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July 18, 2012

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" »

May 30, 2012

Staying 'Above the Fray' in Litigation


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 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 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, 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 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 11, 2012

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

April 09, 2012

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.

January 25, 2012

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

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 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.

Analysts "Rundown"

ShootAmy Juers checks in to let us know about an upcoming "Analysts Rundown" panel, at LegalTech New York 2012, from 8-9 a.m. on Weds. Feb. 1, in Concourse A of the Hilton New York.

The "shoot-out" roundtable will feature analysts who cover e-discovery, information governance, and risk management, from four competing consultancies:

• David Horrigan (a former reporter for The National Law Journal and Law Technology News), now an analyst with The 451 Group.
• Barry Murphy, co-founder and principal analyst of the eDJ Group.
• Katey Wood, analyst at Enterprise Strategy Group.
• Christine Taylor, analyst at the Taneja Group.

"E-Discovery professionals (and consumers) often do not have a deep history in IT and frequently do not understand the value provided by industry analysts or the difference between the various firms," says Juers, CEO of Minneapolis-based Edge Legal Marketing, the sponsor of the session. The program, designed to help attendees understand the role of analysts and differentiate between the companies, will be moderated by Brad Blickstein, of the Blickstein Group, a consultancy that focuses on corporate law departments.

The free program is open to all attendees of LegalTech New York.


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