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Eternal September

As we mark the 233rd anniversary of our nation's founding with fireworks, Sousa marches and cookouts, I'm quietly looking back a scant thirty years, to the birth of USENET, and marveling at how far that once-great network has fallen.  Oddly, USENET figures prominently in an interesting new e-discovery sanctions decision.

Gather round, kids, and let L'Éminence Grise regale you with tales of yore, long before the Web, when dial-up bulletin boards were the bleeding edge and USENET messaging was bitchin'.  You iPod-addled whippersnappers with your forae, blogs and tweets think it's all so new.  In my day, we had to rise early and trudge through the snow to stack our TCP/IP...what's that...you don't care how pioneers poured the foundation for electronic expression and fashioned Perez Hilton from a lump of clay and a dash of silicon?

StoredIQ Releases Desktop Agent

StoredIQ has released the StoredIQ Desktop Agent, a central management console that collects e-mails and files from remote offices and mobile users. The network-friendly storage agents can be uninstalled after the e-discovery project is completed. Full release here.

Over There: Where Angels Have No Fear to Tread

I am late to the party in discussing the case of Digicel et al v. Cable & Wireless, et al.  Others, including the extraordinary Chris Dale and the magnificent Sharon Nelson, long ago put their stamp on the case.  The peripatetic Sultan of Search, Jason Baron, even guest blogged it for the prolific Ralph Losey.  But as it was decided "Over There," and Sir Andrew Lloyd Webber hasn't set it to music, I paid it little heed. 

But lately, I'm obsessed with sensible ways to improve keyword searches and practical means to test searches before they're trotted out against vast swaths of ESI.

Mr. Justice Morgan's opinion is the rare case where a jurist closely analyzed the efficacy and burden of particular keywords for electronic search--an undertaking that U.S. Magistrate Judge John Facciolla artfully characterized as a fool's errand for lawyers and judges.  Still, once we change the "esses" to "zeds," there's much we Yanks can learn from the Digicel decision.

e-Discovery Team Blog Posts 150th Blog

I just noticed that the e-Discovery Team blog posted last night was the 150th weekly article posted since the blog started in late 2006. In other interesting stats, the blog has received 676 Comments (not including ten gazillion spams, most of which were blocked). By chance, the 150th blog was not written by me, but by Jason R. Baron, and is entitled "DESI, Sedona and Barcelona: Reports from the DESI III Global E-Discovery/E-Disclosure Workshop at ICAIL 2009 and The Sedona Conference® International Programme on Cross Border E-Discovery and Privacy." 

Very few of the Team blogs are from guest bloggers, but the outside contributions I have accepted are always very good and very popular. Jason has contributed before and this blog is another excellent report on his latest international activities to help advance the world-wide quest to solve the key problem in e-discovery, Search. Jason is the leader in joining the talents of the academic scientific community to those of Law to tackle this issue. He is also the Energizer-Bunny with his non-stop efforts in this field, giving more presentations all over the world than anyone I know. Jason's blog gives a good overview of what happened at the latest two international e-discovery events he attended (DESI III and Sedona Cross-Border) in Spain a few weeks ago. The DESI events he organized as is explained in this lively read.

Jason also suggested his own graphics for this blog, Jpgs that he sent of Antoni Gaudi (1852-1926) architecture in Spain and other local sights. I love the photos of this wild architecture created a hundred years ago. Please take a few minutes to check it out and leave a Comment. The next large approaching blog stat will be the 1,000th comment and you are all invited to be a part of that.

You've Got Mail...and We've Read It

My friend Marni Willenson, a noble, energetic advocate for Farmworker Justice, shared a new appellate decision from New Jersey addressing whether employees have reasonable expectations of privacy in privileged e-mails sent and received using employer systems.  It's one of those frustrating cases where the court reached a just result but made an unholy mess of the law along the way.

In Stengart v. Loving Care Agency, Inc. et al. (Docket No. A-3506-08T1, published June 26, 2009) , a three judge panel of the New Jersey Appellate Division ruled that, notwithstanding written policies to the contrary, an employee has a reasonable expectation of privacy in e-mails sent and received with her personal counsel via an employer-owned laptop.  The Court remanded the case for a determination of appropriate sanctions, including possible disqualification of the employer's counsel.  The court could have reached the same result on a narrow rationale, but, badda bing, chose a path that will make e-discovery harder and riskier.

Dont Crie for20Me Argnetina

It's too darn hot in the Texas hill country, so I'm wishing I was hiking the Appalachian Trail.  "What's that, dear?"  "Hiking the Appalachian Trail" is a euphemism for what."  Hmm, I guess Governor Sanford will do for the Appalachian Trail what Governor Spitzer did for the Mayflower Hotel and President Clinton did for cigars.  Marketers take note.

But there's an important e-discovery lesson in this sad, sordid saga, and its not the familiar one about never using e-mail for something you wouldn't want to repeat on the witness stand.  Clients are going to do it anyway.  How else to coo sweet nothings to one's Argentine querida?  No, the lesson is about what you must do to find the smoking gun in ESI when using keyword search.

Peck & Waxse Hold Court at Round Table

Fascinating dinner last night with the Fios  gang, to kick off LegalTech West Coast. Mary Mack and Debbie Caldwell were among the orchestrators of the evening, which featured two prominent U.S. Magistrate Judges who you have been reading a lot about (in Craig Ball's EDD column): Andrew Peck, (far left) of the Southern District of NY, and David Waxse (left) , of the District of Kansas. It was a sneak preview, of sorts, of tomorrow's keynote address at LegalTech West Coast.

Mary Mack moderated the eat-and-talk roundtable discussion, which drew about 25 lawyers and one summer associate for an off-the-record discussion of recent discovery trends. Peck recently caused a lot of heat with his Gross case ruling, a "wake up call to the bar" chastising attorneys about sloppy searches and failure to truly cooperate with opposing counsel (See Ball's June column), Waxse authored the key  Williams v. Spring/United Management Co. case in 2006.(See ABA Journal's "These Cases Rock").

The two men interact well together and quickly drew the audience into the discussion, which covered a lot of territory running from ethics to how EDD requests are sometimes used to bully the other side into submission because the sheer cost of production.

Both judges -- along with Tom Allman and moderator Carole Basri -- will be presenting the Thursday keynote (immediately following our "Green Your Career" networking breakfast for jobseekers) at LegalTech West Coast, at the LA Convention Center. Don't miss it. These two judges are entertaining, and substantive, and it's bound to be a great panel. For information, visit www.legaltechshow.com -- or just come on' over to the LA Convention Center!

Textbook Case of Discovery Abuse Exposes a Fallacious “Pig in a Poke” Defense

Defense counsel in Atlanta tried the old "pig in a poke" defense recently. Senior Judge J. Owen Forrester figured it was a ruse, just like the medieval derivation of the phrase, and sanctioned defendants. Kipperman v. Onex Corp., 2009 WL 1473708 (N.D.Ga., May 27, 2009). Judge Forrester called it a "textbook case of discovery abuse" and imposed sanctions of over One Million Dollars. The new case is all written up in this week's e-Discovery Team Blog.

So what does "pig in a poke" mean anyway? It is a confidence trick originating in the Late Middle Ages when meat was scarce, but not rats and cats.  According to Wikipedia, whom I believe is correct in this instance, "the scheme entailed the sale of a "suckling pig" in a "poke" (bag). The wriggling bag would actually contain a cat — not particularly prized as a source of meat — that was sold to the victim in an unopened bag." The idiom is commonly used today to refer to a risky purchase without inspecting the item beforehand. Typically it suggests that you would be a fool to make such a purchase and so should not do it. A related phrase is to "let the cat out of the bag," meaning 'to reveal that which is secret.'

So what does this have to do with e-discovery? Defense counsel in Kipperman argued that there was no way to know if any email of value existed on backup tapes, so it would be a mistake to spend the large sums of money needed to look. He suggested that there probably were no emails of value on these tapes. The judge later decided the attorneys knew all along, or at least should have known, that the tapes were in fact filled with cats, I mean, smoking gun emails, and the argument was a ruse. Fun case, except for defendants of course, as I explain in the full write up.

Act Litigation Adds New Data Processing Lab

Act Litigation Services has opened a 14,000 square-foot facility in its California headquarters to help it process more data. The company says the lab triples the number of Windows 2003 servers and increases the number of SAN and NAS storage devices. Full release here.

DTI to Sponsor Ga-CLE Event for In-House Counsel

Document Technologies Inc. has announced that it will sponsor a Ga-CLE event called "Corporate ESI & E-Discovery" on June 26 in Atlanta at the Villa Christina resort. Six CLE credits may be earned at the event. Full release here.

Litigation Logic Launches E-Discovery Blog

Litigation Logic has launched a blog called eDiscovery 101, which the company says is dedicated to education support staff and attorneys on the basics of e-discovery and how to help in-house departments play a more important role. The blog is written by the company's CEO, Anthony Martinez.

FTI Webinar on Search Technology for EDD

FTI Consulting Inc. has announced that its FTI Technology division will hold a webinar on June 23 at 1pm. The webinar, "The Myth and Promise of Search Technology for E-Discovery" will feature Vivian Terro of IDC and Joe Looby, senior managing director of FTI Technology as speakers. Full release here.

Forensics Consulting Solutions Offers Clearwell's 4.5 EDD Platform

Forensics Consulting Solutions announced the addition of Clearwell's upgraded 4.5 e-discovery platform and the Clearwell Mobile Solution to its offerings. Clearwell's upgrade includes support for multiple languages during processing as well as "stop word indexing" to help with search and analysis. Full release here.

SANS Forensic Summit - July 7-8 in D.C.

What LegalTech is to law firm technology and The Sedona Conference is to electronic discovery, the upcoming SANS WhatWorks Summit in Forensics and Incident Response is to the world of computer forensics.  I'm excited and humbled to be participating in a panel discussion called, "Forensic Challenges from the Court Room," and that's not just hype.  The folks speaking at the summit are known to me as the gurus whose names appear on the spines of the books in my forensics library.  Folks like Harlan Carvey and Eoghan Casey.  Other presenters wrote some of the tools that forensicists around the world use every day or are names in the news.  Makes me wonder if they brought me in as some sort of mascot.   Hmmmm. 

If you're interested in the world of computer forensics and incident response, the Summit takes place on July 7-8, 2009 in Washington, D.C.  The event is flanked by some pretty impressive training programs, too.  So register now, and come say "hi."  I'll be the one in the giant foam dongle costume.

If SharePoint is the Archimedean Point for an organization, then …

Vendors and service providers need to support that point. And that’s just what Kazeon Systems intends to do with eDiscovery SharePoint Manager, which aims to use SharePoint as both an ESI source and target.

On the collection side of e-discovery, SharePoint Manager features forensic collection, data verification and audit, and exception reporting. It also offers in-depth processing for SharePoint data and metadata, with legal hold management and configurable workflow settings. And, there are some vantage points to all the data collected and processed.

SharePoint Manager includes analytics, search, and visualization of SharePoint data to get an early case assessment of a project or investigation. This will help counsel remember “The Gambler” when it comes to assessing litigation: “You got to know when to hold 'em, know when to fold 'em” and “Know when to walk away and know when to run.” And it can be that easy when you know what’s in your hand.

ABA Releases Latest Edition of Kroll Ontrack's Book

The American Bar Association has released the newest edition of Electronic Evidence and Discovery: What Every Lawyer Should Know Now. The book, by Kroll Ontrack’s Michele Lange, director of legal technologies, and Kristin Nimsger, president, provides legal professionals with a guide to the legal and technology issues involved in e-discovery. 

Providing analysis of new case law and e-discovery cases, it helps provide a guide for e-discovery cases to come. Lange and Nimsger also discuss how legal and IT teams can collaborate to manage e-discovery requests. Full release here.

Chameleon-like Defense Counsel Tries the Old "Documents Fell Into a Black Hole" Excuse

The e-discovery team blog this week is on the new case out of Indianapolis where U.S. District Court Judge Larry J. McKinney calls the lawyers for the defense "chameleons" who joined in their clients scheme to withhold evidence. 1100 West, LLC v. Red Spot Paint & Varnish Co., Case No. 1:05-cv-1670-LJM-JMS (S.D. Ill. June 5, 2009). Judge McKinney entered a default judgment against the defendant for withholding evidence and misleading opposing counsel and the court. The judge held that both the defendant and its law firm should pay for all of the other side's fees and costs, which will be quite high in this hotly contested environmental damage case. My blog this week is entitled Law Firms Threatened by Fat Chameleons. It examines defense counsel's abhorrent behavior in this case and why the judge called the lawyers chameleons. I explain what the judge meant by "chameleon lawyers" and point out how this is a problem with many law firms today, not just the big firm in Indianapolis who was shamed by this decision.

Read on to see what a lizard black hole looks like, how defense counsel in this case failed with the black hole defense, and how you too can become a chameleon lawyer.

iConect Adds In-House TIFF-On-The-Fly

iConect Development has added TIFF-on-the-fly and in-house .tiff production capability to reduce review time. The company says that the TIFF-on-the-fly and native file viewer streamline workflow by helping legal teams annotate and redact native files without needing to create .tiff files first. 

A dedicated TIFFing server and iConect’s Offline Proudction program help users print or package production sets outside of iConectNxt, so that Nxt system performance is not affected. Full release here.

kCura Releases Relativity 5.0

KCura has released version 5.0 of its Relativity document review and management tool. The upgrade adds improved analytics and clustering based on Content Analyst’s CAAT technology. Users now have the ability to sort documents and then browse the results of a search by concept. 

The upgrade also adds an integrated transcript viewer, which helps users search transcripts along with other documents. The company says that the transcripts will also have a hyperlinked word index in the viewer. Custom layouts, views, and searches help reviewers maintain their own search and code interfaces. Full release here.

LitWorks Offers Custom Web-Based Training

DTI’s LitWorks has announced its custom web-based team training in addition to its existing training program. The cmpany says that the course is designed for both large and small litgation support departments and is custom-designed to focus on the areas most important to each class. 

The company’s traditional courses include Certified Litigation Support Professional Training, for staff with one to five years of litigation support experience and a three-day Certified Litigation Support Manager Training course. Full release here.

Iris Data Releases Unify 2.x

Iris Data Services has upgraded its Unify 2.x document review platform. Joseph Ziegler, the company’s director of technical services, says that the upgrade replaces the software’s search engine with a distributed enterprise indexing engine. 

Ziegler also says that the engine creates targeted indexing, which helps to pre-index data and then update the index on the fly based on changes during the review process. He also says that each project is isolated in its own database with a dedicated server cluster, which can help them grow from small projects to large projects. Full release here.

Precision Discovery Calculator

Electronic discovery and computer forensic company Precision Discovery has released a web-based electronic discovery calculator. The company says that the “PD ED Calculator” helps legal professionals estimate the conversion rate between electronic and paper media.

“Precision Discovery developed the PD ED Calculator to fill a void in the litigation professional’s toolbox with a simple resource that performs quick approximations between electronic media and paper as well as between differing electronic media types,” says Jerry Barbanel, president & CEO of Precision Discovery. Full release here.

Kazeon Upgrades Its Information Management System

Kazeon Systems has launched the fourth generation of its information management software, adding dynamic concept search, content analytics and visualization. The upgrade also adds social search and federation, or deep searching. The company says that the latest version of the software helps extend its search capabilities to perform conecpt extraction and work with natural language connectors. Full release here.

LexisNexis Upgrades Concordance

LexisNexis has upgraded its Concordance litigation document management software. Version 10 includes complete Unicode support to help legal professionals search, review, and produce documents in complex foreign languages.

The company says that previous versions supported documents in European languages, but that the upgraded version incldues support for characters in Russian, Chinese, Korean, Hebrew, Japanese, and Arabic. The upgrade also helps users conduct mixed language searches and includes a native file viewer from Electronic Legal and a tag database that provides full tagging support. Full release here.

New Professional E-Discovery Association

International Law Discovery & Disclosure is a new not-for-profit professional association, which focuses on the intersection of emerging issues in international compliance, electronic discovery, records management, and risk mitigation. Its purpose is to network and explore the convergence of these emerging areas. Members include accounting firms, corporations, government, law enforcement, law firms, and vendors. Full release here.

Digital Reef Partnerships

Digital Reef has formed a partnership with Mimosa Solutions to discover, manage, and analyze content during litigation.

Mimosa says Digital Reef’s early case assessment feature integrates well with its e-mail, file, and SharePoint archiving system. Mimosa’s NearPoint software provides users with archiving, search, and tagging for Microsoft Exchange servers, SharePoint file systems, and both laptops and desktop computers.

Digital Reef enhances onNearPoint by providing case management, analysis of case data, and an enhanced culling ability, the two companies note.

Digital Reef also announced the launch of its Digital Reef Partner Program, which will help partners use Digital Reef technology to complement their own product offerings.

Partners can offer Digital Reef’s search, analytics, automatic data classification, and data management capabilities to complement their own EDD or risk management products. Full release here.

Kroll Ontrack Launches Trial Technology Readiness Training Program

Kroll Ontrack has launched a new Trial Technology Readiness Program. Developed by the trial technology team at TrialGraphix, the program helps legal professionals master the operation and management of courtroom presentation technology for trials.

The company says that participants also learn organizational strategies and quality control procedures to prepare trial teams. Full release here.

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Planet Data Webinar on FRE 502

U.S. District Court Judge Michael Baylson will be the featured speaker on a Planet Data webinar on Tuesday June 16, at 2 p.m. EST. The program is free, and CLE will be available to attendees. Other speakers will include David Kessler (a partner at Drinker Biddle and Reath)  and James Stricker (a parnter at Kasowitz Benson Torres and Friedman). Planet Data's CEO Howard Reissner will moderate.

Press release here.  A white paper on RE 502 here.

One More Thing You'll Wish You'd Never Heard About Search

I don't think I've ever met Perlustro CTO Jim Baker; but, now-and-again he calls my mobile and talks for hours at a blistering pace belying his easy southern drawl.  He’s a smart fellow who’s been around the block, and he's so steeped in the world of electronic data and computer forensics, listening to him is like trying to drink from a fire hose.  It's all I can do to keep up.

Perlustro is the never-heard-of-'em company responsible for a world-famous product: ILook, billed as "the most widely distributed law enforcement, military, and intelligence agency multifunction computer forensic examination system in the world."  Indeed, until recently, only law enforcement and agency types could use the ILook tools; but now they are emerging as commercial products to compete head on with the likes of Encase, FTK, ProDiscover and X-Ways Forensics.

Amidst a million other tidbits, Jim shared a "I-can-hardly-believe-it's-true" flaw impacting indexing engines.  If you're doing e-discovery by keyword searching indices of client data--and who isn’t?--you need to have this issue on your radar.  Or, you may wish you kept your head in the sand with everybody else.

SuperiorGlacier Opens Chicago Office

Litigation support service provider SuperiorGlacier has announced the opening of its new office in Chicago. The company says that its new office will provide the same services as its New York and Washington, D.C. offices, including processing and producing electronic information and paper-based documents for law firms and regulatory matters.

SuperiorGlacier helps law firms and corporations prepare, analyze, review, and produce electronic data and paper documents for lawsuits and legal matters. Full release here.

Can you name the e-discovery expert?

 

Hint, that is not his real hair, but it is his real face and real beard. And no, its not Conan Obrien. Can you recognize him? For the answer and full story of the battle of the late night e-discovery talk show hosts, you will just have to waste some time at my blog this week. You will also see a special version of one of my favorite Escher drawings and what Browning Marean would look like if he had Jay Leno's chin (and body). Yes, it's photoshop madness at the e-Discovery Team blog.

Product Review: WiebeTech Drive eRazer

As a forensic examiner, I'm leery of offering too much guidance about how to selectively delete information in undetectable ways.  Naïve reliance by bad actors on the marketing hype for data wiping tools is a forensicist's best friend.  So, chillax bad guys: that free tool you downloaded will cover up your data theft activity.  Don't give it a second thought.  In fact, why go to the trouble of using a tool?  Microsoft wouldn't call it "deleted" if it weren't truly gone, gone, gone!

But seriously, sometimes its not only good conduct to delete data, it's good sense.  Giving away that old computer?  Need to recycle hard drives used to transfer ESI in closed cases?  Buying a used drive on E-Bay and want to be sure their porn habits don't get mistaken for yours?  Deleted just doesn't mean gone.

When you need to thoroughly wipe the contents of an entire drive, there are no cost/low cost approaches you can take ranging from free software tools like Darik's Boot and Nuke (DBAN) to activating the self-wipe routines built into hard drives manufactured since 2001.  But these require a bit more technical savvy and cabling prowess than most users possess.

So a little company called WiebeTech specializing in hardware for the computer forensic community came up with a nifty little gadget called the Drive eRazer that attaches via the most common hard drive interfaces (i.e., 2.5" laptop and 3.5" desktop PATA, plus all SATA configurations).  Then, simply sliding a switch overwrites the drive with zeroes--all without using a computer.  A drive wiped this way won't yield up data to forensic analysis but can be easily returned to service--sans its former content--with just a couple of mouse clicks.

Quality Is Job 1

Note that GM filed for bankruptcy today, not Ford, whose focus since the 1980s has been on quality. I don't really know if Ford has made a better quality car then GM, or not, but I do know that quality is essential to any product or service, including e-discovery. That is why the recent release of The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process is so important and why I have dedicated my blog this week to the subject. See Sedona on Quality: a Must-Read Commentary. 

My blog, like the Sedona Commentary, features quotes from two gentleman you might otherwise never connect, the famous jurist, Oliver Wendell Holmes, Jr. (shown left), and the contemporary science fiction writer, William Gibson, who coined the term "cyber-space." What in the world do these two have in common, and what is the connection with Quality and e-Discovery?

Trident Pro 6.0 Update

Wave Software has announced the launch of interactive searching in its Trident Pro 6.0 software. The company says that the interactive searching helps users make a determination about the effectiveness of their search terms and criteria by providing an immediate report on their list of keywords. The immediate report will show the number of hits for the total search and by keyword, mitigating false positives and erroneous hits. Once the interactive searching and culling is complete, processed data can be exported to a .pst file or a .nsf file or in its native file format.