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June 2012

June 27, 2012

Judge David Waxse: "Child's Play"

WaxsestoryJudge David Waxse says if you graduated from kindergarten you should be able to handle e-discovery "meet and confer" sessions. All you need to remember is what you learned in elementary school, he says assuringly.

Check out "Child's Play," in the current edition of Law Technology News magazine. The July edition of my podcast, Law Technology Now, also features Waxse, a U.S.D.C. magistrate judge for the state of Kansas. It will go live in early July.

Illustration from the June LTN, by Jon Reinfurt.

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 25, 2012

Experts Propose Defensible E-Discovery Standards

Defensible e-discovery processes and audits have been something of an enigma, but now Jason R. Baron, an e-discovery leader at the National Archives and Records Administration, is leading an effort to create just that. Here's the story at Law Technology News.

June 22, 2012

Courts Remain Divided on Cell Phone Searches

Police_lights400A Colorado court has continued the split among courts about the ability, under the Fourth Amendment, for police to search cell phones. The case is People v. Taylor, Colo. Court of Appeals, 5th Div. No. 09CA2681 (June 7, 2012).

In Taylor, the police justified the cell phone search of a suspected drug dealer under the "search incident to arrest" exception to the warrant requirement. In brief, under this exception to the Fourth Amendment, police may search any objects in the possession or reach of an arrested person.

Read the full article on LTN online.

Image by dogulove

Judge Facciola on the Duty of Competency and EDD

Facciola_john2_400Lawyers must meet not just the letter of ethics rules, but the spirit of the concepts, especially when grappling with e-discovery.

That was one takeaway from the "Duty of Competency and E-Discovery," a free webinar hosted by e-discovery vendor iConect June 21, in which Joshua Gilliland, author of Bow Tie Law's Blog and founder of legal iPad app developer Majority Opinion, discussed ethics and electronic data discovery with Magistrate Judge John M. Facciola of the United States District Court for the District of Columbia.

The webinar drew upon competency as defined in Rule 1.1 of the ABA Model Rules of Professional Conduct: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

According to Facciola, competency now requires "a fundamental understanding of the way information is produced." This entails: 1) some understanding of the information systems you and your client are relying upon; 2) knowing your own limitations; and 3) if you don't understand, have someone at your side, i.e. an expert, who does, he declared.

For more on the webinar, look to LTN online.

Image by LTN

June 20, 2012

Peck to Participate in U.K. Panel on Predictive Coding

Peckpanel51712Predictive coding (aka technology-assisted review or computer-aided coding) crosses the Atlantic to London for a June 27 panel about technology's role in cutting e-discovery, or e-disclosure, costs.

The panel, sponsored by Epiq Systems, will feature Magistrate Judge Andrew Peck of the Southern District of New York, (left) who recently penned an order refusing to recuse himself from the controversial litigation, Da Silva Moore. Plaintiffs had challenged his neutrality, partly because he advocates predictive coding on industry-sponsored panels. Joining him in the debate will be Senior Master Steven Whitaker of the Queen's Bench Division, whose judgment in Goodale v The Ministry of Justice is regarded as a landmark U.K. decision about e-disclosure. Laura Kibbe, Epiq's managing director of document review and expert services , will moderate.

The event will include arguments about the defensibility of technology-assisted review, the effect on law firms' fees when TAR is used -- and how law firms can expect to be penalized in costs if they fail to match up to the expectations of the court, Epiq advises.

The event is open to legal professionals at law firms and corporations. Register for the event on Epiq's website or contact Epiq at

Press release.

Image: Monica Bay

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" »

EDI's 2012 Leadership Summit Coming This Fall

4466162812_6e7d854de0_mThe Electronic Discovery Institute will be hosting its second annual Leadership Summit from Oct. 17-19 at the Ritz-Carlton in Fort Lauderdale, Fla.

The conference will consist of roundtables and panels, breakout sessions, and social events devoted to e-discovery, digital privacy, social networking, as well as other tech topics. The event will include "ambassadors from every major business sector in panels that will be dominated by judges, in-house corporate lawyers, and IT professionals," says Kurt Leeth, EDI's director of sponsorhip outreach and special events.

Key focuses of the summit will be technology in action at major organizations and best practices to curtail overpreservation of electronic evidence. "Defensible Deletion" and "Dodd Frank, Whistle-Blower and the Foreign Corrupt Practices Act" are among planned session topics. Visit the EDI website to register.

The EDI is a 501(c)(3) nonprofit research and educational organization based in Tarrytown, N.Y., and was co-founded by Patrick Oot, special counsel for e-discovery at the SEC and a member of the LTN Editorial Advisory board, and Anne Kershaw, founder of A. Kershaw, P.C.//Attorneys & Consultants and former LTN editorial board member.

Press release.

Image by Bob B. Brown

June 18, 2012

Judge Peck Refuses Recusal


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

Story and opinion are on the LTN website, here



Image: Monica Bay 

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

June 11, 2012

End-to-End E-Discovery for Small Firms? Pick Your Battles

Digital_warroom_400Recommind's Axcelerate and kCura's Relativity -- most recently picked up by H5 -- may offer end-to-end e-discovery platforms, but will they fit comfortably within the budget of a small to midsize firm? A solo?

Attorney Brett Burney reviews Gallivan, Gallivan & O'Melia's Digital WarRoom, a software GGO claims follows its mantra "e-discovery for everyone." In addition to its greater affordability, in Burney's opinion, "DWR seems to have adopted the best two or three features offered by leading e-discovery software makers such as Clearwell and kCura Relativity and packaged them all together in one functional, integrated platform."

Read the full article on LTN online.

Image courtesy of Gallivan, Gallivan & O'Melia

June 06, 2012

New Hire at DOAR, Jackson Lewis Turns to Kroll Ontrack

Laptop_code400An industry consultant and a law firm involved in the brouhaha around predicitive coding in Monique da Silva Moore, et al. v. Publicis Groupe SA and MSLGroup made moves in e-discovery this week.

DOAR Litigation Consulting, a plaintiffs consultant in Da Silva Moore involved in the drafting of its ESI protocol, announced the addition of Gerard Britton as a managing director of its discovery consulting practice. "The fact that DOAR is advising clients as experts at the highest levels on cutting edge legal issues is what most appealed to me," says Britton of his new position.

Jackson Lewis, who represent defendant Publicis Groupe SA in Da Silva Moore, selected Kroll Ontrack as its preferred provider for e-discovery, which gives the law firm Kroll's discovery and document review, workflow processes, early case assessment tools, and review technology. In exchange Jackson Lewis will recommend Kroll to its clients. "[The] relationship with Kroll Ontrack will enable Jackson Lewis to focus on its core competency of practicing labor law, resolving complex disputes, and mitigating risk to organizations," says Losey.

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