Predicitive Coding in Andrew Peck's Court

In what appears to be the first federal case to adopt the use of predictive coding, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York in Monique Da Silva Moore, et al., v. Publicis Groupe and MSL Group, ordered the parties to adopt a protocol for e-discovery that includes the technology as implemented by Recommind's Axcelerate product.

Paul Neale, CEO of Doar Litigation Consulting and Gene Klimov, vice president of discovery consulting, advised the plaintiffs on developing a protocol for predictive coding that used quality controls by both parties to teach Axcelerate what is relevant and irrelevant through iterative sample sets. Peck agreed that "the [predictive coding] system is only as good as the training that it gets."

See LTN's technology editor Sean Doherty's analysis .

Image by Clipart.com

Thou Shalt Not Commit Adultery on Your iPhone

The smarter smartphones get expect their desirability to grow as treasure troves of digital divorce evidence. According to a post on AllThingsD, a smartphone is a divorce lawyer's perfect partner when it comes to procuring electronic evidence.

A survey by the American Academy of Matrimonial Lawyers finds 94% of the country's top divorce lawyers reporting an upturn over the past three years in the use of iPhones, Androids, and other smartphones as evidence in divorce cases.

Sixty-two percent of the evidence comes from not-so-surreptitious text messages, 23% from emails, 13% from call histories and phone numbers, and a mere 1% drawing on web searches and GPS. Given the number of social media apps on mobile devices, you might expect greater use of social media as smartphone evidence, but social media use may have been folded into another survey

There are no recorded instances of iPhone 4S users having virtual personal assistant Siri testify against its master or mistress, but one message should be clear: Digital evidence doesn't dissolve as easily as many marriages do.

Image by Clipart.com

Cowen Group Leadership Roundtable on IG, the Cloud

The Cowen Group returned to San Francisco this week for its breakfast leadership roundtable series. David Cowen organizes these events around the country to bring together thought leaders to share and exchange ideas on major e-discovery issues.

Corporate participants from Google, Apple, Genentech, McKesson, and major law firms focused on the specific challenges of information governance and e-discovery in the cloud.

The consensus was that the cloud (private, hybrid, and public) is a complex environment with a host of legal issues including security, privacy, and e-discovery. Many companies have been operating private clouds for years and are just now starting to put a legal wrapper around it.

Clustify Offers Tryout

Is concept clustering a concept missing from your company's or law firm's document review? Hot Neuron is offering the opportunity to try out its clustering product Clustify to see how well it speeds the process — free for the month of March.

Clustify's technology uses algorithms to group related documents into clusters, labeling them as categories. The software can then automatically categorize new documents as the project progresses, using predictive coding (aka technology-assisted review). Users can choose whether to cluster documents as similar by concept, similar as near-duplicates, or similar as parts of an email thread.

Hot Neuron CEO Bill Dimm, in a press release, emphasizes this is not an evaluation and urges users to apply the technology to "real case data." Is he trying to hook you past March? Could be. Is there a catch? Participants must sign a licensing agreement and attend a short training session on GoToMeeting. Interested parties can register here.

Press release.

Image by Clipart.com

Pippins Demonstrates Need for Uniform Preservation Rules

In her Feb. 3, 2012 opinion in Pippins v. KPMG LLP, (S.D. N.Y. No. 11 Civ. 377), District Court Judge Colleen McMahon denied KPMG’s request for relief from its obligation to preserve more than 2,500 hard drives of its former Audit Associates in the overtime wage case, at a cost claimed by KPMG to be $1.5 million or more. The plaintiffs sought relief under the Fair Labor Standards Act and New York law.

KPMG’s failure to provide any information about or access to the drives doomed its argument that the value of the drives was disproportionate to the costs. Without any sense of what the value was of the information on the drives, the court could not undertake any balancing of burden vs. value. As stated by Judge McMahon, “KPMG is hoist on its own petard,” (Op. p. 20). In other words, traditional stonewalling tactics can backfire on a party trying to limit discovery by arguing proportionality; even the slightest cooperation would have put KPMG in a much better position.

If there was a silver lining for those who oppose burdensome preservation obligations, it was that the court stated that, “[P]roportionality is necessarily a factor in determining a party's preservation obligations” (Op. pp. 18-19), thereby siding against those who argue that proportionality governs production but not preservation.

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.

Patent Pilot Discovery: Tip of the Spear

Check out the LTN article "Patent Pilot Discovery: the Tip of the Spear," by Mark Michels, which reports on Federal Circuit Court of Appeals Chief Judge Randall Rader's keynote speech at Stanford Law School on January 18, 2012, on the Patent Pilot Program.

The U.S. District Court for the Northern District of California is one of 14 districts selected by the director of the Administrative Office of the United States Courts to participate in the pilot program, which is intended to enhance expertise in patent cases among federal judges. See Pub. Law 111–349 (Jan. 4, 2011).

According to Rader, the pilot program paves the way for the "patent system to lead to an economically defensible adjudication model" in the United States. Rader cites the Federal Circuit Advisory Committee's Model E-discovery Order (reported in LTN's article "The Elephant in the Patent Courtroom") as one component of the patent bar’s leadership in reducing discovery costs.

Rader is passionate in his view that reducing litigation costs by limiting discovery burdens through the patent pilot program is the most critical first step on the path to reforming patent litigation in the United States.

New Proposed E.U. Data Privacy Regulations

The European Commission today proposed a comprehensive reform of the data protection rules.

Two principal documents frame the new data protection regulations: A proposed regulation that would apply directly to organizations and individuals, and a directive that would provide the basic requirements for police and judicial cooperation in criminal matters.

This single law will do away with the fragmentation and costly administrative burdens of the current E.U. privacy regulations. The proposals will now be discussed in the European Parliament and E.U. member states meeting in the Council of Ministers. It is expected that the new proposed regulations will not take effect until sometime in 2014.

See the European Commission website for full details.

Image: Clipart.com

EDRM Projects Advance Industry Standards

On January 24, 2012, those of us at EDRM provided formal updates from five of the EDRM projects — Data Set, IGRM, Metrics, Model Code of Conduct, and XML. EDRM provides a common, flexible, and extensible framework for the development, selection, evaluation, and use of e-discovery products and services. The advancements in each of the following projects are designed to further standardize the principles and practices utilized in e-discovery management as follows:

• Data Set  The EDRM Enron Email Data Set version 2 is now a public data set on Amazon Web Services. AWS hosts these public data sets at no charge to the community in order to enable faster innovation by researchers across a variety of disciplines and industries. For more information about AWS public data sets, go to aws.amazon.com/publicdatasets.

• Information Governance Reference Model (IGRM)  The IGRM project team and ARMA International recently published a jointly developed white paper, How the Information Governance Reference Model (IGRM) Complements ARMA International’s Generally Accepted Recordkeeping Principles (GARP).

The Story Behind Delaware’s Default Discovery Standard

Delaware has had default e-discovery standards since May 2004. LTN’s December 20, 2011 article Delaware's Default E-Discovery Developments, reported Delaware’s 2001 update to the standards.

One of the most significant additions to the 2011 Standard is an explicit proportionality provision. Other changes were designed to make the FRCP 26(f) conferences more productive. Today’s LTN post, The Story Behind the Delaware Default Discovery Standard, provides a look into the process and philosophy that led to these latest revisions.

When Kids Hit the Road

The Ohio Supreme Court has, at times, been on the cutting edge of expanding Fourth Amendment protections for digital information from law enforcement intrusion. In December 2009, for example, the Ohio Supreme Court held that even if a cell phone is lawfully seized incident to arrest, the Fourth Amendment prohibits the police from searching the contents of the cell phone without a warrant. But in a recent opinion, State v. Gould, No. 2012-Ohio-71, the Ohio Supreme Court went in another direction.

The case arose in December 2005. The defendant, after losing his job, moved in with his mother.

Tom O'Connor Joins Avansic

Tom O'Connor has returned to the vendor-side of e-discovery, joining Avansic E-Discovery & Digital Forensics as director of professional services.

He will serve as "the primary consultant for complex cases, providing professional services supporting data identification and preservation with an emphasis on litigation hold obligations and preparation for FRCP Rule 26(f) meet and confer sessions," said Avansic's president and CEO Gavin Manes. O'Connor "will also be instrumental in developing strategies for corporate clients in all markets to help them be more proactive in controlling their e-discovery costs," said Manes. O'Connor also will support the company's marketing and sales efforts nationwide.

Read more about what O'Connor sees as his top challenges in the new gig, here, including why O'Connor compares Avansic to LexisNexis.

Image: My favorite shot of O'Connor, taken several years ago in New Orleans, at a conference co-sponsored by his Gulf Coast Legal Technology Center, which helps practitioners affected by hurricanes and the British Petroleum oil spill adapt legal technology.

Algorithmic Editing: Now You See It, Now You Don't!

To make a user's experience personalized, companies are using so called algorithmic editing to custom tailor retail shopping services, news, search, and essentially everything we do on the web to our personal taste.

For example, Facebook monitors which friends you click the most, and edits your profile accordingly. It decides for you which friends most likely interest you based on past interactions.

Google uses this same technology for search, which means two exact searches by different individuals will yield completely different results. It uses so called signals (location, computer used, IP address, etc.) to define you.  This information “filter bubble” is quickly defining our universe which unfortunately does not accurately reflect the real one. 

Becoming data literate is critical to understanding the value and limitations of algorithmic filtering like predictive coding in e-discovery. The danger is that the technology is giving us what it thinks we want to see; not necessarily what we should see. 

U. S. Supreme Court Decision Expected in Jones Case

The United States Supreme Court will soon issue a decision in the GPS tracking case, United States v. Jones.  A decision from the Supreme Court permitting the warrantless use of GPS devices by police will not end the conversation, however.  State courts, applying state constitutions, may continue to restrict the use of these devices by law enforcement.

Read more here.

Regional EDD Service Providers Take Center Stage in 2012

Regional litigation support service providers are growing due to increased demand for managed services, analysis and review and strategic ediscovery consulting. They are becoming highly competitive compared to the national and global vendors in terms of price and services offered. For example, Minneapolis-based NightOwl reported that it realized significant growth last year and expects the same this year - with managed services at the top of their list. Reasons for this include:

1. The ability for regional providers to partner with national software developers to offer "best of class" products such as Relativity and Clearwell allow them to concentrate solely on delivering service and expertise. This provides a distinct advantage over national or global companies that split their attention between software development, service and focus points outside of litigation support.

Advancing the Technology Assisted Review Discussion

A rigorous ediscovery search analytics discussion continues to advance our understanding of technology assisted review.  Herb Roitblat’s recent post “On Some Selected Search Secrets” is a very thoughtful response to Ralph Losey’s exceptional blog series, the “Secrets of Search.” 

Roitblat’s punch line is interesting.  He writes that the current studies by TREC and others “were not designed to answer many of the questions we would like to ask” and that more studies are needed that address technology assisted review effectiveness.  Nonetheless, he concludes, that in some cases “human review is simply impractical within the cost and time constraints of the matter. Under those circumstances, something else has to be done to reduce that burden.”  That “something else” is technology assisted review.

Dodging a Bullet (For Now)

No Harm, No Foul for Data Destruction: Check out "The Risks of Failing to Preserve Patent Prosecution Files," an article I wrote for LTN's website. It discusses a unique patent litigation remedy for spoliation claims. In Metso Minerals, Inc. v. Powerscreen International Dist., Ltd, the plaintiff delayed filing its lawsuit for more than six years, raising a laches defense that would have significantly limited patent damages. The defendant claimed it suffered “evidentiary prejudice” because the patent prosecutor destroyed his files. The court ultimately rejected the laches defense.

The plaintiff dodged a bullet but risked a substantial damages limitation because the patent prosecutor destroyed his files. Metso is currently on appeal to the Federal Circuit.

The Successful Service Provider in 2012

Thomas Palladino, president of NightOwl, a Minnesota-based data management services provider, identified four key values e-discovery vendors are focusing on in 2012.

1. Smart document review combining analytics, predictive coding and attorney review services to reduce the cost and time involved in document review. 

2. Certified e-discovery specialists by the ACEDS organization. We will see more vendors adopting an objective standard of employing attorneys as project managers. 

3. Enhanced EDD security using two-factor authentication for all hosted platforms providing a stronger defense against unauthorized access.

4. Integrated managed services as an internal e-discovery system. Corporations will use vendors that are qualified to support a variety of existing technology, fully understand litigation and the eDiscovery process, and can offer full EDD services from cradle to grave.

Looking forward to New York Legaltech in February for an exciting first look at ediscovery in 2012!

Non-lawyer Perspective

Some perspective on e-discovery from non-lawyers.  Dr. Carolina Klien, a forensic psychiatrist from Saint Elizabeth’s Hospital in Washington, D.C., recently published an article in the Journal of the American Academy of Psychiatry and the Law entitled, “Cloudy Confidentiality: Clinical and Legal Implications of Cloud Computing in Health Care.”

Klein confirms what we know in her abstract: “Privacy laws that speak to the protection of patient confidentiality are complex and often difficult to understand in the context of an ever-growing cloud-based technology.” She highlights the challenge facing physicians:  “Just as information management in the digital era was finally getting worked out in legislation and practice, a new modality appeared, one that physicians may be ill-prepared to accommodate.” 

The challenge facing physicians is to adopt cloud-based computing to HIPAA. The attraction of cloud-based computing for medical providers is increased access to patient data through a centralized system. 

Mobile Security - Tips to Safeguard Your Devices

Mobile devices pose significant risks for sensitive corporate information. As lawyers become more dependent on mobile devices for their practice, they need to be cognizant of the significant security risk these devices present.

ViaForensics recently released its latest 80-page Mobile Security Risk Report.  Both the Android and iPhone risk is amplified by the fact that these devices tend to hold personal information for a long time by design, i.e, nothing is ever truly deleted.

Mobile devices have become easy to hack by remote exploits due to all the applications loaded on them. Hackers can now remotely jailbreak and root a device over the network which essentially provides the hacker with unrestricted access to the entire file system of the target mobile device.

The rush to develop user friendly apps has been at the expense of security. These apps collect and store a tremendous amount of information.  Even apps that appear to ask for no permissions during installation can become a back door to your phone. Check out appWatchdog for an objective analysis of various publicly available mobile apps.

Encrypting information on your device is not foolproof because encryption on both the iPhone and Android can been broken with minimal effort. Additionally, it is not that difficult to extract data from a passcode protected device as well.

To protect your mobile privacy:

1. Be cognizant of what you install on your phone and who the company is that makes the app.

Plaintiffs' Duty to Preserve

Littler shareholder Paul Weiner discusses the plaintiffs' EDD preservation obligations, in this article from our sister publication, the National Law Journal. 

"While the focus of electronic discovery is often on the defendant's information technology systems and data sources, litigants should not lose sight of the fact that e-discovery is a two-way street, and obligations apply just as forcefully to plaintiffs — who often anticipate litigation well in advance of any defendant."

The Growing List of Personal Data Available on Facebook

As litigators turn to Facebook for potential evidence on an individual, awareness grows that there is more personal data available on Facebook than many people realize. 

Strict European privacy laws have spawned privacy advocacy websites such as Europe vs. Facebook, which help shed light on personal data about users that Facebook collects and preserves. Unlike law in the United States, the European Union's "right to access" law essentially provides that every citizen has the right to get a copy of all personal data that a company holds about them. Recent personal data access requests to Facebook have identified more than 57 available data groups that can be potential evidence in a case. For example, removed friends (a list of all friends you have "unfriended").

The trick is how to capture and preserve that evidence in a legally defensible manner — either by subpoena, by using collection technology like X1 Social Discovery, or a combination of both. As we learn more about the complex layers of social media evidence, the inherent inadequacy of manual screen capture becomes readily apparent.

See the recent EDD Update post on Social Media meta data. 

 

House Judiciary Subcommittee Hearing Re: Rules

Update on Tuesday's Judicial Subcommittee hearing about whether or not EDD rules should be changed:

• Milberg's Henry Kelston report will be up shortly on the LTN website.
• Here's a link (hat tip to Mark Michaels) to the video webcast.
• Here's Sutherland's alert by Robert Owen.
• Here's a link to Evan Koblentz' preview story (with a comment from LTN's e-discovery columnist, Craig Ball).

Dive into the discussion!

Pippins Order Highlights Preservation Burdens

Writing in the New York Law Journal Dec. 12, H. Christopher Boehning (far right) and Daniel Toal (near right) discuss the Pippins. v. KPMG case and Magistrate Judge James Cott's decision, suggesting that "the resolution of KPMG's motion for a protective order has potentially fair-reaching implications and threatens to radically alter the scope of ESI preservation obligations."

Read it here. 

Images: New York Law Journal

2012 Top Cybersecurity Trends You Should Worry About

Imperva, which offers data security services, has predicted its top nine cybersecurity trends for 2012.

Hacking, the company notes, is inherently innovative — which has caused security to evolve dramatically from just one year ago. Because of that, they expect to see security decisions driven not by compliance but by security.

In the past, compliance regulations and standards such as PCI Security Standards Council, Sarbanes Oxley, and data privacy acts fed security budgets. However, as one CIO put it, “Security is not about surviving the audit.” It's about data security. 

Regulations intended to set minimal security standards make it too costly for organizations to respond on a regulation-by-regulation basis. Instead, they should implement security based on their needs and then evaluate if they have done enough in the context of each regulation.

Additionally, IT departments are shifting security strategy from trying to control data at the source, to regulating user devices, such as smart phones, tablets and custom personal laptops. Imperva's analysts expect this tactic will have limited success. Instead, companies should focus on the data stores and provide strict access control. 

Finally, Imperva reports that with increased supply and demand for sensitive corporate IP, they predict the rise of the so called "cyber crime broker" who will match buyers looking for stolen data with sellers of the data. Scary stuff for attorneys and their clients when dealing with highly sensitive corporate data that will be leaving the corporate firewall for processing and review.

The full report is available here.

 

Ediscovery Production Without Review

More law firms are producing electronically stored information without going through linear review. After potentially-relevant ESI has been collected and sent out for processing, the producing party is normally focused on boiling down the ocean of documents and identifying privileged documents for sequestering. Linear review of the identified subset has been the traditional last step and most expensive in the production cycle. 

Advanced analytics, judicial acceptance of computer aided coding, claw back/quick-peek agreements, and aggressive use of Rule 16 hearings have given attorneys a level of confidence that they can produce responsive ESI without spending time and money on a final linear review.

Reset — or Regress — to Neutral?

In our December issue of Law Technology News, Sutherland Asbill & Brennan partner Robert Owen wrote  "Reset to Neutral" — arguing that EDD preservation rules (and judicial interpretation of those rules) have become too vague and too burdensome. Owen proposes five new rules to remedy the perceived problem.

Today, on the LTN website, Milberg's Henry Kelston, senior counsel and a member of the firm's E-Discovery Committee, counters, with "Regress to Neutral." Milberg suggests that Owen's proposal would reset e-discovery back to 1937 when there were no rules, and "litigation outcomes were often dictated by gamesmanship and ambush rather than the merits of the case.

What do you think? Dive into the comments below!

Want more? Listen to the December edition of our Law Technology Now podcast where I interview Owen, at www.lawtechnologynow.com.

Video with Owen here. 

Read my commentary here. 

Image: Clipart.com

Interesting Spin on GPS Use

As we await the U.S. Supreme Court's decision in the GPS tracking case, the lower courts continue to struggle with this issue. A recent decision from a New York Appellate Court has an interesting spin on the use of GPS tracking devices. 

The case is In The Matter of Michael A. Cunningham v. New York State Department of Labor. In Cunningham, a 20-year state employee (with a history of misconduct) was being investigated for taking unauthorized absences from work and falsifying time records. Previous attempted to follow the employee after he left work through traditional surveillance had failed, so the investigators obtained help from the New York Office of the Inspector General (“OIG”). The OIG, among other activities, placed a GPS on the employee’s car.  Information obtained from the GPS device helped the OIG to conclude that the employee had submitted false information about hours worked and travel.

Rosen Book: Tech & Constitution Clashes

Jeffrey Rosen is the co-editor (with Benjamin Wittes) of a new book from The Brookings Institute, Constitution 3.0: Freedom and Technological Change. A constitutional law scholar, Rosen addresses the effect of changing technology on constitutional issues, and recently was interviewed on NPR. 

Rosen claims that “lawyers at Facebook and Google and Microsoft have more power over the future of privacy and free expression than any king or president or Supreme Court justice.”

In the book, Rosen suggests that new technologies, such as GPS tracking, are “challenging our Constitutional categories in really dramatic ways . . . And what's so striking is that none of the existing amendments give clear answers to the most basic questions we're having today.” 

Reset to Neutral

Sutherland's Robert Owen is among the defense lawyers who are chafing about "overburdensome" and vague preservation requirements. In December's Law Technology News magazine, "Reset to Neutral," Owen argues for five new preservation rules that would simplify and clarify legal hold triggers -- and, he argues, reduce skyrocketing costs for corporate defendants.

Read it here.

Image: Monica Bay

What Lurks Within (It's time to trash legacy data!)

Anne Kershaw offers our December print issue's cover story, "What Lurks Within" detailing why it's crucial to establish and enforce document retention programs that destroy "legacy" data not protected by legal holds.

"Legacy data (backup tapes, file shares, PSTs, and other storage media) when kept indefinitely has no value or purpose. But it can create expensive havoc and costs that can be avoided if the data is properly managed, and destroyed when business and legal retention requirements expire," she writes.

Read the full story here.

TMI or Life Saver?

I learned last week that too much information from tech can be a bad thing.

Apple last month released the “Find My Friends” feature on iPhones.  This featrure allows users to view the current locations of other users — who agree — on a map. While sold as a way to track and meet up with friends, I am guessing that the feature is most popular with families. 

Predictably, last month stories started to appear that one of the great uses for “Find My Friends” is the discovery of cheating spouses. One person posted on a web site that he had used the feature to discover that his wife was with another man when she had claimed that she was at a friend’s house in another part of town. 

One commentator noted:

I am sure at this very moment that John Grisham is calling his agent and musing about a new novel — set somewhere in Mississippi — where the plot will turn on the cheery new functions of an iPhone 4S. The plot will, no doubt, turn on whether planning such a ruse would constitute admissible evidence. . . .

The Tyranny of the Outlier

In his December column in Law Technology News, Craig Ball addresses over-production demands and how to combat them.

"Cooperation in e-discovery doesn't mean bowing to your opponent's demands for over-preservation. Instead, cooperation entails communicating relevant, reliable and specific information about systems, sources and forms to enable the other side to make responsible preservation demands … even if they won't do so."

Read the article here.

P.S. Today is the fifth "birthday" of the amended  EDD federal rules. Blow out the candles with Craig Ball here.

Image: Clipart.com

Federal Circuit Takes on Database Cost Taxation

Adding to the growing jurisprudence on e-discovery cost taxation, the Court of Appeals for the Federal Circuit issued an opinion finding the taxation of discovery database costs is permissible under 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54(d)(1). See In Re RICOH Company, LTD. Patent Litigation, No. 20-11-1199, (Fed. Cir. November 23, 2011).

This patent case arises from the Northern District of California and a decision by Chief Judge James Ware awarding certain discovery costs to the plaintiff. The parties in the matter agreed to produce documents in their native form in a database available to the parties.

The Federal Circuit, applying Ninth Circuit precedent, held that the costs of producing a document electronically can be recoverable under 28 USC § 1920(4) which provides for recovery of “exemplification” costs. It also found persuasive N.D. Cal local rule 54-3(d)(2) which permits taxing the “cost of reproducing disclosure or formal discovery documents when used for any purpose in the case.” 

Growing Trend: EDD Special Masters

The use of e-discovery "special masters" — who help parties frame and execute the discovery of electronically stored information — is a growing trend. At last week's Georgetown Law Advanced eDiscovery Institute, there were podium discussions about court-related pilot programs as well as informal conversations among attendees about the new job opportunities.

On a Friday panel, Judge Joy Conti of the U.S. District Court for the Western District of Pennsylvania outlined a pilot project in progress to help ligitants identify and use special masters. Conti, who chairs the court's Alternate Dispute Resolution Implementation Committee, said the court decided to create a list of approved special masters. Finalists were selected for the one year pilot effort, that began in May, she explained.

Acccording to the court's website, a subcommittee, led by Judge Nora Fischer, and including court IT personnel and local practitioners with EDD experience, provided recommendations to the ADR committee, ultimately resulting in approved application and selection criteria. "The final set of criteria approved by the ADR Committee includes active bar admission; demonstrated litigation experience, particularly with electronic discovery; demonstrated training and experience with computers and technology; and mediation training and experience."

Read more here.

Image: Courtesy of the U.S.D.C.

Garbage In-Garbage Out

When the leading e-discovery jurists gather for a review of case law developments at the Georgetown Law Advanced eDiscovery Institute it is difficult to pick the most interesting element of the discussion.

However, the panel highlighted a case outside of the EDD mainstream that serves as a cautionary tale for ediscovery professionals. An appellate court bankruptcy decision, In re Taylor, No. 10-2154, (3rd Cir. August 24. 2011), is “an unfortunate example of the ways in which overreliance on computerized processes. . . can lead to attorney misconduct before a court.”

In Taylor, a magistrate judge imposed the bankruptcy equivalent of FRCP 11 sanctions on counsel who filed pleadings containing computer generated information fraught with errors and took no action when the debtors claimed that the data were inaccurate. The district court overturned the magistrate’s decision. The appellate court, in turn, reversed the district court holding that Rule 11 “requires more than a rubber-stamping of the results of an automated process.”

Further the appellate court held that when a lawyer systematically “ignores obvious indications” that the information may be incorrect, the attorney “cannot be said to have made reasonable inquiry” as required by Rule 11.

Taylor’s obvious lesson is that information output from computer systems is only as accurate as the underlying data. Ediscovery professionals rely on numerous “computerized processes” should remember “GIGO,” an acronym that stands for “garbage in-garbage out”. Careful counsel needs to “trust but verify” electronic data accuracy or potentially face misconduct sanctions.

Georgetown EDD Conference Case Law Update

The eighth annual Georgetown Law Advanced eDiscovery Institute opened Thursday morning with a fast-paced case law update presented by six of the most well-known jurists in the legal industry: John Facciola (U.S. District Court for the District of Columbia); Lee Rosenthal (U.S. District Court for the Southern District of Texas) (right); Andrew Peck (left), Shira Scheindlin, and James Francis (left below) — (all three from the U.S. District Court for the Southern District of New York) — and David Waxse (U.S. District Court for the District of Kansas) (below, with moderator Ron Hedges). Baltimore's Paul Grimm was scheduled to participate, but had a conflict and was unable to attend.

The almost-two hour session at the Ritz-Carlton in Arlington, Va., covered cases that illustrated a wide range of issues that were in consideration during 2011.

Francis started with the long-litigated Rambus cases. (Micron Tech, Inc. v. Rambus Inc., 645 F. 3d 1336 (Fed .Cir. 2011), and Hynix Semiconductor, Inc. v. Rambus Inc., 645 F. 3d 1336 (Fed. Cir. 2011), which addressed the issue of when the duty to preserve kicks in, and what is reasonable anticipation of litigation. Francis described the "shredding parties" that Rambus held that were revealed during the litigation. "In some respects, [Rambus] was an easy case," he observed, because it was so dramatic.

Read more here.

Photos: Monica Bay

Rader Is Becoming a Rock Star

Judge Randall Rader appears to flying to the e-discovery spotlight like a hungry moth in July. Ginny LaRoe at The Recorder  chronicles his speech at the recent conference of the U.S. Court of Appeals for the Federal Circuit and U.S. District Court for the Eastern District of Texas. 

He recently announced a new advisory order that calls for strict limits on e-discovery in patent suits, that could "cost accused infringers dearly even on bogus claims," LaRoe reports.  

Our Mark Michels first covered Rader in "The Elephant in the Courtroom," last month on our LTN website (and in the coming December issue of our print magazine).

LaRos says at least one California judge has jumped on the bandwagon:

With the ink on the advisory order barely dry, U.S. Magistrate Judge Paul Grewal of the U.S. District Court for the Northern District of California issued an order curtailing email production in a patent infringement suit pending in his San Jose courtroom, becoming one of the first judges in the country to buy into Rader's vision.

The move caused a buzz among patent litigators waiting to see if the approach will rein in e-discovery costs, or prove unworkable and even lead to more venue shopping.

Grewal's Nov. 2 ruling creates a test case for discovery curbs, and further solidifies the young — and still green — magistrate's status as a bright light on the Northern District bench.

"I think it's both a courageous move," Rader said in an interview after word of Grewal's ruling made its way to Rader's Washington, D.C., chambers, "but also just a wise application of an available tool to make his case more efficient."

Read the full Recorder story here.

Video: The role of IRP in maintaining an innovative economy here.

Image: Roberto Westbrook

More on Pippins Decision—Preservation Proportionality

Among the many issues raised by Magistrate Judge James Cott’s decision in Pippins et al v. KPMG, No. 1:11-cv-00377, (S.D.N.Y. Oct. 7, 2011) is the uncertainty in the law regarding preservation, particularly in applying  proportionality principles. 

KPMG had preserved more than 2,500 individual hard drives at a cost exceeding $1.5 million and sought a protective order to reduce the preservation scope or shift some of the preservation costs to the plaintiffs. Central to KPMG’s motion was a proportionality argument. In conflict with Rimkus Consulting Grp., Inc., v. Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010) and Victor Stanley, Inc.v. Creative Pipe, Inc., 269 F.R.D. 497 ((D. Md. 2010), Cott declined to apply proportionality principles citing Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y.2010).  He  concluded that  "[u]ntil a more precise definition is created by rule," prudence favors retaining all relevant materials. (Citing Orbit One and Zubulake IV, 220 F.R.D. at 218). 

In response, KPMG filed a motion asking Federal District Court Judge Colleen McMahon to set aside or modify the magistrate judge’s order. The U.S. Chamber of Commerce has also filed an amicus brief urging McMahon ot set aside the magistrate’s order. Unless further extensions are granted, briefing will be completed by December 9, 2011. We will likely have to wait until next year to see whether McMahon will take a different view of preservation proportionality.

Authentication of Social Media Evidence

Richard Raysman (partner, Holland & Knight) and Peter Brown, (partner, Baker & Hostetler), report that more than 250 million photos are uploaded daily on Facebook, in addition to links, blog posts and other content. Much of that material can be used to impeach parties and witnesses, they note — but due to the possibility of impersonation and digital fabrication, the content usually must be corroborated. They discuss recent caselaw in their article here, which appeared 11/11 in the New York Law Journal.

Image: Clipart.com 

Pa. Court Upholds $510K Pretrial Costs

In a recent case in the U.S.D.C. Eastern District of Pennsylvania, Judge Legrome Davis upheld court costs of $510K for pre-trial discovery, mostly e-discovery. Attorney Peter Vaira, of Vaira & Riley, discusses the Aspartame Antitrust Litigation case in The Legal Intelligencer, here.  

Image: Clipart.com

'Lean 6 Sigma' & Predictive Coding

Morgan Lewis partner Stephanie Blair and associate Tara Lawler report on how their firm's eData team is leveraging the combination of predictive coding and "Lean Six Sigma" techniques to offer clients "higher-quality, lower-cost document review."

Read the story, from The Legal Intelligencer, here.  

Lost Metadata

As discussed in Truth About Processing Speed, there are many variables that affect processing speed and performance.  One of the industries' little secrets is omitting or reducing — either intentionally or unintentionally — the amount of meta data fields that will be ingested for processing. The less metadata ingested, the less time it takes to process, index and view the electronically stored information.

Currently, there are more than 80,000 identified reasonably accessible metadata fields available for capture. Clearly, most of those fields are irrelevant to ediscovery, but it is important to be aware of what is reasonably accessible and why those fields are excluded. Although the number of known metadata fields is surprisingly large, it is growing as new file types are added to the mix.

Supreme Court Arguments in U.S. v. Jones

The Supreme Court heard arguments on Nov. 8, in the GPS tracking case, United States v. Jones. My article is  here.

Magistrate Judge James Cott Ruling Generating Heat

Our former ALM colleague Alison Frankel reports on her "On the Case" blog (Thomson Reuters): "E-discovery ruling in KPMG case: Brace for 'profound' impact."

It's about an EDD order from Magistrate James Cott over how many hard drives must be examined in an uncertified wage-and-hour class action suit against KPMG.  The parties agreed that plaintiffs could use sampling software to limit the amount of data to be preserved, says Frankel, but couldn't agree on sampling criteria and number of drives to include in the sample. 

Amicus briefs are flying.  Here's the Chamber of Commerce brief, courtesy of Littler's Cecil Lynn III: Download Amicus Brief

Check it out Frankel's report  here. 

Evan Koblentz' 11/14 article here.

Leonard Deutchman 11/11 article  here 

Hat tip: Jeffrey Brandt

Update on SCOTUS GPS Arguments

Here are some of the news reports and resources regarding yesterday's SCOTUS arguments (See also, Joshua Engel post, below):

• Engel's article is here. 

• "Citing Orwell, Supreme Court Appears Wary of Police GPS Surveillance," by Marcia Coyle, The National Law Journal.

• Which Way Privacy?" by Dahlia Lithwick, Slate.

• Supreme Court documents here. Argument transcript

• SCOTUSblog post by Lyle Denniston. 

• The Volokh Conspiracy post by Orin Kerr.

• Cato@Liberty post by Jim Harper. 

• Electronic Frontier Foundation case history  here.

Image: Clipart

The Social Age of Evidence Collection

I'm delighted to present a guest post, from consultant Sean Martin:

Are today’s law firms ready for the social age of evidence collection? Distribution of information across various online services leads to a frightening lack of visibility and control for organizations.
 
Forensically sound evidence with a provable chain of custody is crucial in making, breaking, or even avoiding a case. Most organizations and supporting legal firms have previously cracked the code for collecting this information, using tried and true, and typically well-known, processes, tools, and services to secure emails and hard drives as evidence. Most firms will use service providers to perform the evidence collection, hashing the data to show it had not changed. But there seems to be a trend moving toward self-collection, remote collection, and the use of online services; with this comes issues of trust and, more importantly, the ability to prove. (Editor's note: Watch for Sean Doherty's Compare & Contrast in the Dec. issue of LTN).

SCOTUS Arguments Today in U.S. v Jones

The United States Supreme Court is scheduled to hear arguments today in United States v. Jones, 

The court will consider whether the warrantless use of a GPS tracking device on a defendant's vehicle to monitor his movements on public streets violated the Fourth Amendment. The briefs, including 13 amicus briefs, are gathered on Scotusblog. For a little perspective, you can read my take from last year on how James Bond relates to this issue here.  

I will have more when the transcripts are released.

Patent Litigation Model E-discovery Order Update

In the LTN article The Elephant in the Patent Courtroom I reported on the model e-discovery order for patent litigation developed by the Federal Circuit Advisory Council's E-Discovery Committee. 

            Judges in three patent cases in the Eastern District of Texas have issued orders with provisions very similar to or incorporating the patent Litigation Model Ediscovery Order terms: Stambler v. Atmos Energy (Case No. 2:10-CV-594)((Judge Everingham), Effectively Illuminated Pathways v Aston Martin Lagonda, (Case No.:6:11cv34 (Judge Love) and Intravisual v Fujitsu (Case No. 2:10cv090) (Judge Folsom). Judge Love has also posted the E-discovery Model Order on his website alerting counsel appearing before him that it is a representative example of an order typically used by him in patent matters. 

            I have heard that the model order is also gaining some traction in Delaware and other patent-heavy jurisdictions.  I will continue to look for cases that adopt the model order. If any readers are aware of any cases that do implement the model order or its provisions, please let me know.

Recent Case Law re: ESI

Mark Berman, a partner at Ganfer & Shore, analyzes recent case law regarding electronically stored information, in this article from the New York Law Journal.