Legal Technology News - E-Discovery and Compliance Blog

Commentary & Analysis

March 12, 2013

EDI-Oracle Study Update

It has been a few weeks since our last update. We have extended the time to respond for the participants. While some thought the extension was unfair to those that have submitted on or before the due date, Pallab, the professors, and I all want as many data points as possible in the evaluation. That said, we are taking note of those teams that submitted early.

Again, we should remind all participants that time is one of the factors in the subsequent evaluation by Oracle. Therefore, a quicker turnaround is preferable and no participant should withhold submitting results unless the additional time is required to complete the review. While there is no penalty for submitting after the first deadline, Oracle will look favorably upon those that finish quickly.

Also, if there were tasks required by the protocol that your firm would not have normally undertaken in a real-life review (categorizing privilege for NR docs), please identify that task as a break-out on your model invoices with an explanation. You may submit your model invoices at you leisure, but no later than May 1.

Best,

Patrick

January 14, 2013

1.6 Million Documents Released: EDI-Oracle Study Updates

File_cabinet_tower400As 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

November 01, 2012

Throwing a Wrench in the Document Review Machine

Binary_suit_400Computers against humans — is this the debate being waged around predictive coding to determine the future of document review? if this is the debate, is it what legal practitioners should really be focusing on in e-discovery?

In a recent New York Law Journal article, Steve Green and Mark Yacano of Hudson Legal question two sources widely cited to support the use of technology-assisted review. One source is Laura Grossman and Gordon Cormack's "Technology-Assisted Review Can (and Does) Yield More Accurate Results Than Exhaustive Manual Review, With Much Lower Effort" from the Richmond Journal of Law & Technology; the other is the 2009 Text Retrieval Conference (TREC) Legal Track Interactive Task study.

Continue reading "Throwing a Wrench in the Document Review Machine" »

August 31, 2012

Resistance Is Not Futile

IMG_3150I'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

July 18, 2012

Scheindlin: Strong Opinion on Custodian Self-Collection

Scheindlin_shira"United States District Court Judge Shira Scheindlin has done it again," says Ralph Losey, referring to her Friday release of "another landmark e-discovery decision."

National Day Laborer Organizing Network et al v. United States Immigration and Customs Enforcement Agency, et al 2012 U.S. Dist. Lexis 97863 (SDNY, July 13, 2012) addresses the adequacy of self-collection by government entities in the context of the Freedom of Information Act.

Read the full story (and download the opinion) here!

Image: Rick Kopstein

Beware of Parrot Experts

Parrot_ralph2When shopping for an e-discovery vendor, always ask to interview their experts, the ones who will actually be assigned to your case. You should do so for any significant purchase, but especially for review software or a large search and review project. That should be part of your standard due diligence. 

Ask the vendor questions now, while their meter isn't running, and while there is still a chance to select another vendor. The same can, of course, be said of a client selecting a law firm. Can you understand what the alleged expert is saying?  Does what he or she says make sense? If not, it might not be your fault. You might not be not talking to a real person at all. You might talking to a parrot. They might look good, and sound good, but all they can do is memorize and mouth the words of others. They do not have any real understanding of their own. That is just the way parrots are. When push comes to shove, they will not be of much help.

Continue reading "Beware of Parrot Experts" »

July 11, 2012

Profiles & Pontifications

Christy Headshot for Trustee Photo (00003796)Many thanks to Christy Burke, (left) president of New York City-based PR and marketing firm Burke & Company, for inviting me to participate in her series of essays about/from industry leaders that has been running in Burke's "Legal Technology Observer" blog. Burke's blog is part of the Legal IT Professionals website.

Her series of guest observers — some write, some are interviewed — includes attorney/consultant/special master Craig Ball (LTN's EDD columnist); attorney/consultant Robert Ambrogi (LTN's "Web Watch" columnist and Lawyer2Lawyer podcaster on the Legal Talk Network); Randi Mayes, ILTA's executive director; and many other luminaries, including Jeffrey Brandt, Mary Abraham, Ron Friedmann, Kevin O'Keefe, Sharon Nelson and John Simek. Next week, Burke, will post a "time capsule PDF containing all the posts" that will be available for free download.

For my essay, Burke send me a list of questions and then opened the starting gate. Here's the end result, with themes you will probably recognize from some of my prior rants commentaries.

Meanwhile, speaking of the Legal Talk Network, Lu Ann Reeb and the gang have created a "Featured Lawyers" section its website, with mini-podcasts and profiles of the attorneys who host podcasts. Already produced: Tom Mighell, Dennis Kennedy, Jared Correia, Marsha Kaazarosian, and moi; others will be added in the near future.

Image: Christy Burke

July 06, 2012

Mark Michels on USITC's Slow Path to EDD Reform

MichelsMark-GT11croppedMark Michels, EDD Update's go-to-guy on all things patent e-discovery, offers a very detailed analysis of the slow, but promising path of EDD rules amendments for the U.S. International Trade Commission. That's the group that conducts unfair trade practices investigations.

Check it out on our Law Technology News website, here.

Image: Monica Bay

Cowen Group "Critical Trends" 2Q Report Shows EDD Surge

CowenGT11Good news from The Cowen Group: Thursday, the headhunter/research consultancy released its "2012 2Q Critical Trends" report, showing a huge surge in electronic data discovery workload at both law firms and corporate counsel offices -- to the tune of 70% and 77% respectively.

That's not all the good news -- according to the 88 respondents, both types of shops are pullin' out checkbooks and buying or upgrading tech, and hiring.

Check out the story here.

Image: Monica Bay

July 05, 2012

John Barkett: ABA Proposed Amendments to Model Rules

Aba_black_logo128 John Barkett,  a partner at Shook, Hardy & Bacon, was recently selected by U.S. Supreme Court Chief Justice John Roberts to the U.S. Judicial Conference Advisory Committee on Civil Rules. He recently provided an overview of upcoming proposals for modifications to the American Bar Association's model rules.

Here's his intro ... you can read the full story here.  (And watch for the August issue of Law Technology News magazine's August issue, which will have more analysis from Michael Arkfeld, Robert Ambrogi, and Stephanie Loquvam.)

Since 1908, the American Bar Association has published ethical rules to govern the conduct of lawyers. The Canons of Ethics became the Model Code of Professional Responsibility in 1969. The Model Rules of Professional Conduct replaced the Model Code in 1983. The model rules are not binding on lawyers in a jurisdiction until that state's supreme court adopts them. With variations in some of the rules, 49 states and the District of Columbia have done so. The one exception is California, which has its own ethics rules.

The ABA periodically reviews the model rules and their explanatory comments in relation to trends in the practice of law, and when necessary makes amendments to the rules or comments. States typically follow suit with conforming amendments.

In 2009, the ABA Commission on Ethics 20/20 was formed to, among other goals, adapt the model rules to technology innovations in the practice of law. To achieve this aim, the 20/20 Commission has proposed amendments to several rules or comments that will be voted on by the ABA House of Delegates, which meets during the organization’s upcoming annual meeting, August 2-7, in Chicago. The amendments appear modest but their import is significant.

Image: ABA

June 27, 2012

FJC Pocket Judge Update

Fjc_logo128The Federal Judicial Center -- the research and education agency of the federal judicial system -- has published the second edition of its influential booklet, Managing Discovery of Electronic Information: A Pocket Guide for Judges, by Barbara Rothstein, Ronald Hedges, and Elizabeth Wiggins. The 48-page publication updates the previous 2007 edition, and can be downloaded free from the center's website. It covers a range of topics, from explaining the difference between conventional paper discovery and electronically stored information, to providing tips on a judge's role. The booklet also includes a five-page glossary, mostly derived (with permission) from The Sedona Conference Glossary: E-Discovery & Digital Information Management (3d ed. 2010).

While reaction has been largely positive, there are some rumblings of discontent about the new publication. Read the full story here.

What do you think about the update?

Image: Federal Judicial Center.

June 19, 2012

Keystroke Analysis Could Replace Passwords

KeyboardThe way you type on your computer's keyboard is as unique as your handwriting, and may even be a matter of national security, an Iowa State University engineering professor says.

In the land of digital investigations, investigators and data collectors may find, in the not too distant future, the need for a custodian to stand by to enter their password for system access.

Thanks to a $500,000 research grant from the U.S. Defense Department, they're looking for better ways than hacker-prone passwords to protect its systems, and are betting that ISU Professor Morris Chang is right. Chang, recently quoted in USA Today, an associate professor of electrical and computer engineering, said we all take unique pauses between keystrokes, especially when typing complicated words.  "When you spell a particular word, you may have a tendency to pause at a certain character," Chang said. "Your pause would be different than mine."

Continue reading "Keystroke Analysis Could Replace Passwords" »

June 12, 2012

UAE to Follow U.S., U.K. in Fighting Corporate Bribery

6a00d8345280a669e20167675ea676970b-120wiIn the world of electronic discovery and the Foreign Corrupt Practices Act, the sought after balance of "discovery abroad" may find some much appreciated balance in international law.

The new law, which will be drawn up by the State Audit Bureau, would fulfill the UAE's commitment to the United Nations Convention against Corruption, which it signed in 2003.

The UAE has ambitions to improve transparency and governance while increasing its role as a center for international business. The UAE has proposed a new company law that will pave the way for a reduction in restrictions on foreign company ownership, while international businesses now have the option to elect the English-speaking Dubai International Financial Centre Courts to resolve disputes.

Bureau chair Hareb bin Saeed Al Amimi released a statement. "This law will greatly support the UAE's efforts to fight corruption and related offences, protect public funds and better utilize national resources for comprehensive development."

Image courtesy of Dubai Tourism

May 30, 2012

Staying 'Above the Fray' in Litigation

3-Heads_losey_transformed

A Three-Brained Approach to Reasonable and Just E-Discovery:

All experienced litigators know that they can best serve their client's interests by staying above the fray of the virulent emotions inherent in most disputes. Our system of justice requires attorneys to provide objective counsel, clear and untainted by the animosity of the parties. How should you react in the rare instance when an opposing counsel intentionally adds fuel to the fire for their own ends? Several slogans apply, such as "don't get mad, get even" and the favorite of all mothers, "two wrongs don't make a right."

I agree with both homilies and show in my latest blog, Litigation, e-Discovery, e-Motions, and the Triune Brain, how the evolutionary model of brain functioning popularized by Dr. Paul MacLean (1913-2007), Yale Medial School, can help us to make sense of it all. I also explain why you don't want a dog for a lawyer, even though they can be quite cute.

In addition, I consider the ancient torts of champerty and barratry and provoke a comment by Craig Ball, and others, that some defense counsel are just as bad a plaintiff's counsel ambulance chasers. I attack abusers and flame throwers on both sides of the "v", plaintiffs and defense counsel, and call for a reason-based approach to litigation and e-discovery.Transcend your emotions and stick to business. That is the best way to get even. Justice is best attained by a calm rational approach.

You may be surprised to find that after 33 years of hard-knocks litigation where I have had to deal with dirty tricks and unscrupulous lawyers and parties of all kinds, I still remain positive and optimistic. They are really a very small minority. Our system of justice, for all of its faults, remains the best in the world. It may not be perfect, but at least we have e-discovery, and, as usual, we are the world leaders.

Image: Ralph Losey

May 29, 2012

Headin' Home

It's been a whirlwind LegalTech West Coast (aka L.A.) and I'm headed back to the Big Apple. Congrats to Henry Dicker and his crew for a lively and educational show; and thanks to all of you who took time from your agenda to chat with our LTN team. 

128px-Westin_Bonaventure_Hotel

Of course, e-discovery was front and center. Check out Michael Roach's thoughtful report about the panel, "Under Fire: Defending and Challenging Technology-Assisted Review" -- which featured Kroll Ontrack's Andrea Gibson (moderator), and speakers  Tom Werner, an associate at Irell & Manella; Pallab Chakraborty, director of e-discovery at Oracle;  and Jeffrey Fowler, partner at O'Melveny & Myers.

I covered the Day 1 and Day 2 keynotes, and of course, iPads, iPads, iPads. One really pleasant surprise was the dramatic changes at Starwood's Westin Bonaventure Hotel & Suites. It never was a favorite of mine, but this trip really changed my mind. It sometimes amazes me how many business people don't realize that bottom line, customers want to be heard. Read my commentary about the lessons learned -- that can apply to our technology community, here.  And here's a very thoughtful response and great advice from Aderant's Jim Hammond, "How to be a Happy Customer."  (Hat tip: Jeffrey Brandt.)

LTWC_2012_75

#LTWC posts were flying, from Rob Robinson, Recommind, Traveling Coaches, LexisNexis, LegalTechShow, Phillip Lemel, RenewData, Derick Roselli, Perry Segal - Charon, Monique Altheim, ABBYY USA, Associated Blogs, Anatoly Soyfer, eDiscovery, lawtechnews (me), and others.

Image: WikiMedia Commons (Floria).

May 23, 2012

The 24/7 Andrew Peck Show

Greetings from LegalTech West Coast in relatively-smog free and sunny Los Angeles. Day one (Tuesday May 22) was full of energy and standing-room only presentations with, as usual, tons of e-discovery in the seminar rooms (and on the busy exhibit hall floor). It's not too late to stop in for Day 2 (today, May 23); it's at the downtown Westin Bonaventure and one day tickets are available if you want some education, demos, and CLE credits.

Topic A among the L.A. EDD crowd, as expected, is the closely-watched Da Silva Moore case, where U.S. District Court Magistrate Judge Andrew Peck has ordered the use of computer-assisted coding (aka predictive coding). Law Technology News is one of those closely-watching, our most recent story is here.

NelsonOn the blawg-o-sphere, attorney Sharon Nelson, (left) president of Sensei Enterprises, has been monitoring the DSM sideshow in her ride the lightening blog. See her latest post, "Da Silva Moore: EDD's Version of Keeping Up with the Kardashians," is  here.

Peck-5-17-12-bPeck and his Second District colleague Lisa Smith gave a terrific program Thursday evening at the New York City chapter of Women in Discovery -- demonstrating his trademark wit and substantive knowledge. See "Federal Judges Preside Over Women in E-Discovery Meeting."

But Tuesday's LTWC keynote address reminded us that Peck isn't a one-trick pony judge doin' nuttin' but e-discovery 24/7/365. (He did win LTN's 2011 Champion of Technology Award). Peck's turf also has included overseeing another matter that kept lawyers Keynote1chewing their fingernails -- to say nothing of anybody with a dollar in a bank. Kevin Genirs (left). In his keynote address yesterday, "2008 v. 2012: Lessons from the Lehman Brothers," described how Peck oversaw the frantic, sleep-deprived, mega-lawyered transactions under excruciating deadlines that ultimately resulted in the sale of Lehman Brothers ("for the price of our building") to Barclays, praising Peck for recognizing the global impact of the sale on the stability of financial markets, and Peck's non-stop efforts to get the deal consummated. Genirs, who had been general counsel, investment banking, at Lehman's, was one of the 10,000 Lehman workers who had new jobs with Barclays when the sun rose the next day.

Later this morning, check out www.lawtechnologynews.com for my colleague Michael Roach's  report on "Under Fire: Defending and Challenging Technology-Assisted Review," which featured Irell's Tom Werner, O'Melveny's Jeffrey Flower, Oracle's Pallab Chakraborty, and moderator Andrea Gibson, from Kroll Ontrack (the sponsor of the Litigation Technology Track." Yes, DSM and Peck were front-and-center in the discussion!

Meanwhile, you can keep up with all the substance and occasional drama about Peck on our website's home page www.lawtechnologynews.com, and its E-Discovery/Compliance "channel" -- and right here at EDD Update. Onward to Day 2! 

Update 5/24: Oooops. Who knew there were two Judge Pecks in the Southern District of New York! Actually, many -- and Silicon Valley consultant Mark Michels, a member of LTN's editorial advisory board, was the first to advise me that I goofed. It wasn't Andrew Peck, it was Judge James Peck, of the U.S. Bankruptcy Court. But you get my point.

P.S. Here's Michael's story 

Photos: Monica Bay, except for Sharon Nelson (courtesy of ride the lightening)

May 22, 2012

Good Rule of Thumb for Cost Estimations

Thumb_ruleI've got a good rule of thumb for you from the world of statistics to help remember the approximate costs involved in quality control.

A double in quality costs about four times as much. Put another way, if you want to reduce your random error sampling rate in half, and thereby double the accuracy of your sampling, your cost to do so will quadruple. It will quadruple because you will have four times as many documents in the sample to review. Twice the quality at four times the cost. Not such a great deal, but that's the way it is. Hopefully the picture of my old unmanicured thumb will help you to remember this.

For the full details of the relationship between confidence intervals and sample size, see my blog on random sampling. Random Sample Calculations And My Prediction That 300,000 Lawyers Will Be Using Random Sampling By 2022.

I updated this blog today with new information, including the rule of thumb that I picked up from a statistics book that I looked at on my vacation last week. (Sad, but true!) I also added a good graph that I saw in Geoff Black's interesting presentation yesterday at CEIC.

I did not attend, but I studied his Powerpoint. Geoff also added a good comment to my blog post. We are now up to 17 responses, proving that there are indeed many math nerds in the world of e-discovery.

Image: Ralph Losey

May 18, 2012

How I Blog So Much?

Ralph_head_BWI get asked all the time how I blog so much. (Funny, people rarely ask me why.) Because I get asked this question so often, I decided to share bits of an interview I did recently for Andrew Bartholomew of e-Discovery Beat. I told him he could ask me anything, except, of course, for the questions that he really wanted to ask concerning a particular case that my law firm is handling.

Andrew put the audio of the entire interview online, and added an edited transcript of selections in two segments: part one and part two. His first question out of the box concerned my obsessive blogging. Actually, he did not call it that, he was quite flattering. But that is how my wife refers to it. Here is how my answer begins. For the full story please see, what else, my blog.

Losey: When I first started doing this in 2006, the blog posts were shorter and I didn’t provide a whole lot of analysis. I was mainly talking about new cases. But after doing this every week for five-and-a-half years now, it has become second nature. I find that my writing evolves as my own understanding evolves.

I’m pretty opinionated at this point because I've been doing it so long. I have become the analysis and opinion guy in e-discovery. I don’t try to report on each new case that comes out. ...

Now would someone please explain to my wife that blogging is not just an narcissistic, obsessive waste of time?

Image by Ralph Losey

May 11, 2012

80% of Super-Nerd "Bubble People" Use Random Sampling

Bubble_headI estimate that 80% of the elite few who attend Sedona, as  mentioned in my last blog, already use random sampling as part of their e-discovery work. But Sedona members are a small group of dedicated specialists. They reside in that arcane space that Paul Weiner calls "the Sedona Bubble."

I must qualify my estimate by saying I have about only a 90% confidence level in that 80%  number. Moreover, I suspect that my margin of error, aka confidence interval, is a high one of 10%. That means that as few as 70% in fact use sampling, or as many as 90%.

Continue reading "80% of Super-Nerd "Bubble People" Use Random Sampling" »

May 09, 2012

Are You an E-Discovery Super Nerd?

Confidence_interval_formulaDo you know what this formula means? Do you know how to use it to make your productions more defensible? Your quality control efforts more efficient? If so, congradulations, you are a super-nerd! If not, well, you're just a nerd. Check out my first attempt at blogging about math and statistics and up your game to super-nerdom status. I'm 95% confident that 50% of you will be glad you did, plus of minus an error ratio of 10%.

Already a super-nerd? Or at least think you are? Try the math out and test your skills. Then leave a comment. Craig Ball already did, and it caused me to make a minor change to my predictions concerning this formula. Maybe your comments will have an impact too.

May 07, 2012

300,000 Lawyers Will Use Random Sampling by 2022

Prediction_graphAlmost all of the e-discovery elite already use random sampling as part of their practice. They are the group that Paul Weiner calls lawyers in the "Sedona Bubble." But how about the rest of the profession?

I think very few mainstream lawyers are using this important quality control tool. In fact, I estimate less than 2% now do so. Probably far less. But this will change, soon and fast, because this is too important and powerful a tool to do without.

I predict that in 10 years 20% of the lawyers in the U.S will use random sampling. I also explain the math behind sample size calculations in my latest blog: Random Sample Calculations And My Prediction That 300,000 Lawyers Will Be Using Random Sampling by 2022.

Image by e-Discovery Team blog

April 24, 2012

The Elephant In The Room

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

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

Image: Courtesy of Rollins College.

April 17, 2012

Predictive Coding Watch: ‘Kleen Products’ in Illinois

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

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

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

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

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

Image by Clipart.com

April 15, 2012

Trapped In an Hourglass!

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

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

Image: clipart.com

April 11, 2012

Act Two: Graham Smith & William Bice

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

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

Will they triumph twice? Check it out here.

 

11th Circuit on Fifth Amendment & Encryption

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

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

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

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

Image by Clipart.com

Size Doesn't Matter?

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

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

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

Image: Clipart.com

April 09, 2012

ACEDS Annual Conference

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

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

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

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

What Do These People Have In Common?

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

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

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

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

Images: United States District Court, Clipart.

April 06, 2012

Ball in Arkfeld's Court: Notes on Forensics

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

Here are some quips and insights:

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

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

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

April 04, 2012

New York Bar's EDD Best Practices Guidelines

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

Image: Clipart.com

March 29, 2012

Franks Backs EDD Rules Change

Capitol_ceiling_400Rep. Trent Franks, chair of the House Judiciary Committee's Subcommittee on the Constitution, submitted the attached letter to judges Kravitz and Campbell just prior to the Ann Arbor meeting of the Rules Committee last Thursday and Friday. Notably, the subcommittee lent some support to the commencement-as-trigger proposal I made in Dallas and in a follow-up submission to the committee (available at http://1.usa.gov/srsE9P), and which professor William Hubbard also made. (Copy of Franks letter Download 2012.03.21 Franks Ltr to Kravitz and Campbell attached.)

Highlights:

"First, while the explosion of electronic discovery has dramatically changed the discovery process, the fundamental purpose of discovery — namely, 'the gathering of material information' — remains unchanged. Thus, one response would be to limit the scope of discovery to information that is relevant and material to the claims and defenses in each case.

Continue reading "Franks Backs EDD Rules Change" »

March 28, 2012

Da Silva Moore Fury

TargetI'm late to the party, because I actually took a real vacation to Florida for spring training, but I came back to find that the blogosphere is atwitter with reactions to the Da Silva Moore v. Publicis Groupe & MSL Group plaintiffs' comments about United States District Court (New York) Magistrate Judge Andrew Peck in the plaintiff's March 19 reply brief filed by Sanford Wittels & Hesler. The matter is now pending before U.S.D.C. Judge Andrew Carter. (Peck won the 2011 Law Technology News Innovation Award for Champion of Technology for his work educating the legal community about litigation technology).

* To first bring you up to speed, here's Peck's Feb. 24 opinion. Here's K&L Gates' March 21 report on the plaintiff's reply brief, which is now pending before District Court Judge Andrew Carter.

Here are some of the most vibrant discussions:

* Brandon D. Hollinder: eDiscovery News' "Update - Plaintiffs Attack Judge Peck's Da Silva Moore Predictive Coding Order Again." An excerpt: "From the outset, there was a noticeable undertone of animosity towards Judge Peck running throughout the Reply. Plaintiffs took the opportunity to play up the connection between Judge Peck and defense counsel Ralph Losey (who is also regarded as a thought leader in the e-discovery industry and is the author of a widely disseminated blog among other things), and to a lesser extent Recommind, the software vendor whose computer-assisted review platform will potentially be used in this matter.

Continue reading "Da Silva Moore Fury" »

March 14, 2012

The Future of the Review Attorney

Astronauts_laptop_128With the advent of computer-assisted review, it is difficult to know how the review industry will ultimately be impacted. Certainly, we can infer that the days of 100-attorney reviews that go on for months on end are coming to a conclusion.

Does this increased efficiency bode that more "microwave" reviews will take place, perhaps with clients electing to review sets of documents that would not have previously been reviewed due to higher cost?

What will become of the current field of attorneys that have become dependent on review projects to sustain their legal careers while they await more permanent employment? Will large firms continue to sustain massive contract review staffs, or will review specialists develop niche areas of skills, such as securities, or patent law?

Continue reading "The Future of the Review Attorney" »

March 07, 2012

Looking for 'Friends' You Can Count On?

People become friends for all kinds of reasons. Jonathan Ezor looks into the ethics of attorneys "friending" witnesses or opposing parties via social media such as Facebook to gain access to evidence in "False Friends: the Ethical Limits of Discovery via Social Media."

Ezor further investigates in what situations might evidence gathered through "false friending" be admissable -- even if the lawyer violated ethical rules. For private attorneys, state law could permit it.

Facebook_homepage400Is it ever justifiable when dealing with social media to search beyond posts that are publicly available?

Image by Spencer E. Holtaway

March 01, 2012

E-Discovery Can Be Criminal

When it comes to e-discovery, the criminal division has "come a long way from the late 1990s to mid-2000s — when the electronics working group simply focused on how to scan paper documents," reported LTN's Evan Koblentz on the release of the Recommendations for ESI Discovery in Federal Criminal Cases by the Joint Electronic Technology Working Group.

Now, U.S. District Judge Shira Scheindlin weighs in, along with technology consultant Jeffrey Rabkin, with a careful consideration of the "core concepts" of the recommendations, what controversies they might raise in practice, as well as what questions the working group needs to address in future additions to the guidelines.

Core concept: the need for a meet and confer, much like that outlined in Rule 26(f) of the FRCP. Handcuffed_laptop400

Controversy: a clause that states in response to ESI volume "the parties increasingly will employ software tools for discovery review," which could be read as an endorsement of technology-assisted review in criminal cases.

The future: How exactly do we define the government's duty to preserve in a potential criminal case? The defense's?

Read the New York Law Journal article, "Core Concepts of New ESI Guidelines for Criminal Law."

Image by Clipart.com

February 27, 2012

Ramifications of Judge Peck's New Opinion

Binary_suit_400We must remember that decisions of federal magistrate judges carry no weight beyond the U.S. district judge who assigned the matter to them. 

Under Rule 72 (a) of the Federal Rules of Civil Procedure, decisions of a magistrate judge are subject to review and either approval, modification or reversal by a district judge of that court, except in civil cases where the parties consent in advance to allow the magistrate judge to exercise the jurisdiction of the district judge. The last word in the Da Silva Moore case will rest with US district Judge Andrew L. Carter who is assigned the case.

Magistrate decisions by Judges like the Honorable John M Facciola, Honorable Paul Grimm, and Honorable Andrew J. Peck have become the linchpin in the evolution of e-discovery case law. However, it's time to see more U.S. district judges like Shira A. Scheindlin taking the lead in this area.

Image by Clipart.com

February 13, 2012

Predicitive Coding in Andrew Peck's Court

Code_white_silhouettes_400In 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

February 10, 2012

Thou Shalt Not Commit Adultery on Your iPhone

Divorce_cupidThe 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

February 09, 2012

Cowen Group Leadership Roundtable on IG, the Cloud

Cloud_golden_gateThe 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.

Continue reading "Cowen Group Leadership Roundtable on IG, the Cloud" »

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? 6a00d8345280a669e20168e7131bd6970c-120wi 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

February 06, 2012

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.

Continue reading "Pippins Demonstrates Need for Uniform Preservation Rules" »

February 03, 2012

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.

January 26, 2012

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.

January 25, 2012

New Proposed E.U. Data Privacy Regulations

EUThe 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).

Continue reading "EDRM Projects Advance Industry Standards" »

January 24, 2012

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.

January 23, 2012

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.

Continue reading "When Kids Hit the Road " »

January 20, 2012

Tom O'Connor Joins Avansic

TomO_2Tom 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.

January 17, 2012

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.

SeeGoogle 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. 

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