1.6 Million Documents Released: EDI-Oracle Study Updates

As many of you know, EDI has been working on its second computer-assisted review (CAR) study, comparing the results of an actual document review in a real litigation to CAR providers.

After almost two years of planning, last week the EDI Oracle Study team released the entire dataset of over 1.6 million docs to the first wave of participants. Top performers stand to gain Oracle’s e-discovery business. A link to the press release about the data is attached to this post.

Download EDI Oracle Study Press Release Jan 8

On Friday, January 11, 2013, the team had its first training call with outside counsel. Over 60 representatives from the participants dialed in. The goal of the training was to familiarize participants with the legal issues surrounding the matter. The original complaint was filed under seal — but we are working on what we can discuss in public.

Prior to and during the call participants submitted dozens of questions about the matter — mostly focused on the data load and technical issues. The EDI and Oracle team are working diligently on what we thought the technical team would be able to answer by today, but it is looking like we will respond to technical questions on Wednesday 1/16/2013.

I will post weekly with updates on the status of the study here on EDD Update. I will Tweet from @patrickoot and post on LinkedIn when I make the updates.

Image by Redjar

EDRM Publishes CARRM Framework

EDRM published Wednesday its Computer Assisted Review Reference Model (CARRM) framework diagram, which can be downloaded here.

EDRM's CARRM represents the joint efforts of computer-assisted review providers — Automony, an HP Company; Daegis; Exterro; Falcon Discovery; FTI Consulting; kCura; KPMG; Kroll Ontrack; NightOwl Discovery; and Recommind — as well as leaders from Bowman & Brooke; DLA Piper (U.S.); Littler Mendelson; and Quarles & Brady. Click here for a complete list of EDRM Search participants.

Follow us at EDRM's CARRM section as we add an explanation of the model, descriptions of each stage in the model, and more.

Resistance Is Not Futile

I'm home with a broken ankle today and so was able to watch the stock market reaction to the release of Federal Reserve Chairman Ben Bernanke's speech on fiscal policy. Tens of thousands of brokers and investors were eagerly awaiting this speech to try to forecast the direction of the stock market. Many were ready to immediately execute trades based on the content of this writing.

I watched CNBC and the market reaction to the speech. The market almost immediately dropped 100 points, just minutes after the speech was released to the public and before he had even begun reading his speech. No human could possibly have read his speech that fast. At best they could have skimmed a few paragraphs. Yet millions, perhaps billions of dollars changed hands as the market plummeted. Then, as if by magic, in the next hour the market climbs back up that 100 points lost, and goes even higher. What the hell happened? Bernanke did not depart from his published speech.

A CNBC reporter on the floor of the New York Stock Exchange (I think it was Bob Pasini) provided a very interesting explanation, one which I predict will not be again repeated and may even be hushed up. I will not forget it because it made perfect sense to me and has implications for legal search in e-discovery.

Read the full commentary on LTN online.

Image: courtesy of Ralph Losey

Judge Peck Refuses Recusal

U.S. Magistrate Judge Andrew Peck (N.Y. Southern District) Friday issued an opinion and order rejecting plaintiffs' request that he recuse himself in Da Silva Moore. 

Story and opinion are on the LTN website, here. 

 

 

Image: Monica Bay 

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.

Image by Clipart.com

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.

Image by Clipart.com

KPMG Loses Appeal in Pippins

KPMG has lost its appeal in the controversial Pippins case. Judge McMahon said KPMG must preserve all possible plaintiffs' drives. Full story here.

Breaking News: Lexis Sells Applied Discovery

This just in: Lexis has sold Applied Discovery to Siris Capital Group. Lexis bought Applied in 2003.

"Regardless of how 2011 turned out, you now have a clean slate to build upon in 2012. And, while we are on the topic of clean slates, we are thrilled to report that we are beginning the year afresh too, as an independent company," wrote Applied's Jon Resnick, worldwide vice president for field operations and marketing, in the company's weekly newsletter.

"Siris Capital Group has taken Applied Discovery private from LexisNexis (with LexisNexis' parent, Reed Elsevier, retaining a minority interest)," Resnick continued. "As friends of our company, we want you all to know that business will be as usual through this transition, which is happening incredibly smoothly."

Stay tuned to the Law Technology News homepage for the full story later today.

HP to Buy Autonomy? Details Tonight ....

Bloomberg is reporting that Hewlett-Packard is acquiring e-discovery giant Autonomy for $10 billion, and that the news will be announced in HP's third-quarter earnings call at 5:00 ET / 2:00 PT today. Autonomy confirmed that it is "in talks" with HP. Assuming the Bloomberg story is correct, then it's HUGE news for the legal technology industry, and it automatically makes we media types wonder what's next -- as we here at LTN have already done. This news dwarfs the Symantec deal for Clearwell at a now-meager $390 million. Stay tuned!

Editor's Update: Here is Evan's Friday report. —M.B. 

Jack Halprin Expected to Jump to Google

Jack Halprin, who recently resigned from his post as Autonomy's vice president, e-discovery and compliance, is expected to land at Google to manage its electronically stored information, for both legal and information governance purposes, in its Apps/Postini wing, according to the 9TO5Google blog.

What's the significance? LTN editorial board members Tom O'Connor, Craig Ball, Ralph Losey, Robert Owen, and George Rudoy analyze the move here.

Image courtesy of the Digital Government Institute. 

Rupert Murdoch Scandal = e-Discovery Story

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

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

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

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

Supreme Court to Decide GPS Case

The Supreme Court on Monday agreed to decide whether the warrantless use of a GPS tracking device on a defendant’s vehicle to monitor its movements on public streets violated the Fourth Amendment.  The case is United States v. Jones, Supreme Court Docket No. 10-1259. The D.C. Circuit had previously held that the use of a GPS tracking device without a warrant violated the Fourth Amendment.

In this case, the defendant was under investigation for suspected drug offenses. As part of the investigation, officers installed a GPS device on his vehicle and tracked his movements for four weeks.

Supreme Court on Searches (Davis v. U.S.)

The Supreme Court today held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule –- even when the court later overrules the precedent. The case is Davis v. United States.  You can read it here.

This case involved a major shift in the law about when police could search a vehicle after the arrest of the driver.  In New York v. Belton, 453 U. S. 454 (1981), the Court permitted the police to search the passenger compartment of a automobile incident to arrest of a recent occupants, regardless of whether the arrestee was within reaching distance of the vehicle at the time of the arrest. 

In 2009, in Arizona v. Gant, 556 U. S. ___ (2009), the Supreme Court overruled Belton.  The court adopted a new rule that permitted the police to search an automobile after the arrest of an occupant only if the arrestee was within reaching distance of the vehicle during the search.  (The Court also permitted the search of a vehicle if the police had reason to believe that the vehicle contained evidence of the crime of arrest.)

Reasons Emerge for E&Y's Cataphora Acquisition

Accounting giant Ernst & Young has announced its acquisition of the electronic discovery division of Cataphora for an undisclosed amount. The deal better equips E&Y to market to the legal field, differentiate itself from its competition, and upsell additional services, the consulting company said in the release.

Industry observers were quick to assess the move:

"If the threat of Dodd-Frank's impact on international business comes to pass (for example), it could be boom times ahead for the Big Four accounting firms in responding to global regulatory investigations from whistle-blowers," said Katey Wood, an e-discovery analyst for Enterprise Strategy Group, in an interview by e-mail today. The consultancy is based in Milford, Mass.

"What you have here is a services-based organization buying what is primarily a software shop," observed George Socha, of Minnesota's Socha Consulting (and a member of Law Technology News' Editorial Advisory Board. "It probably means that if you want to use Cataphora's software, you are going to be buying Ernst & Young's services as well. Depending on your perspective that could be a good thing or a bad thing,"  Socha added. (Consultants Socha and Tom Gelbmann offer Apersee software that helps users evaluate EDD vendors.)

The deal closed on May 27 and represents the third significant e-discovery deal in three weeks, said E&Y. Autonomy acquired Iron Mountain's digital division on May 16 and Symantec bought Clearwell Systems on May 19.

E&Y told us they'll have much more to say Wednesday (6/1) morning, so be sure to check back on our main site at www.lawtechnologynews.com and here!

Update 6/1: Full story is available here.

Image: Clipart.com

E&Y Buys Cataphora

LTN's Evan Koblentz will be filing an article shortly about Ernst & Young acquiring Cataphora.

For now, here's the  press release.

Image: Courtesy Cataphora

Reed Smith Raids K&L Gates for New EDD Team

Man oh man, I'm offline on a six-hour flight to LA (for LegalTech West Coast) and land to tons of news!

First, Reed Smith snagged 14 professions and formed a new e-discovery and records practice. See next post for #2.

Jamie Moss brings us the 411 about Reed Smith (unedited): (Link to press release here)

"Reed Smith LLP today announced the addition of 14-members to its new e-Discovery practice.  The group will work from the firm’s Global Customer Care Center in Pittsburgh. A majority of the group begins  working today, the remaining members are wrapping up current projects and  facilitating the transition and are expected to be in-house shortly."

"The  Practice Group is led by David R. Cohen, who joined Reed Smith in early May  from K&L Gates, where he formerly co-founded and served as co-chair of  that firm’s e-Discovery Analysis and Technology Practice. Cohen has more  than 25 years of complex commercial litigation experience, with a long-term  focus on e-discovery, automated litigation support and records management  issues All members of the team were formerly  part of the e-Discovery Analysis & Technology (e-DAT) Group at K&L  Gates in Pittsburgh.

And Did I Mention It Was FREE? - FTK Imager 3.0

I'm incessantly flogging the notion that lawyers need to get back in touch with the evidence.  By that I mean, lawyers need ways to get a jump on the cost, delay and anxiety that characterizes e-discovery circa 2010 and secure quick, non-destructive access to the electronic evidence that will drive the direction and outcome of the dispute.  This is what that awful marketing buzz phrase "early case assessment" would mean, if it meant anything at all.

If lawyers could just take a quick look at some of the relevant stuff that key players hold; you know, sit down with correspondence and documents like we did in the old days--browse, as it were--then lawyers could start asking the right questions from the start.  And asking the right questions is a trial lawyer's most important contribution.

So, when a tool surfaces that helps lawyers get back in touch with the evidence, I look at it.  When it's free and fairly easy to use, I jump up and down waving my arms madly for all to see.  I'm in that latter mode for the latest release of AccessData's FTK Imager Ver. 3.0, available here.

Darwin Watch: DTI Acquires Daticon EED

Document Technologies Inc. has acquired Daticon EED, a Seattle-area e-discovery company. The company will now be known as "EED, a DTI company," based in Atlanta.

Effective immediately, it will act as the operating unit supporting current Daticon EED clients. John Davenport Jr., currently president and CEO of DTI, will continue in that role. The terms of the deal "are not, and will not be disclosed," said publicist Amy Juers, of Edge Legal Marketing.

DTI says it now has annual revenue of more than $130 million, including $70 million-plus from discovery services. It operates six large data centers in Atlanta, Chicago, New York, Seattle, Washington, D.C., and Norwich, Conn.  The former EDD Daticon offices in Kirkland, Wash. will be used as a regional technology center.

Victor Stanley II: A Swift Kick in the Bass

Regular readers well know the admiration I hold for Magistrate Judge Paul Grimm (D.MD) and his matchless contributions to the scholarship and advancement of electronic discovery.  Fanboy?  Mea culpa.  His Honor has done it again, today issuing a must-read analysis of the law of spoliation as it relates to e-discovery in a case familiar to all who follow EDD: Victor Stanley, Inc. v. Creative Pipe et al.

What will surely be known as Victor Stanley II devotes 35 of its 89 pages (exclusive of 'bonus' 12-page chart re: spoliation sanctions by circuit) to describing the sort of reprehensible data destruction and dissembling that's all-too-familiar to forensic examiners but which Judge Grimm labels, "the single most egregious example of spoliation that I have encountered in any case that I have handled or in any case described in the legion of spoliation cases I have read in nearly fourteen years on the bench." (p.34).

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." 

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.

CT Summation & AccessData Morph into AccessData Group

Darwin Watch: Wolters Kluwer's CT Summation and AccessData have just announced that they have signed the paperwork to merge into a single company: AccessData Group.
   The new company will offer a cradle-to-grave electronic data discovery offering, they report. Currently, AccessData's namesake e-discovery software helps users address litigation holds, automated collection, processing, and analysis prior to attorney review. CT Summation's roster includes litigation workflow and e-discovery products: iBlaze, CaseVault, and Discovery Cracker.
   AccessData CEO Tim Leehealey told Law Technology News that he will remain on as CEO, with his current management team, which includes Brian Karney (COO) and Erick Thompson (founder/CTO), among others. Whether CT Summation leaders will participate on the management team is unsettled at this time, he said. 

Kroll Changes Hands

Kroll, Inc., parent company of EDD service provider Kroll Ontrack, has been sold by insurance giant Marsh & McLennan to government security contractor, Altegrity, Inc.  MarshMac, who acquired Kroll in the summer of 2004 for $1.9 billion, will receive a reported $1.13 billion for the unit.  Wonder if some of Kroll's investigative skills will be tasked to find out what happened to that $770 million in value lost to shell-shocked shareholders like me?

It's likely a good move for Kroll--always a poor fit at Marsh and a minor contributor to revenues--and a homecoming of sorts, as former Kroll chief, Michael G. Cherkasky, now runs Altegrity.

Judge Scheindlin Enters Order Correcting Pension Opinion

Judge Scheindlin entered a second amendment to the Pension Committee opinion today, May 28, 2010. Please see my e-Discovery Team blog for the entire text of the Order.  "Likely constitutes negligence" is changed to "could." The "all employees" phrase is also modified to "those with any involvement." We can all breathe a little easier this weekend.

I heard this correction by Judge Scheindlin came about as a result of a question asked of her at a CLE event this week. Anyone care to share the details of that? Who gets the credit for bringing this glitch in wording to her attention?

ILTA 2010: It's What Happens in Vegas

When Nashville flooded a few weeks ago, one of the casualties was the Gaylord Opryland Resort that was to have played host to the 2010 ILTA convention. Speakers and attendees have been in suspense since the rivers rose, waiting to find out where ILTA would anchor.  The answer is Vegas, baby!  And not just anywhere in Vegas, but the brand new Aria Resort, centerpiece of the sprawling, sparkling CityCenter complex just south of the Bellagio.

I happened to be in Las Vegas this evening, so I strolled over to CityCenter for a firsthand preview of how ILTA will fit the Aria.  "Strolled" hardly applies to any trudge along the Strip--a block in Vegas is five blocks most other places--but when I asked the folks at the Bellagio the best route to CityCenter, you'd think I'd asked them about the best way up K2!  They instead herded me to the tram that connects the two properties--a slick little train like those that carry passengers between terminals at major airports.  It signaled that Aria was going to be a different Vegas experience...and it was.

Fios: Shakeup at the Top

John Hesse, newly-named President and CEO at Fios reports that it's "basically business as usual" at the Portland-based e-discovery service provider after the unexpected departure of former CEO, Chris Junker.  Junker, who held the top spot for eight months, resigned for undisclosed personal reasons and returns to Chicago.

John Hesse, who most recently served as the company's CFO and COO, was upbeat on the sudden shuffle.  Per Hesse, "It's an exciting time at Fios." 

Undoubtedly.

Here's the press release.

Judicial Boxing Match?

With the Winter Games in high gear, it is hard not to think of the headline for the main card of an e-discovery boxing match between two federal judicial heavy hitters:

Rosenthal vs. Scheindlin 

The introductions of a boxing announcer come to mind reading Judge Rosenthal's recent opinion in Rimkus v. Cammarata, 07-cv-00405 (SDTX Feb. 19, 2010) and her subtle (or not so subtle depending on how much is read into her opinion) critique of Judge Scheindlin's very much discussed opinion in The Pension Committee of Montreal, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 15, 2010).  And in this corner, at the forefront of e-discovery, legal holds and the duty to preserve all relevant evidence... hailing from the toughest city in the world - New York... Ms. ESI... Judge Scheindlin.  And in this corner... mover and shaper of the Federal Rules of Civil Procedure... Champion of the Safe Harbor... hailing from the toughest state in the Union - Texas... Ms. FRCP amendments... Judge Rosenthal.

LTNY: T-Minus 12 h

       

I've just navigated the chaos that is the LegalTech vendor floor (see photos, click each for larger images) and, after more than a decade watching these shows take shape on both coasts, I still marvel at how this mess morphs into the polished event that will emerge in a few hours.  It's going to be a great show for the vendors.  I can't predict the traffic won't be off in sheer numbers of warm bodies, but those who come will have budgets to buy that were nowhere to be seen last year.  Everyone tightened belts, but those compelled to do more with less now face doing more with less...that's now a year or two past its prime.  The fear factor has dissipated (even obscene Wall St. bonuses are back and Ford's turned a profit), so the checkbooks are coming out.  

Judge Scheindlin Correction: Pension Committee Opinion

On January 11, 2010, Judge Scheindlin issued a landmark ruling on sanctions - The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al. Lexis was the first to pick up on it and published the Order on January 13th. See:  2010 U.S. Dist. LEXIS 1839. I  wrote a lengthy blog on the new case, which I published on January 17th. Then today, on the 18th, I was just advised that Judge Scheindlin issued an Amended Order on January 15th, which makes several revisions to the original Order.

Broadcom Charges Thrown Out

The National Law Journal  reports that a federal judge has thrown out all criminal and civil charges related to the stock options backdating scandal at Broadcom Corp. amid accusations of prosecutorial misconduct. 

Here's the first version of the story: 

Will Smarter TIFFs from Microsoft Change E-Discovery?

I trust you know, dear reader, that the only thing dumber than a TIFF file is converting your entire e-discovery collection to TIFF images for review.  But, while wholesale TIFF conversion will forever be monumentally stupid and profligate, it appears TIFF files just acquired a few brain cells. 

At risk of being revealed as the last kid on the block to figure this out, I learned today that Microsoft offers a way to smarten up TIFF images such that load files--those hinky, stinky electronic bills of lading that must accompany TIFF image productions to make them usable--may no longer be needed.

Searching ESI: A Lesson from Aunt Judy

Imagine you borrow your buddy's mobile to phone your wife.  When you type in her cell number and hit send, the phone recognizes the number as belonging to "Aunt Judy."  Huh?  Your wife's name is Cindy.  Suspicions aroused, you start poking around in the text messages and find exchanges confirming that "Aunt Judy" and your trusted pal have been doing the horizontal mambo.  Ouch!

EDRM Data Set Project: EDRM Enron PST Files Now Available

The EDRM Enron PST files are now available on the EDRM website. They are posted as 32 zipped files, each less than 700 MB in size. Also posted is a spreadsheet listing the zipped files and the 168 .pst files contained in the zipped files.

There are several ways to reach the files. The simplest is:

• Go to the main EDRM page, http://edrm.net.
• Select the Data Set icon. That will take you to the main Data Set page, http://edrm.net/activities/projects/data-set.
• Select the “Enron Downloads” tab, and download the files listed there.

Please let us know if you have any questions, problems or suggestions.

Thank you,

George Socha (george@sochaconsulting.com)

Corcoran Group Sanctioned

RT @leecomms: Corcoran Group sanctioned for ediscovery failure and deleting e-mails in spite of repeated warnings http://tinyurl.com/yzzt68s  (New York Law Journal article).

Ajilon and Fios partner for full-service e-discovery

How long has it been since you pulled up to a full-service pump or stopped for gas in New Jersey or Oregon? You do remember the concept of full service, right? Service provided by an attendant that saw to all your vehicular needs when you pulled into the station. If you do, then compare the gas station attendant to the new partnership between Ajilon and Fios that have teamed up to provide a full, or "all-inclusive," e-discovery service.

The Ajilon-Fios partnership combines Fios’ e-discovery services with Ajilon’s legal staffing and litigation services. Together, they hope to provide clients with a one-stop shop for e-discovery services from processing through preview with Prevail, all at a predictable, per-gigabyte price model.

Anacomp Executive Purge?

We are tracking down strong rumors that there has been a major purge of executives at Anacomp by its board of directors. Once we get confirmations and details we'll post more 411.

411: We tracked the rumor down. In fact, Howard Dratler, Anacomp CEO, got right back to us to set the record straight. There were never any plans to unseat him as CEO. But Dratler did hire Scott Winkler to be the general manager of Anacomp's CLX business. According to Dratler, "Winkler's initial focus will be on better alignment of our Development, Product Management and Marketing organizations with the goal  of building on/accelerating the strong progress we have made over the past several years and taking our eDiscovery and Litigation Support business to the next level."

EDD on the Fringes: CA - SB 748

I admit, this post is really skirting the edges of e-discovery, but if you see the issues I see, perhaps you'll agree it's relevant to us.  California has passed a bill into law, SB 748, which makes it a misdemeanor to post information about witnesses or their family members online with the intent to intimidate.

Where it intercepts our world is that there's an opt-out requirement that forces search providers to take down information within two days of receiving a request from a witness or face a $5,000 fine.

Never mind the logistics of policing such a requirement, I can see it now; subpoenas flying all over the place from the District Attorney's office compelling search providers to provide the identities of those who posted the information online and the search providers refusing to comply with the subpoenas.

Could this be construed as compelling a private entity to act as an arm of the government?

For more, click here.

Kroll: Corporations Need to ‘Walk the Talk’ on ESI Management

Kroll Ontrack's Third Annual ESI Trends Report found that a majority of 461 U.S. and U.K. corporations with 500-1,000 employees that responded to an online survey (conducted by Research Plus) had a document retention policy in place but less than a majority of them (46 percent of U.S. and 41 percent of U.K.) had an ESI discovery readiness strategy. To Kroll, those survey respondents "talk the talk," but they also need to "walk the walk." A retention policy without an e-discovery strategy leads to a false sense of security that a document retention policy is adequate to protect an organization when litigation and e-discovery ensue. And that assumption is not a leap of faith that falls short.

Using a document management system and retention policy to "go left" of the Electronic Discovery Reference Model calls for managing content. Part and parcel of managing content is managing the inherent risk in content that may trigger a lawsuit or an investigation. And you manage the risk by developing a strategy for it, i.e., for litigation, which includes a strategy for e-discovery. Another way to look at this is from box seats on the 50-yard line. Send a receiver wide left, throw him or her the ball, and simply say: "good luck." Without further support, the receiver is not going to get too far.

The ESI Trends Report had a few other findings I found of interest. For example, a large number of companies increased their spending for ESI, but another large percentage said hey did not have a mechanism to suspend their document retention policy. "What are they buying?" Regina Jytyla, a staff attorney at Kroll, said the figure represents general spending for in-house legal departments and can include technology, people and outsourcing. To me, the corporations that were surveyed, nearly one-half of which had to produce ESI for litigation, need a better mix of technology and people – especially considering the fact that most of the content out there is ESI.

Another topic I found interesting was that role confusion, vernacular barriers and budget ownership still leads to contention between IT and legal when litigation strikes and that differences in legal and technical expertise challenge the collaboration between IT and legal that is necessary to comply with e-discovery requests. This sounds like the legal department needs to take ownership and recognize that they have a project to deal with that has a client, multiple stake holders and a long tail. After all, litigation is a legal process, right? I don't see the IT department knocking on legal's door when IT wants to upgrade servers, right?

Informative Graphics Goes ‘SharePoint’

Informative Graphics Corporation launched its latest versions of Brava Enterprise and Redact-It Enterprise with SharePoint 2007 integration. SharePoint users can now use Brava's viewing and annotation features, including term-hit highlighting, which allows you to pick up search terms used in SharePoint and apply them to the document in view. In the redaction department, Redact-It aims to monitor specified SharePoint document libraries or network folders and automatically apply configured redaction criteria.

Put a microscope in your computer

Seems like a lot of things are coming to a computer near you: movies, TV, microscopes. Yes, microscopes for the forensic examiner. Dazor's speckFINDER HD digital computer microscope gives forensic scientists the ability to see precise details of evidence in high definition magnification in a computer format.

I can't remember how many times I needed some detail on a motherboard only to borrow my dentist's funny-looking glasses. Now I have more options with Dazor.

Dazor brings together optics, digital cameras, LED lighting, glass displays, personal computing electronics and mechanics to produce the speckFINDER HD, a digital computing microscope with an ergonomic design using flat panel digital display that allows multiple people to view magnified images simultaneously and effortlessly.

Stratify sweeps left [of EDRM] with eVantage

Stratify, a subsidiary of Iron Mountain, introduced eVantage, an on-premises, early case assessment tool for e-discovery. Did you catch the word: "early." This may become one of Monica Bay’s stop words. But it’s too early (sic) to tell. Of course, "left" might too. It all depends on if the EDRM migrates with all this leftness.

For Stratify, the news is that they will deliver a box on site that can: process data (over 300 file and archival formats, including Encase, FTK, Exchange); remove system files and detect duplicate and near-duplicate data; search multilingual data (Chinese, Japanes, Korean, etc.) using complex Boolean and faceted search strategies where facets equal domains, custodians, e-mail senders and receivers, etc.; and offers intelligent ways to conduct first-level review and data analysis by e-mail threads and identified concepts and groups.

Now, if you can tell the difference between this left-of-center, early-case assessment tool from others, without more, my hat is off to you. But if you add the fact that eVantage scales up to Stratify Legal Discovery Service for hosted review for matter management and support for distributed review teams and disaster recover, then I will keep my hat.

The real distinguishing factors for early case assessment tools are licensing costs and services and support in the event that your early case assessment spells big trouble. It appears that Stratify is ready to go the distance with your data. Make sure your vendor can either go that length and/or provide you some assurance that you can take your data down the street in a heart beat if you need to.

'Early' now the operative word for 'case assessment'

With many e-discovery vendors announcing new products aimed at getting attorneys to review critical documents earlier, rather than later, you would think that we are a procrastinating lot that cowers under our desks waiting for issues to abate rather than mature to a court date. But that’s not the case.

Having the ability to look at documents early, when there is the potential for litigation or when a government investigation looms, will give you an idea of the strength or weakness of your case, and possibly the strength or weakness of your opponent's case. It only makes sense to see the information early. That will give you time to plan the litigation -- or allow for an early settlement.

That said, Epiq Systems has launched IQ Review to give corporations and law firms more choice in evaluating documents, earlier. And it appears to be taking some lessons learned from TREC: incorporating human feedback into iterative search results.

IQ Review incorporates new "prioritization" technology into Epiq's document management platform, DocuMatrix. A legal expert "teaches" the software to identify documents as responsive or nonresponsive. Learning from the expert, the technology determines patterns in content across all of the data, rates each document, and fast tracks the most responsive to the beginning of the review -- the result is intelligent "Prioritized Review."

By reviewing the most responsive documents first, the legal team can make decisions on strategy earlier. Time spent on documents inconsequential to a case diminishes, along with review costs.

Client testimonial:

Vince Neicho, Allen & Overy litigation support manager, says that "Cases have become more complex as potential evidence can be hidden through an elaborate maze of email attachments, large document files, and text messages. Epiq’s IQ Review helps lawyers better understand the data and achieve the best possible outcomes for their clients more quickly."

For more information:

http://www.epiqsystems.com

Tel. (800) 314-5550

E-mail: http://www.epiqsystems.com/contact.php

Calif.'s "Initial" M&C & Clawback Provisions

Just a quick note to inform you that the California Rules of Court (C.R.C.) 3.724 Duty to Meet and Confer have been amended as of August 14th, 2009 to include provisions for initial meet & confer and clawback agreements.  This addresses what many of us in California identified as a gaping hole in the California Electronic Discovery Act (CEDA).

More details here...

Storage, an evolving concept

It has been a long time now since storage was simply just a bunch of disks, or JBOD. Storage vendors have continued to evolve and make themselves relevant to user needs to stave off the effects of commodization. Today, you not only buy JBODs, but you also purchase features to manage and archive your data. With this in mind, EMC’s agreement to purchase Kazeon should not be a surprise.

Man Blames Child Porn on his Cat

In a strange variation of the "dog ate my homework" a 48 year old man in Jensen Beach, Florida, blamed his cat for the child pornography on his computer. Mr. Griffin was arrested after police somehow found over 1,000 child porn mages on his computer. According to the Associated Press report, Griffin told deputies that his cat jumped on the computer keyboard while he was downloading music. He said that he had left the room and when he returned found "strange things" on his computer. Griffin claims that his cat frequently stepped on his keyboard. The accused was obviously telling the truth as the photo clearly corroborates his story. Still, the Florida police did not believe him! They may even have impounded the cat too, who is a known convicted feline. I'll let you imagine a few other funny remarks. Anyway, Mr. Griffin was charged with 10 counts of possession of child pornography, which is no laughing matter. He is now in Martin County, Florida jail and is likely to be there for a long time unless he posts a $250,000 bond.

Free E-Discovery Tools that May Be Worth a Bundle

Lawyers miss being toe-to-toe with the evidence. We want to attack ESI with the same hands-on "can do" capabilities we brought to bankers boxes.  For that, everyone from solos to senior partners need simple, powerful desktop and/or web-enabled tools to search and review client data. 

The proletarian tools I imagine haven't surfaced.  The good stuff isn't cheap, and even much of the pricey stuff is relentlessly ho-hum or clunky as hell.  We need, "Quickbooks for ESI:" a tool set that's as intuitive to use, affordable and easy to master as Intuit's ubiquitous accounting application.

Two "free" tools lately hit my radar screen.  Download them, try them and see what you think.  One is a truly free utility that makes the contents of forensic computer images accessible to any Windows user.  The other is a fully-functional demo of an EDD search and review platform that isn't quite there but gets so tantalizingly close in some respects that I urge you to play with it and tell its Aussie developers how to get it right.

The Aleynikov Affair: From Newark with Code

In D.C. last week, I spoke to a group of data security specialists and computer forensic experts about the type of case I see most frequently.  Unlike most in the audience, I work in civil litigation and see little of the child porn, identity theft and hacking cases that occupy them.  Much of my work concerns alleged employee data theft, so I addressed the prevelance and patterns of those cases, discussing incident response fundamentals, e.g., what to preserve and where and how to look to determine the whether, when, who and how much of proprietary data theft.

I was fortunate the day's big news story was of a lately-resigned senior programmer at Goldman Sachs arrested at Newark airport for allegedly spiriting away a copy of Goldman's trading program code.  My topic seemed ripped from the headlines.

New Technology Awareness - Google Operating System

This week the most visited website in the world, Google, announced their plans to market the new Google operating system called Google Chrome OS.  Most Personal Computers (PCs) currently run on operating systems from either Microsoft or Apple.  Unlike Microsoft and Apple, the Google Operating System is an open-source project so many outside developers are likely to develop on it.  Another benefit is that Google is offering this new operating system for free. We are yet to see how the marketplace will accept the new Google Chrome OS, but one thing is sure that this will shake up the PC market.  We may soon be seeing electronic discovery requests that involve the Google Chrome OS so asking the question of a custodian "Is it a PC or Mac?" may not be enough.  Our new line of questioning may need to be "Is it a PC with the Microsoft OS, Google Chrome OS or a Mac?". 

If SharePoint is the Archimedean Point for an organization, then …

Vendors and service providers need to support that point. And that’s just what Kazeon Systems intends to do with eDiscovery SharePoint Manager, which aims to use SharePoint as both an ESI source and target.

On the collection side of e-discovery, SharePoint Manager features forensic collection, data verification and audit, and exception reporting. It also offers in-depth processing for SharePoint data and metadata, with legal hold management and configurable workflow settings. And, there are some vantage points to all the data collected and processed.

SharePoint Manager includes analytics, search, and visualization of SharePoint data to get an early case assessment of a project or investigation. This will help counsel remember “The Gambler” when it comes to assessing litigation: “You got to know when to hold 'em, know when to fold 'em” and “Know when to walk away and know when to run.” And it can be that easy when you know what’s in your hand.

Historical Supreme Court Nomination

This is an important day in history as we, the people, may see our first female hispanic Supreme Court Justice appointed.  Today, President Obama nominated Judge Sonia Sotomayer to replace Justice Souter on the Supreme Court.  Judge Sotomayer is an accomplished woman with degrees from both Princeton and Yale.  She comes from a humble background and was touted as still remembering her roots.  She has been accepted by both Democrats and Republicans as their nominee of choice in the past.  In 1992, she was appointed to the United States District Court for the Southern Discrict of New York by President Bush.  In 1997, she was appointed to the Second Circuit by President Clinton.  My hopes is that everyone will take the time to read more about her.  We all must read her  decisions and not just the ones noted in the news.  I am doing my research now on her opinions and hope to uncover ones that include her viewpoints on eDiscovery.  I will continue to post my findings and hope you will comment here with your personal findings.