 to Sept. 7.

Press release here.

Webinar: EMC & Craig Ball

LTN columnist Craig Ball will be taking part in EMC's upcoming Best Practice Webinar series. Scheduled  for Sept. 1, it  will also feature Heidi Maher, EMC's principal of compliance and e-discovery practice.

Press release here.

IE Discovery Buys Majority Interest in eDirect Impact

IE Discovery reports that it has purchased a majority interest in eDirect Impact, the creator of eManage EDD workflow management software.

The investment will provide eDirect Impact with additional funding for development of that software, and gives IE Discovery an exclusive license to offer eManage to corporate and government markets, the companies explain.

Based on Microsoft's SharePoint software, eManage helps organizations connect and integrate disparate EDD products and review tools, including IE Discovery's discovery software, InfoDox.

Release here.

e-Pizza Party — Georgetown Advanced EDD Institute

Plan now to attend one of the premier electronic discovery networking events of the year -- the eDiscovery Institute’s Pizza Party to be held the evening of Thursday, Nov. 18, 2010 after the first full day of the Georgetown Law Center’s CLE Program, the "7th Annual Advanced E-Discovery Institute." 

The venue this year is the Ritz Carlton Pentagon City. If you’re interested in attending this great networking event with leading scholars, jurists, in-house counsel, private practitioners and providers, contact one of the sponsors.  Currently the sponsors include AlphaLit, Daegis, DiscoverRedy LLC, Navigant Consulting, Inc., Recommind, TCDI and Techlaw Solutions. This year special sponsorship packages are available for law firms that provide reduced rates for the CLE program and Pizza Party tickets -- contact info@eDiscoveryInstitute.org for more info.

Slow But Steady

With an approximate revenue of $2.8 billion in 2009, e-discovery vendors are slowly but steadily moving uphill again, report Minnesota consultants George Socha and Thomas Gelbmann, in their 2010 survey of EDD trends and developments.

Unlike the logrithmic rabbit leaps of the past, current growth is more tortoise-like, at the rate of 10% to 15% per year, they note in their August LTN cover story, "Climbing Back."

And in our Law Technology Now August podcast, I interview Socha and Gelbmann about the "why" of these trends, from the perspectives of law firms, law departments, and providers.

Briefing: StoredIQ

The International Legal Technology Association will be convening Aug. 23-26 at the Aria Resort & Casino in Las Vegas, with a theme of "strategic unity" -- the need for law firms and corporate law departments to better integrate their technology into the practice of law.

That same theme was reflected in my recent phone briefing with StoredIQ's Keith Zoellner, CTO and vice president of engineering, and Ursula Talley, vice president of marketing. They explained how the StoredIQ Intelligent Information Management Platform 6 targets workflow between IT and legal units. It includes eDiscovery Manager, which features a user interface with graphical analysis and matter management dashboards to help legal professionals perform first-pass review.

Litigants Fail to Heed Lessons of Victor Stanley

For counsel who missed Victory Stanley's warning to conduct quality control on keyword search terms, attorneys
H. Christopher Boehning and Daniel Toal point to a recent ruling that states loud and clear: Counsel who fail to conduct quality control risk involuntarily waiving privilege.

Story here.

Guidance Software: 2Q Revenue Report

While we don't generally cover individual vendor's revenue reports in LTN's print edition, our EDD Update blog is a great place to discuss money! So feel free to send your revenue reports to us -- eddupdate@alm.com. We never promise coverage, but if it's interesting, we're likely to post it!

Here's a link to the latest metrics from Guidance Software, with, of course good news:

* Q2 2010 revenue increased 38% over Q2 2009
* Q2 2010 product revenue increased 61% over Q2 2009
* Q2 2010 Non-GAAP earnings per share of $0.03
* Raises 2010 financial outlook for the second time this year.

For context, check out the August Law Technology News cover story, "Climbing Back," by Minnesota consultants George Socha and Thomas Gelbmann, in their executive summary of their 2010 EDD survey.

Briefing: RenewData

On Wednesday, LTN news editor Dan Howley and I enjoyed a phone briefing with RenewData chief scientist Andy Kraftsow and Joe Garber, assistant vice president of marketing. They discussed the company's inception in 2001 as a tape processing vendor and evolution to a technology services provider once their clients started taking a proactive approach to e-discovery.

RenewData provides services for the discovery, archiving, and governance of electronically stored information, which primarily spans the middle section of the Socha/Gelbmann Electronic Discovery Reference Model including processing, review, analysis, and collection.

An IPad In Court is a Gifted Legal Assistant

I've been in federal court in Mississippi for the last few days and turned to my iPad as a substitute for the paper legal pads that have been my faithful courtroom companions for nearly thirty years. I was pleasantly surprised by how well it worked, even discovering ways that the iPad was far superior to my dear old friend, the yellow legal pad.

Briefing: Planet Data

Last week, LTN editorial assistant Heather Schultz and I held a phone briefing with Planet Data CEO Howard Reissner and president Zoltan Horvath. They co-founded the company in 2001, initially providing printing, consulting, imaging, coding, and repository services.

Horvath explained that the company works primarily in the preservation and collection through production portions of the Socha/Gelbmann Electronic Discovery Reference Model.

Webinar: Iron Mountain & International Litigation Services

On Aug. 4, Iron Mountain and International Litigation Services, in conjunction with Law.com, will host a webinar to examine recent legal decisions that highlight the importance of e-discovery defensibility  and how to manage risk and reduce EDD costs.

Scheduled speakers include ILS' managing director Joe Thorpe, and David Bayer, Iron Mountain's  director of product marketing r.

Release here.

Webinar: Planet Data & Law.com

Planet Data  and Law.com are scheduled to host  "FRCP 26 (F) All Access: A Behind the Scenes View of the Current Requirements" on Sept. 23. Panelists include Planet Data CEO Howard Reissner; U.S. District Court judge Michael Baylson; Ian Hochman, special counsel for e-discovery at Willkie Farr & Gallagher; and James Stricker, partner with Kasowitz, Benson, Torres & Friedman.

Register here.

Webinar: FTI Technology on Culling & Document Review

FTI Technology  has scheduled "Intelligent Culling and Document Review Using Ringtail Analytics" for Aug. 11. Panelists include product manager Carol Stennett and senior product marketing manager J.R. Jenkins. 

Release here.

Introducing the EDRM White Paper Series

Today, we introduce the EDRM White Paper Series and the first of the papers in that series, Once is Not Enough: The Case for Using an Iterative Approach to Choosing and Applying Selection Criteria in Discovery by Gene Eames, David J. Kessler and Andrea L. D’Ambra.

With the EDRM White Paper Series, EDRM offers:

• White papers about electronic discovery and information management
• Prepared by leaders in the field
• Evaluated by EDRM participants prior to publication
• Published on the EDRM site on a non-exclusive basis, in keeping with the Creative Commons Attribution 3.0 United States License

EDRM XML Schema Survey

We have just put up our first EDRM survey.  About the EDRM XML Schema, the survey is at edrm.net/5838 - Please participate!

We are gathering information to improve the EDRM XML schema, to help facilitate a more unified and clear and concise standard.  Your answers and comments to the following questionnaire will provide us with invaluable information and will bring a stronger focus to what you would like to see improved.

The survey is at edrm.net/5838

Gibson Dunn Releases 2010 Mid-Year E-Discovery Update

Our firm, Gibson Dunn & Crutcher, has released our 2010 Mid-Year Electronic Discovery and Information Law Update, which surveys 103 cases from the first half of this year and analyzes the emerging e-discovery trends.  Highlights from the report include:

• Like last year, sanctions and cooperation were dominant themes in the first half of 2010. 
• Motions to compel and privilege disputes also continued at a steady pace. 
• We noted fewer decisions regarding preservation, form of production, and accessibility of data.
  
  

Kroll Ontrack Inview 6.2

Last week, LTN's editorial assistant Heather Schultz and I enjoyed a phone interview with Kroll Ontrack's vice president of product strategy, George May, and public relations specialist Andrea Young, to discuss the company's recent release of Ontrack Inview 6.2 web-based document review software. The software creates new workflow options to help provide users with an automated, repeatable and defensible review process. 

Briefing with Fios' Mary Mack & Donna Peterson

This morning, I enjoyed a telephone briefing with Fios' (www.fiosinc.com) Mary Mack, corporate technology counsel, and Donna Peterson, director of marketing communications.

Mack provided an overview of the e-discovery industry, and discussed the evolution of her duties at Fios since 2000 — when, she says, e-discovery emerged as a separate entity from forensics.

I was surprised to learn that despite the shift from paper trails to e-discovery, only 25% (or less) of law firms have adopted e-discovery. Mack writes the Sound Evidence blog, which offers insight on EDD news and trends.

Thomson Reuters Acquires CaseLogistix from Anacomp

Darwin Watch: In what signals a significant move into the e-discovery market, Thomson Reuters has purchased CaseLogistix from San Diego's Anacomp. Terms of deal were not announced. 

CaseLogistix offers document review, data ingestion, and production tools to help litigation teams manage the electronic discovery review process, says TR. "The acquisition is a critical next step in furthering the Thomson Reuters litigation strategy," says Allison Guidette, TR Legal's vice president and general manager of litigation (and formerly an executive with Merrill Corp.) The CaseLogistix team will be under her umbrella.

Tom O'Connor, a long-time member of LTN's Editorial Advisory Board, served as an independent consultant for CaseLogistix from 2006-2009, writing white papers, and conducting webinars and focus groups about e-discovery processes. The acquisition, he says, shows that there's been no slow-down in the efforts of large companies aquiring small EDD firms, in order to create "end-to-end" offerings. "More specifically, this signals to me that TR is serious about that market, and is finally taking steps to counter the immense EDD and litigation support market presence of LexisNexis." 

EMC To Host EDD Webinar

The folks over at EMC (www.emc.com) have announced they will be hosting a webinar on July 14. Topics up for discussion include the risks associated with current e-discovery practices, tools, and processes. Speakers include Randolph Kahn of Kahn Consulting, and EMC's in-house attorney, James Shook. The two will provide insight into how today's trends can dictate how you or your firm will perform e-discovery in 2011.

Release here.

Poetry to Sooth the Savage Soul

It's Tuesday. You owe yourself a break from the savage rat-race. You owe yourself a few minutes of downtime. So why not treat yourself to some poetry? 

But not just any poetry, the latest in post-modern genre: e-discovery poetry. Read what law students are writing and some of your colleagues too. It's all in my blog this week entitled: The Poetry of e-Discovery: People Not Only Make Mistakes, They Lie, Steal, Cheat and Fake. Yes, you can even read my feeble efforts. 

But better yet, read my quotes of Carl Sanburg on lawyers and my retort thereto. (I'm definitely better at retorting than poetry!) Also read Charles Dickens on lying witnesses, and W. H. Auden. Leave us a poem yourself in the Comments at the end of the blog. 

At the same time you will learn about the latest trade secret e-discovery case: Genworth Financial Wealth Management Inc. v. McMullan, 2010 U.S. Dist. LEXIS 53145, (D. Conn. June 1, 2010). What could be better on a lazy summer day? Ok, I can think of one thing, but aside from that?

PSS Systems: Atlas Compliance Automation Connector

My colleague Heather Schultz and I recently enjoyed a telephone briefing with Rani Hublou, vice president of marketing for PSS Systems (www.pss-systems.com), and Laurie Gibson, a public relations consultant with Kickstart Consulting.

They  discussed with us the recent partnership between IBM (www.ibm.com) and PSS Systems that was created to develop the Atlas Compliance Automation connector for IBM's eDiscovery Manager.

According to Hublou, once an organization's attorneys establish a legal hold, alerts are sent to all relevant parties, including legal, IT, and business users. The alerts are key to making sure employees properly save or destroy documents during the data purging cycle.

The software also provides an automated write-blocker that prevents any data that has been put on hold from being accidentally destroyed.

Release here.

Cirago CDD2000 USB 3 Hard Drive Docking Station

I'd replied, "Thank you for the offer of a review unit.  I would happily accept, except none of my systems have USB 3.0 ports, so I'd be unable to test the product effectively."  Imagine my surprise when the UPS guy delivered a Cirago CDD2000 USB 3.0 Hard Drive Docking Station.

You'd think getting "free" stuff is a perk for a technology writer, and occasionally it is.  The MacBook Pro and iPod program that Ross Kodner arranged for a lucky group of forensic technologists five or six years ago remains unequalled.  Still, most of what people send for review is software, and much of that is--forgive the technical jargon--total crap.  Hardware is a welcome change, but testing hardware demands that I buy cards, cables or media the costs of which can outstrip the value of the product under test.  Then, if the hardware is something of substantial value, I have to return it to avoid the appearance of impropriety.  Vertu, Tesla: don't let that stop you. ;-)

Thus, I made my weekly trek to Fry's to spend $150.00 to test a $49.99 (suggested retail) device.

Product Review: Wiebetech USB WriteBlocker

I've lost count of how often I've brayed, "Lawyers have lost touch with the evidence."  We've lost our ability to dive right into the data when a new client comes in--at least if the client brings a hard drive or thumb drive.  No lawyer with half a brain plugs electronic evidence into his or her own computer and pokes around because, by now, most lawyers know about metadata, and appreciate that they can alter evidence simply by browsing it.  Can you say "spoliation?"  I knew you could.

But the alternative is also pretty ugly, being lawyers treating electronic evidence like it's radioactive.  It's sent out to expensive vendors and experts while lawyers wait days or weeks to see what's there.  Wouldn't it be great if lawyers lacking technical prowess could quickly and safely wade into the client's digital files and see what's what?

EMC Webinar on EDD Trends, Risks and Practices

EMC SourceOne eDiscovery - Kazeon (www.kazeon.com) has scheduled a webinar, "eDiscovery 2011: Trends, Risks and Best Practices" for July 14. Panelists will discuss the current trends in e-discovery, risks associated with current tools, and best practices to consider adopting.

Speakers include Randolph Kahn, founder of Kahn Consulting, and James Shook, e-discovery expert and attorney at EMC.

Release here.

Better than Nothing is None Too Good

It's the duty of every litigator to be adept at drafting and deploying an effective, defensible legal hold notice. We know this because of scathing sanctions opinions calling the failure to implement a proper legal hold "grossly negligent,’ "reckless", "negligent" or simply "cruel to puppies."

Accordingly, the big firm brain trusts have concocted boilerplate legal hold notices, ready for insertion of pithy lines describing the dispute and poised to propel a payload of synonyms at countless souls condemned to wear the scarlet "KC."  Big firms easily identify Key Custodians because big firm research has shown that key custodians have the "@" sign in their e-mail addresses.  It's a dead giveaway.

But, just when Big Law is ready to toast "Mission Accomplished" to its mastery of the legal hold, up floats that turd in the punchbowl called 'reality.' The omnibus legal hold notice is like the yield on Bernie Madoff’s hedge funds: appealing in practice, but foolish in fact.

Exterro Webinar on EDD Pitfalls

Exterro (www.exterro.com) has scheduled a webinar, "Bridging the Gap: Finding and Fixing Three Common
 E-discovery Pitfalls," for Aug. 4. Speakers will discuss ways to assess e-discovery gaps, and address compliance issues. 

Panelists include Peter Caradonna, litigation technologist at Biogen Idec (www.biogenidec.com); Dan Coppola, director at Huron Consulting Group (www.huronconsultinggroup.com); and Bob Rohlf, e-discovery strategist at Exterro.

Release here.

Scarab Consulting Webinar: EDRM Model Code of Conduct

When it comes to acceptable boundaries of ethical business practices within the eDiscovery service industry, are we still in the time of spurs, six guns and saddles? Join us at high noon as industry experts discuss developing Model Code of Conduct guidelines and their relevance to both companies and legal technology providers. Topics addressed will include:

• The current “lawless” state of today’s eDiscovery practice
• How the Electronic Discovery Reference Model (EDRM) Model Code of Conduct Project is seeking to tame the wild, wild west
• Ideal best practices for the supervision of attorneys, non-attorneys and clients

Unify & Daegis Merging

Unify, a data management and migration software vendor, and Daegis  an e-discovery and litigation support consultancy, are in the process of merging. The new entity, yet to be named, will focus on data archiving, information governance, and EDD, they say.

Under the accord, Unify will pay $38 million in a combination of cash, seller financing, and stock. So far, Unify has paid $24 million in cash, delivered $6.2 million in convertible promissory notes, and issued approximately 2.1 million shares of its common stock to Daegis shareholders.

Iron Mtn's OnPoint; CaseCentral Upgrades 2 Cloud

Iron Mountain has debuted Stratify Legal Discovery OnPoint. The hosted system helps users load data for early filtering to help legal professionals assess the merits of their cases. It offers metadata-based faceted search, automatic concept organization, and random sampling technologies. At any stage, legal professionals can return to the full volume of restored, unfiltered data to identify additional documents to be included in the review.

CaseCentral introduced its cloud-based CaseCentral eDiscovery Platform 4.1, which includes a new folder creation assistant that automatically creates complex folder structures for large data sets. For the latest news and analysis, visit the EDD Update blog.

Assist: Dan Howley.

ARMA International Webinar

ARMA International (www.arma.org) is scheduled to host a webinar from July 5 through July 13 focusing on the challenges of offsite storage compliance. It will be facilitated by Cindy Carnagey, Dell's offsite storage contract manager and retention advisor.

Release here.

A Match Made in...Eden...Prairie

In her 6/25 Daily Alert e-mail, Monica Bay floated the intriguing notion that Kroll Ontrack might be "a perfect fit" for acquisition by Thomson Reuters, particularly as soul mate to its West legal publishing subsidiary.  I'm no yenta, but I haven't been able to get that match out of my head.  Let's look at their compatibility score:

Show No Fear

In June's Law Technology News, Craig Ball channels Mendelsohn's Elijah, singing  "Be Not Afraid."

Ball expounds on the single greatest problem posed by electronically stored information -- and it's not data volume or complexity. It's the reluctance of lawyers to exert the time and effort required to understand ESI.

Are EDD Sanctions Tough Enough?

Freelancer Jason Krause ponders the question here, discussing Pension Committee and other recent cases, here.

Incoming EDD-mail

* San Francisco's D. Mark Jackson, a partner at Bassi, Edlin, Huie & Blum, has launched LeanLaw, a blog for lawyers and other professionals. It focuses on "organizational efficiency and personal productivity."

But I have to confess, his latest post leaves me puzzled: "I’ll be presenting at the U.S. Open golf tournament today. The topic is ethics and electronic discovery," he says. OK, I guess I'm clueless but what's the nexis between golf and EDD? Perhaps he'll jump into the comments and 'splain it all to us.

* Bill Onwusah, lit support manager at Hogan Lovells, forwards a link about a vendor offering "safe discovery" legal reviews on iPads and iPhones. I'm not sure I "get" this either.  :)

* Peg Duncan's post about "ECA & the Prince of Denmark" will no doubt entertain the e-discovery crowd. From Slaw blog

People Make Mistakes

“People make mistakes.” This simple three word sentence is how Chief Justice John Roberts begins his opinion in Conkright v. Frommert, No. 08-810 (Apr. 21, 2010). He goes on to add: "Even administrators of ERISA plans." Then he explains how complicated those plans can be. As a former ERISA litigator, I know he's right, as I have read far too many ERISA plans myself. But let me tell you, as an attorney who left ERISA to focus solely on e-Discovery in 2006, it's nothing compared to ESI plans.

More judges need to learn the lesson of complexity and the impossibility of perfection in all situations, not just ERISA plans. The lesson is especially needed in the area of electronic discovery, where mistakes are inevitable in large projects. Everyone involved in e-discovery needs to learn that a mistake is not automatically negligence. In the language of the law, res ipsa loquitur does not apply. A missing ESI is not equivalent to a barrel falling on your head! It depends on the facts and circumstances. It depends on how bad a mistake it was.

LTN Vendor Satisfaction Survey: Service Rules!

The results are in from the inaugural LTN Vendor Satisfaction Survey, conducted by our ALM Legal Intelligence research group under the direction of vice president Kevin Iredell. Conducted this winter, via a confidential online poll, the survey asked legal professionals who buy -- or influence the purchase of -- legal technology to review the vendors and to tell us what they want from those vendors. (LTN's editorial team was not involved in the process.)

Anyone who has ever tried to call a major company, from a bank to an airline, will easily predict the criteria that tops the "wish list" -- customer service. Overwhelmingly (77%), respondents screamed for "responsiveness to issues and prompt resolutions."

In our July issue cover story, "Help, Please!" Law Technology News explores the survey, and analyzes its results. Here's a sneak preview of the article!

Applied Discovery Partners with EMC

Applied Discovery (www.applieddiscovery.com) is partnering with EMC (www.emc.com) in a deal that means AD can offer EMC's SourceOnce eDiscovery Kazeon early case assessment service  -- to help  users collect, cull, and analyze EDD data, and then move it into AD's processing and review services.

Press release here.

Integreon Outsourcing Deal: New Model?

CMS Cameron McKenna has signed a 10-year, ₤538 million deal with California’s Integreon to outsource non-billable "middle office" services.

The services include accounting and finance, human resources and training, marketing and communications, training, library and information services, research, IT, and facilities.

Isom & Santalesa join InformationLawGroup

InfoLawGroup reports that David Isom and Richard Santalesa have joined the firm as senior counsel. Isom was formerly co-chair of Greenberg Traurig's EDD practice group. Santalesa, based in New York City and Fairfield, CT., focuses on electronic commerce, internet, privacy issues and other commercial arrangements involving intellectual property and technology-savvy companies.

More here.

 

Cowen Group: PM is Exploding

The Cowen Group a New York-based legal recruiter and consultancy, has announced the results of its 2009/2010 eDiscovery and Litigation Support Professionals Salary Survey. According to managing partner David Cowen, 487 professionals at 100 major firms shared their salary data with TCG for its 5th annual report. The data was gathered between November 2009 and February 2010.

As usually occurs, salaries are highest on the East Coast, lowest in the central part of the country. TCG broke the results into six different categories, with these median 2009 base salaries and projected 2010 East Coast figures: 

* analyst $67,500 ($72,000) 
* specialist $91,000 ($93,000)
*  project manager $115,000 ($125,000)
* regional coordinator $135,000 ($145,000)
* national manager $165,000 ($205,000)
* and firmwide director $267,000 ($295,000).

Ontario v. Quon: SCOTUS Says Text Search Was Reasonable

As a long-time reader of EDD Update and first-time poster, I am delighted to use my inaugural post to bring you something hot off the presses - the Supreme Court opinion in City of Ontario v. Quon. 

The media commentary has already started on what it all means for privacy rights and the answer may be "not a whole lot," since the Supremes largely punted on the privacy issue and intentionally sought to keep the ruling narrow.

The majority opinion assumes arguendo that Sgt. Quon had a privacy right in text messages sent and received via his work-issued pager, but concludes that the search of the texts by his employer, the City, was nonetheless reasonable and the Fourth Amendment was not violated, reversing the 9th Circuit.

No rehash of the facts or extensive analysis in this post, designed solely to alert you to the decision (although there is certainly more to be said).

Without further ado, here is the lnk to the syllabus and opinion:
http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf

New Jersey Women in eDiscovery

Warm thanks to the terrific gang at the New Jersey chapter of Women in eDiscovery, for inviting me to come to their June meeting yesterday and talk about social media and LTN's May cover story, "Risks & Rewards."

Before I began my presentation, we went around the table comparing notes about our EDD pet peeves. One of my favorite moments was when one of the women (who will remain nameless) did an hysterical parody of a firm partner doing the stop-and-go "dance" about when a project will actually start.   And of course, who has been involved with any discovery and not heard, at 4:55 pm on a perfect summer Friday, the dreaded words, "Can you work the weekend?"

IMRM Graphic Available for Download

The Information Management Reference Model (IMRM) graphic is now available for download, either as a .jpg or an .eps file. The files can be downloaded from the main EDRM page (edrm.net), the EDRM downloads page (edrm.net/1617), or the main IMRM page (edrm.net/25).

A Quality Assurance Tip for Privileged ESI

We squander so much money in e-discovery searching for confidential attorney-client communications.  "Squander" because it's an outsize expense that could have been largely eliminated with minimal effort at the time fingers met keyboard.  It's not as though counsel are wholly unaware of the sensitivity of privileged communications when made.  If it had been a face-to-face conversation, we'd have had the presence of mind to shut the door or ask those outside the ambit of privilege to leave.  Lawyers really aren't as stupid as we sound in the reported decisions.

If we have the presence of mind to recognize and protect a confidential attorney-client communication when made face-to-face--if we're savvy enough to say, "Wait a second while I take this off speakerphone,"--why are we incapable of bringing the same cautious mien to our electronic conversations?  And, why-oh-why do we forget the most important component of quality assurance before producing material posing a risk of inadvertent production of privileged communications?