EDD Update

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.

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.

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.
  
  

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?

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.

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:

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!

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.

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).

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?

More on Kroll Acquisition

From yesterday's Law Technology News website:

By Monica Bay

Altegrity today announced plans to acquire Kroll from Marsh & McLennan Companies, in an all-cash transaction valued at $1.13 billion the companies announced. Kroll offers a range of security and technology services, including investigations, financial advice and intelligence, and more.

Altegrity is owned by Providence Equity Partners, a global private equity firm. The transaction is expected to close by September, assuming the usual approvals. Altegrity's CEO Mike Cherkasky served as president/CEO of Kroll from 2001-2004. MMC turned to Wachtell, Lipton, Rosen & Katz for legal counsel; Debevoise & Plimpton aided Altegrity and Providence.

Among Kroll's entities is Kroll Ontrack, which offers a range of services, software, and consulting to help legal, corporate, and governmental entities (and consumers) deal with data, including data recovery services. Kroll Ontrack has a high profile in the e-discovery community; it ranked as a top 5 overall services provider in the final Socha/Gelbmann e-discovery survey in 2008. In the same survey, it ranked in the 11-15 category for its software.

Core Four and the Quest for WORLD PEACE

When I was a law student at the University of Texas, I studied Texas Civil Procedure and Trial Advocacy from an Austin Cicero named Pat Hazel.  Professor Hazel practiced law, and tainted thus, stood out among the Ivy League academics who dominated the faculty.  One of the many practical tips I picked up from Pat was an easy way to remember the steps to introduce a document into evidence: MIAO (pronounced "meow") for Mark, Identify, Authenticate and Offer.  It's a simple mnemonic, and one that's served me well in the crucible of trial.

I reflected on the benefit I reaped from that mnemonic today as I wrote an an attorney struggling with e-discovery (is there any other kind of attorney these days?).  I was trying to cajole him to use better practices in meeting his discovery responsibilities.  My mnemonics were far less easy or elegant than MIAO, but perhaps the Core Four and WORLD PEACE will help you come up with something better still.

3 TB Drives Coming -- Ready or (Most Likely) Not

Now and then, I pause to marvel at how far we've come in certain aspects of consumer computing and how little we've progressed in others.  The iPads and handhelds aside, advances in personal computing have largely leveled off.  Save the Great Leap Forward of connectivity, the personal computing experience of 2010 isn't that much different from 2000, is it?  Cheaper, to be sure, and generally better designed, but much of what we do locally on a machine is the same. 

Even those largely meaningless leaps in processor speed that drove PC marketing in years past have quieted down.  Like most of us, processors are getting wider not faster: dual core, quad core, dual-quad core, etc.

But there's an area of the personal computing experience where the progress has been stunning, and has had as marked an influence on e-discovery (and computer forensics) as Judges Scheindlin, Rosenthal, Facciola and Grimm combined.  That's storage, particularly the explosive growth in areal density of hard drives.  We are about to hit a milestone that struck me as unattainable and fantastic just a few years ago: the three terabyte local drive for the desktop.  And it means new operating systems are here just in the nick of time.

Spoliation at Street Level?

An article in today's New York Times describes how Google "inadvertently" collected years of "private information" from unsecured WiFi networks usings its Street View mapping vehicles.  It might have been a tempest in a techno-teapot but for Google's earlier denials of having done such a thing.  It raises two e-discovery questions for you:

1. Should Google anticipate a claim or suit arising from this matter such that preservation obligations attach under applicable law?

2. If so, how and when can Google act on its professed desire to delete the data as soon as possible?

Uptime Uncertain

A tad off-topic, but the release this week of Office 2010 and its new, free web counterpart got me thinking about whether web productivity apps will soon replace standalone apps. Is the answer tied to the similarities and differences between connectivity and power?

Are We Paying Five Times Too Much for E-discovery?

The problem with proportionality analyses is that they make no provision for distortion of cost attributable to incompetence and disorganization.  They simply accept the unacceptable and make it their baseline.

 

Each time I read lawyers' assessment of the justice system as "broken" and see e-discovery blamed, I wonder if the commentators bring sufficient skill respecting ESI and information systems to the table. Are they using cost-effective methods and forms?  Are they fully conversant in the nature, location and volume of the client's systems and ESI?  Have they been transparent and cooperative in dealing with the other side?  Did they really perform well, only to find themselves at the mercy of a craven opponent and crazed judge?  Or are they conveniently ignoring how their own failings with ESI contribute to waste and excess?

Are Custodial Preservation and Collection Efforts Dead?

Remember the slapstick of trying to drive for the very first time?  You hit the gas and rocket away then slam on the brakes and nearly kiss the windshield.  Gas.  Brakes.  Gas.  Brakes.  New drivers know only zoom and screech.  Modulation takes time.

 

I'm reminded of this bipolar behavior reading cases questioning the adequacy of custodial-directed preservation and collection of ESI.  Some think custodial-directed preservation and collection efforts are dead.  I don't. 

Giving E-Discovery the Finger

One of the most important innovations in electronic discovery emerged two weeks ago, with nary a note from the blogosphere.  But, the leap for EDD is real.  That innovation is the iPad. 

Hey, I see all the eye rolling, but before you think I'm just another geek who's slavishly joined Jobs' conga line, understand that I'm not talking about the iPad per se.  Sure, it's a gorgeous piece of digital hand candy and, like the Kindle, it will influence technology's trajectory in a powerful and insidious way.  But, I think the influence on e-discovery will spring less from the device as from widespread acclimation to its ingenuous gestural interface on a page-sized scale.

Mo' Shira

Hot Talk: New York District Court Judge Shira Scheindlin's Pension Committee ruling remains Topic A in e-discovery circles, with her assertion that screw-ups on litigation holds can often constitute "gross negligence" and subject parties to severe discovery sanctions.

Many folks are analyzing the case in the context of another recent decision by Texas judge Lee Rosenthal, Rimkus Consulting v. Cammarata. 

There has been a lively debate on these two cases here in our EDD Update blog, including this post from Ralph Losey,  and this post from John Jablonski. In our upcoming May issue of Law Technology News, we'll have two more articles on the topic, including Craig Ball's analysis in his Ball in Your Court column.

Here's a recent article from the New York Law Journal, by partners H. Christopher Boehning, Daniel Toal, and  associate Rebecca Kinburn, of Paul, Weiss, Rifkind, Wharton & Garrison.

Editor's note to newbies: You can use "categories" in the right nav bar to help you find case verdicts, settlements, and rulings more quickly -- or search for other specific topics within EDD Update. 

The So Called "Conflict" Between Judge Scheindlin and Judge Rosenthal is Just Fake News

I for one am tired of all the newscasters on TV screaming BREAKING NEWS all of the time over every little thing. TV News has become bogus theatre half of the time, and it is getting harder to tell which half is which. If only reliable Walter Cronkite type of reporting would come back, but then that would be bad for ratings. News is just entertainment, and poorly funded at that. Now this tendency towards sensationalist fake-news is starting to spill over into e-Discovery. The law, and those of us who dare to report and comment on the law, should be exemplars of truth and honesty and not stoop to this. We should emulate Walter Cronkite, not the latest screaming head on cable TV.  

I am sorry to ruin the battle-of-the-judges parade, but there is no big conflict between Judge Scheindlin's Pension Committee v. Banc of America Securities, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), and Judge Rosenthal's Rimkus v Cammarta, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010). There is no fight between these two scholars of procedure as some sensationalists would have you believe. This is just a common example of like-minds examining different factual scenarios in different jurisdictions. My blog this week throws water on the sensationalist reports and explains res ipsa loquitur too. It will never make primetime news, but I think Walter would approve. To continue reading, see: Judge Rosenthal v. Judge Scheindlin: A Bogus Battle. That's the way it is.

An Open Letter to Judges About Computer Forensic Exams

 Your Honors:

I just read another opinion where the Court decided to let one side's computer expert examine an opposing party's computers. The Court seemed more concerned with who would pay for the exam than what its consequences might be.

I'm a lawyer and computer forensic examiner, and I make part of my living doing just the sort of examinations the court ordered.  I've done a whole bunch of them.  So, while part of me wants to encourage courts to order more forensic exams — and I can surely attest to their efficacy in resurrecting data thought gone and exposing case-making evidence — the angel at my ear requires me to softly whisper, "WHAT THE HECK WERE YOU THINKING, JUDGE?!? 

Why didn't you use a neutral?

I could say, "You never know what a computer forensic examiner will find," except I KNOW what we find: We find trouble.

Law.Com's Legal Hold Series Links

Thank you to www.ediscoveryreadingroom.com for the following kind post and links to all eight parts in the Law.com series:

Legal Holds: a great series of primers from John Isaza and John Jablonski

A litigation hold is as an affirmative act by an organization to prevent the destruction of documents, including ESI and paper relevant to a lawsuit.   Law.com recently published a series of articles that provide an overview of the steps necessary to implement a legally defensible, written litigation hold and are based on the ”Seven Steps for Legal Holds of ESI and Other Documents” (ARMA International 2009) by John Isaza and John Jablonski.   The seven steps for legal holds are designed to help organizations tackle the seemingly daunting task of implementing written litigation holds. Here are links to each part of the series:

Step 1 for Legal Holds: Trigger Events
Step 2 for Legal Holds: Analyze the Trigger Event
Step 3 for Legal Holds: Define the Scope
Step 4 for Legal Holds: Implementation
Step 5 for Legal Holds: Enforcement
Step 6 for Legal Holds: Modification
Step 7 for Legal Holds: Monitor and Remove  
Oversight: Overseeing the Steps for Legal Holds

We added the link to the Oversight article.  The original post from The E-discovery Reading Room is available here.

Judge Andrew Peck & Craig Ball Discuss Costs

Magistrate Judge Andrew Peck and Craig Ball share their discussion about Ball's column in the February issue of Law Technology News: (Feel free to dive into the discussion).

Judge Peck:
Craig, I read your article re: recoverable costs with interest (I always enjoy your articles). However: at least in the Southern District of New York (and I believe most federal courts), recoverable court costs for copies have traditionally been limited to copying trial exhibits (or getting records certified or similar costs not relevant to your article).

Thus, if a party produced 10,000 pages in discovery, that copying cost would not be recoverable -- but the cost of copying the 100 trial exhibit pages would be.

So I see very little opportunity to recover e-discovery costs via Rule 54 and 28 USC.

Am I missing something?

Craig Ball:
Your Honor, thanks for the kind note.; You're not missing anything.I see that in the SDNY, the rules are interpreted in a very conservative way to shift little expenditure as costs. But, this is by no means standard, and it's the unpredictability among the circuits that moves me to argue that the subject needs to be sensibly standardized, especially where we are talking about big bucks (and with e-discovery, what other discussion is there?).

Losey & Baron Search Debate, Judged by Grimm

At LegalTech New York a few weeks ago, Jason R. Baron and I staged a debate over search strategies and cooperation ethics. I have now written a detailed article on the debate topics with analysis and background information. It is called The Multi-Modal “Where’s Waldo?” Approach to Search and My Mock Debate with Jason Baron. 

As usual I stir up the pot with my blog and conclude with criticism of the movements underfoot to change the rules again, or drastically reduce e-discovery, or do away with it altogether. That is not the solution to over-expensive discovery. The solution, as I explain in the article, is smarter, more cooperative search. I also criticize those vendors and experts who still promote last century's keyword search models resulting in over-retrieval and over-review. I don't name them, but we all know who they are. But I go beyond just criticism and offer a specific proposal called the multi-modal Where's Waldo? search method. Don't know what this means yet? Read the blog and find out. Only last century losers still play Go Fish keyword guessing games. All the cool kids are now playing electric Waldo.

Climb a Mountain and Have a Mimosa

On Monday, Iron Mountain announced their acquisition of Mimosa Systems. Iron Mountain is synonymous with data storage and is a household name among IT professionals.

Lawyers, however, are probably not as familiar with the company and so I wanted to provide a few thoughts on why this news is significant from an e-discovery perspective.

Iron Mountain has historically been associated with off-site storage for paper and digital data. The namesake of the company is the iconic Pennsylvania mountain where the company stores some of the world's most valuable treasures 220 feet below ground in a hyper-secured limestone cave.

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.

Old Wine in New Bottles

Sunday affords the leisure to read the obituaries of the late Gen. Alexander Haig, who regrettably will be best remembered for his humiliating, Constitutionally-clueless 'coup' when President Reagan was shot in 1981.  I was in the University of Texas Law School Library where they'd set up a TV by the circulation desk when Gen. Haig  announced, "“I am in control here, in the White House.”  He seemed anything but, and one had to wonder what calamity had befallen the Speaker of the House and President Pro Tem of the Senate while we waited for the Vice President to take the helm. 

But thinking of General Haig (who ascended from colonel to four-star general in just five years in the Nixon White House), brings to mind the Nixon Watergate experience, the Reagan Iran-Contra Scandal and their parallels to modern e-discovery.

I posit that Nixon's Watergate gave birth to e-discovery, and Reagan's Iran-Contra scandal cemented its power.  Each demonstrated how storing self-immolating communications electronically--and subsequent efforts to eradicate them--will prove a litigant's undoing.

SLUT

Author's Note:   The theme for this post sprang from the offhand comment that, "EDna has to be cheap and easy."  I contrived that EDna, a made-up character, had a penchant for promiscuous behavior during the strait-laced seventies.  I ridiculously posited that male law students might have been drawn to sexual misadventure with a fetching lass of a sporting nature.  EDna, I imagined, was (in the argot of those with moral compasses truer than mine), a tad "slutty."

Humor about sex isn't everyone's cup of tea.  Based on the comments that follow, I missed the mark.   Some readers felt my Satyrical attempts at humor crossed their lines.  I am chastened, and henceforth, EDna is chaste. 

I've gotten all sorts of interesting feedback on the EDD for Everybody article A/K/A "The EDna Challenge" that ran in the January 2010 issue of LTN.  I'm fascinated by the number of vendors and developers who claim to be poised to introduce an integrated "solution" or contend their existing product could meet the challenge...so long as something is changed to make the challenge less challenging.

Folks, when you think of EDna, I want you to think CHEAP and EASY.  Of course, here I mean the EDna Challenge, not my hypothetical law school classmate (though she was extremely popular).  Need an acronym?  How about, Simple, Low-cost, Utile and Total end-to-end management of ESI.  S.L.U.T.

Seriously,  the EDna challenge solution could be as ubiquitous on lawyer desktops as Adobe Acrobat.  We're talking tens of thousands of potential users, near term.  Not just every desktop of every big firm litigator, but the desktops of all those trial lawyers that are part of the 70-80% of lawyers nationally that practice in law firms of 5 lawyers or less, and every solo.  Don't forget their assistants and support staff. 

What do you call someone who gets the lowest passing grade on the Bar exam?

Guest lecturing at an e-discovery class at UT Law School today left me feeling a tad discouraged.  I'd covered the fundamentals of data storage, the broad components of an enterprise IT environment, Unicode and a bit about keyword search.  In 50 minutes, there's only so much I can do, and with little depth or nuance.  Afterward, a third-year student in the class confided that he'd thought I'd gone pretty far "into the weeds" and wondered if he would really need to know this stuff.  He asked why he couldn't just hire someone to handle the e-discovery issues in his cases.

Re-Visiting Biller v. Toyota

I blogged about this Federal 9th Circuit case a few months ago and at the time commented, "This is one to watch."  Well, it's time to watch.  The gist of the case involves a former Toyota attorney accusing the firm of spoliation related to data on defects. 

As the "gas pedal" issue has become prevalent, this case takes on new meaning.  Here's what I wrote about it back in September, and an update I posted earlier today:

From September 24, 2009

Today's update

Doctors v. Lawyers re: e-Documents

The American Recovery and Reinvestment Act of 2009 allocated $19 billion to help doctors and other health care providers buy and install electronic health record systems, with the agenda of creating an integrated national Health Information Network to improve health care and reduce costs.

Robert Hudock and Jason Christ, both senior associates at Epstein Becker & Green, take a look at how the health care system compares to the legal industries adoption of e-discovery collection and production practices, in "Electronic Discovery: A Special Report," in The National Law Journal (registration required).

Craig Ball: EDD For Everybody (a.k.a. The EDna Challenge)

Most discussions about e-discovery focus on big firm, big budget litigation, but even small cases involve electronically stored information. What's a small firm attorney to do when she faces the courtroom with a relatively small matter?

Craig Ball comes to the rescue with the help of key players in our legal technology community. In "EDD for Everybody," Ball sets up a hypothetical case. In it, "Edna" who is handling a construction dispute, anticipates that the number of possible files will be somewhere between 50,000 to 100,000 items.

What advice would you give? See what your peers (you'll recognize a lot of folks from this blog!) suggest in the EDD Showcase in the January edition of Law Technology News.

Cecil Lynn: Back to the Future

It's been three years now since the electronic data discovery rules were added to the Federal Rules of Civil Procedure, and the number of reported cases involving electronically stored information has skyrocketed. But some lawyers still "simply do not anticipate (or woefully underestimate) issues related to ESI," says Cecil Lynn, of counsel to Ryley Carlock and Applewhite.

In "Back to the Future" in the January issue of Law Technology News, Lynn chronicles key 2009 rulings, finding that most of them are reiterating established principles. Lynn looks at everything from the increasing clarion for "cooperation," and issues around form of production, to failure to preserve, sanctions, discovery abuse, and more. It's part of our EDD Showcase.

Want more? Check out our Law Technology Now podcast, where Cecil Lynn joins me as a guest to further explore the 2009 EDD rulings -- with a special bonus: a cameo appearance by ALM's Henry Dicker, who offers a sneak preview of LegalTech New York.

Ball in Your Court: "EDD Bill of Rights"

In January's Ball in Your Court column, Craig Ball argues that it's time for a "Bill of Rights" for requesting parties who seek electronically stored information from their opponents. Requesting parties, he insists, have rights -- and duties -- during litigation.

Among the rights, says Ball, an Austin, Texas-based attorney and forensics consultant, is that ESI be produced in the format in which it is kept in the usual course of business; and that the producer clearly and specifically identify any intentional alteration of ESI.

Among the duties: an obligation to anticipate the nature, form, and volume of the ESI under scrutiny, and tailor requests to minimize burden and cost of securing the data. Read more in the current issue of Law Technology News.

Craig and I will be speaking Thursday (Jan. 21) at the New York City chapter meeting of Women in E-Discovery. It will be held at noon, at Credit Suisse, 11 Madison Ave., floor 2B, in the Club room.

To RSVP please visit newyorkcity@womeinediscovery.com. We hope to see you there!

Court Finds $834,285 to Process ESI Extravagant, Issues Sanctions

In a must read decision for attorneys, consultants and ediscovery vendors, the Court in a well-written opinion chastised and awarded attorney fees and costs against the defendant whose IT representative "exaggerated" the cost of processing ESI.

Starbucks Corp. v. ADT Sec. Servs.,2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009).  In a breach of contract and fraud case, Starbuck's brought this action based on ADT's installation of  proprietary security systems in violation of the contact between the two parties.  After filing the action, Starbucks filed a motion to compel to obtain archived e-mails from the defendants. The Court discussed in detail ADT's archived e-mail systems involving the storage of e-mail from 2003 - 2006. ADT argued the system was was "so cumbersome, . . . that it is not 'reasonably accessible because of undue burden or cost.'"  ADT argued it was not accessible because of their selection of an archiving system that failed in its essential function of allowing ESI to be searched. . . . (read more).

Did We Really Need EDD Procedural Rules?

Mistakes are, after all, the foundations of truth, and if a man does not know what a thing is, it is at least an increase in knowledge if he knows what it is not. - Carl Jung

Three years later - did we really need to amend the federal rules for ediscovery?  On December 1st, 2006, changes relating to “electronically stored information” (ESI) in the Federal Rules of Civil Procedure took effect. The changes to Rules 16, 26, 33, 34, 37, and 45 provide mandates to the preservation, discoverability, production, accessibility, and costs associated with ESI which includes e-mail, word processing documents, spreadsheets, voice mail, databases and more.

Over the last 18 years I have been writing on how to apply technology applications to the practice of law and eight years ago I began my initial research of court cases and procedural rules focusing on discovery of electronic information.  During that time the amended ediscovery federal rules were being proposed and hearings held across the country to determine whether the procedural rules should be changed to adapt to the digital world. I remember sitting through a proposed amendment discussion at Fordham University thinking “what technology has wrought – technology will solve.”   In fact, during all my presentations over the last several years, this has been one of my closing comments. (Read more . . . )

Delatio Electrics (by Babs Deacon)

I turn the mic over to Babs Deacon, director of consulting at  Integreon, for a guest post: 

Whether  e-discovery is in its infancy or toddlerhood, it will never get the respect it deserves until it has its own Latin phraseology.  New Year’s 2010 seems like a good time to initiate a set of ediscovery terms that Cicero might have used had he been litigating today.

Think just how forceful you’ll sound at your next 26(f) when requesting opposing counsel’s production in forma ingenitus  - in native form, or backing up your request by saying, “Nativus Ipse loquitor.”  The native file speaks for itself, to the judge.

Conversely, a strong, classical stance may just what you need to avoid sharing any native meta data, with the assertion, “Proferabo solum saxibus.”  I shall produce only in tiff.

Naturally, a motion for sanctions requires the strongest language.  Referring to the responding party’s mangled data as, spoliatus in extremis, will really make an impression and tossing out the phrase, Misura Quinta – Hash5 sounds cutting edge and traditional.

Don’t forget that after hours, a little satire will impress colleagues, drop “Quis iudicat Iudicem Grimm ipse?” at the next Sedona cocktail party.

Chase Bank Criticized Re: Alleged Expenses for 3P Subpoena

Matter of Klein v. Persaud, 2009 NY Slip Op 52582U, 2 (N.Y. Sup. Ct. Dec. 21, 2009).

In this arbitration case, Chase Bank, a third party, sought expenses of $9,112.00 "for production expenses ($4,550.00 for time spent locating and retrieving documents and $4,562.00 for printing). The Court reduced the amount to "$1,192.10 for time spent locating and retrieving documents and $58.17 for printing 1,939 pages of documents."

The Court noted that. "[t]wo CPLR Rules deal with production costs for a non-party. CPLR Rule 3111 states that a deposition subpoena may 'require the production of books, papers, and other things in the possession, custody or control of the person to be examined to be marked as exhibits, and used on the examination. The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.' CPLR Rule 3122 (d) allows a non-party witness to provide, unless specifically directed to provide original documents, 'complete and accurate copies of the items to be produced.' Further, '[t]he reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery.' Production costs can include providing electronic discovery, such as e-mail."

The Court also noted that:

Holiday Greetings and a Tasty Tech Tip

It's Christmas, and from frigid Berlin, Germany, I wish all EDDUpdate readers and contributors a happy and safe holiday.  I hope you are warmly ensconced with families, friends and loved ones, enjoying your favorite foods, games, movies, stories, drinks...and e-discovery websites.  

Though post traffic has been sparse of late, and a bit of filler might be welcome, I don't want to set the bad precedent of personal greetings as posts; so, what follows is a technology tip I think you'll find useful, and that I hope serves as a not-too-transparent excuse to wish all a Merry Christmas, (belated) Happy Chanukah, Keen Kwanzaa, Festive Festivus or whatever you're using as a reason to celebrate and eat and drink to excess.

So now for the technology tip: food-themed, in recognition of the holiday.  

Supreme Ct Accepts E-Communications Privacy Appeal

The U.S. Supreme Court has agreed to hear an appeal concerning privacy rights to electronic communications. The case comes out of the  Ninth Circuit: Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). It involves an employer reading an employee's text messages, sexy ones at that, where the Ninth Circuit ruled for the employee. The Supreme Court could use this appeal as an opportunity to write an opinion that not only broadly impacts privacy rights of all U.S. citizens, but also impacts employee rights, public record disclosure duties, and the scope of electronic discovery. I have written about this case and the privacy rights issues many times on my blog, and am delighted to see the Supreme Court is willing to take a look at this area. My "emergency blog" post this week, right after the Supreme Court's announcement that it would accept certiorari, talks about the Quon case, the Court's acceptance, and how it might rule. (By the way, I finally have an easier to remember domain name for my blog: e-DiscoveryTeam.com.)

Great New Site: The eDiscovery Reading Room

The good folks over the The Posse List have recently launched their latest and greatest contribution to our industry: The eDiscovery Reading Room.  I find the site to be really well put together with a plethora of information for you at your disposal.  The site is broken up into several categories:

• Top Stories
• Electronic Discovery 101: Where to Start
• Corporate In-house E-Discovery: Some Basics
• Weekly Top 10 E-Discovery Articles
• Webinars
• And last but not least, an e-discovery blogroll WITH commentary on each blog.  Here is what they say about  EDD Update:

"A joint project of Law Technology News and Law.com Legal Technology, this is the place you go to find out what is happening across the e-discovery vendor landscape: who has partnered with who, what law firm chose what vendor, new versions of software and products, awards and accolades, breaking news, etc.

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!

What do The Sedona Conference, Supreme Court Justice Stephen Breyer, and Bob Dylan have in common?

Read my latest blog to find out. I'll give you a hint. Remember the song, Ballad of a Thin Man with this great line: 

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

Mister Jones has another name, Bill E. Boie. At least that is what my past blog guest writer, Bill Hamilton, head of Holland & Knight's e-Discovery team, called him in his great satire, the Non-Cooperation Proclamation.

The ESIs of Texas

Craig Ball's November column:

My home state of Texas was the first to enact a discovery rule dealing with electronically stored information. Years before the federal rules amendments, and in four simple sentences, Rule 196.4 addressed a litigant's right to discover ESI, the scope of e-discovery, forms of production and cost shifting. The rule was either so completely successful or so utterly ignored that it wasn't cited in a published decision for nearly a decade.

So, when the Texas Supreme Court — the state's highest tribunal — issued its first e-discovery opinion, I listened to oral arguments. In re: Weekley Homes, 52 Tex. Sup. Ct. J. 1231 (2009), concerned a litigant's right to directly access an opponent's storage media. The plaintiff wanted to run 21 search terms against the hard drives of four of defendant's employees in an effort to find deleted e-mails from 2004. I eagerly anticipated insightful arguments by advocates who grasped the important technical and legal issues afoot, but what I heard would make a hearse horse snicker. Judge for yourself by listening to the arguments at http://tinyurl.com/weekleyhomes.

Continue reading here

More Noise About Qualcomm Case

See Lawyers in Discovery Scandal Say Qualcomm Lied (from The Recorder)

Jolly Roger Justice

By Craig Ball

It's fitting that my friend (and author/blogger) Ralph Losey, hails from Orlando — the House of the Mouse — because reading his posts on EDD Update (www.eddupdate.com) is like a ride on one of the really good Disney attractions once called "E-ticket" rides.

Losey's animated prose takes wonderful twists and turns,punctuated by delightfully silly visuals — and all steeped in solid American values. I always glean something good from Ralph's scholarship, even if only a different, well-argued point of view.

Losey and I have a playful wager respecting the viability of Judge Nuffer's opinion in Phillip M. Adams & Associates, L.L.C., v. Dell, Inc., et al., 2009 WL 910801 (D. Utah March 30, 2009). I think the judge's opinion will stand (though pushing the outer bounds of preservation), but Ralph anticipates an appellate slap down.

Losey recently posted about KCH Services, Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D.Ky. July 22, 2009), and kindly noted that where he disagreed with me on similar issues in Adams, we were of one mind on Vanaire. Hearing that I'd stumbled onto an acorn of rectitude moved me to actually read the opinion. And, indeed, Losey is right to side with the judge. (In fact, one can make a pretty good living siding with judges.)

CONTINUE READING HERE

New Video of Two of the Top Judges in the Country Speaking about e-Discovery

My blog this week consists of an exclusive 15 minute, must-see video by two judges, Ronald J. Hedges and Craig B. Shaffer. Craig Shaffer is a U.S. Magistrate Judge in Colorado. Judge Shaffer is well known to everyone in the e-discovery world as the author of the Land O’Lakes opinion. Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC, 2007 WL 684001 (D.Colo. 2007).  Ron Hedges shown above is a former U.S. Magistrate Judge in New Jersey (1986-2007). Ron is well known to everyone in the industry as one of the leading lights from the judiciary. They took time this month to talk about what they think is important in e-discovery, including: advice on case management; staging; proactivity; ethics; proportionality; the proper use of vendors; the need to educate judges about your case; and, the special opportunities in e-discovery for young lawyers today.