EDD Update

2008 Socha-Gelbmann EDD Survey Sneak Preview

The anxiously awaited 2008 Socha-Gelbmann EDD Survey executive summary will be published in the August issue of Law Technology News, but here is a sneak preview to whet your appetite.

This year we gathered information from or about 107 EDD services and software providers, and from 29 law firms and 19 corporations.  Using more than 350 qualitative and quantitative factors, we ranked those providers - top overall EDD services providers, top overall EDD software providers, and top EDD providers in various categories.  Although one can, and perhaps should, take issue with the specific rankings, we feel that the providers listed below represent the best of the best, an elite cadre singled out from a field of well over 600 organizations that offer some form of EDD services or software.

Qualcomm Firms Can Disclose Work Product

Our colleague Jessie Seyfer of The Recorder reports on a Friday ruling in the Qualcomm/Broadcom litigation:

A federal magistrate cleared the way Friday for Qualcomm's former outside litigators to publicly explain their roles in the company's failure to turn over hundreds of thousands of discoverable documents.

And if the lawyers' explanations don't adequately get to the truth of what happened, the judge will consider sanctions against Qualcomm itself, according to attorneys involved in the case. San Diego, Calif., federal Magistrate Judge Barbara Major had earlier threatened sanctions against all of Qualcomm's outside counsel.

Major ruled at a hearing Friday that the attorneys, from the Heller Ehrman and Day Casebeer Madrid & Batchelder firms, can file declarations with the court by Wednesday shedding light on why the documents weren't turned over.

Full article here.

Catalyst: Foreign Language Translation

John Tredennick, CEO of Catalyst Repository Systems Inc., offers this white paper, "Dealing with Foreign Language Documents in Litigation and Other Legal Matters."

You can download it here.

Morgan Stanley: $12.5M for e-mail "lost" on 9/11

From Reuters (Jonathan Stempel):

Morgan Stanley (MS.N: Quote, Profile , Research) will pay $12.5 million to resolve charges that it failed to produce e-mails in arbitration cases and falsely claimed the e-mails were lost in the Sept. 11, 2001, attacks. The settlement, announced Thursday by the Financial Industry Regulatory Authority, which regulates brokerages, calls for the brokerage firm to pay a $3 million fine and $9.5 million into a fund to compensate several thousand investors who filed arbitration complaints.

It also resolves charges that Morgan Stanley failed to provide other documents to arbitration claimants. The bank will hire an independent consultant to ensure it provides materials to retail brokerage clients in arbitrations. It did not admit wrongdoing.

Commentary: Information Governance Engagement Area. Post Process.

PSEG Power NY v. Aberici Constructors Inc.

Summary from The New York Law Journal: Sept. 21 2007, Magistrate Judge Treece.

DEFENDANT CONSTRUCTION firm was the principal contractor for plaintiff power company's $25 million power plant outside Albany, New York. In plaintiff's 2005 action seeking $4.4 million for defendant's improper performance of - and failure to complete - work and defendant's $11.4 million countersuit both parties made complex documentary discovery requests.

Littler Hires Weiner as National EDD Counsel

Littler Mendelson has hired Paul Weiner as its national e-discovery counsel, reports Vesna Jaksic of The National Law Journal: (subscription req'd).

"Weiner will provide guidance on electronic discovery and knowledge management issues. The firm said Weiner, an expert on e-discovery, will bolster expertise in the firm's privacy and data protection group. Weiner, who was previously a partner in Pittsburgh's Buchanan Ingersoll & Rooney, will be based in Philadelphia," reports Jaksic.

Insurers Want Their Say in Doc Retention Policies

Michael Eng's Discovery Navigator cites this article from our sibling publication, The National Law Journal, that reports that insurance companies are not getting into the act. (Subscription required to access directly from NLJ link, but Eng has a PDF on his site.)

Microsoft Live Search Gets Overhaul

From eWeek.com, this article by Peter Galli says Redmond's Live Search has improved its core search technology, and now positions itself as matching  Google and and exceeding Yahoo. Try it here.

Clearwell Systems partnership

CommVault and Clearwell Systems are offering joint e-discovery, risk mitigation, and compliance services. To understand why, read the Clearwell press release.

iConect partnerships

California's iConect Development has added several tools to its EDD software, including automatic coding from Rosen Technology Resources Inc. and near-duplicate detection from Syngence Corp. For information about the partnerships, click here and here.

Capital Legal Solutions partnership

EDD consulting company Capital Legal Solutions has partnered with staffing firm Robert Half Legal. For the full story, click here.

It was only a matter of time...

I knew it was only a matter of time before I saw a lawyer crash and burn seeking admission of electronic evidence.  Then, I saw it twice. 

The first time, in Federal court last week, the evidence was a spreadsheet of filenames and their metadata.  The file had been hashed, so it would be quick and easy to authenticate.  But the offer was an ugly printout, badly word wrapped and awkwardly straddling many pages. 

When the court asked, "Any objection?," the somewhat sheepish reply was, "Yes, your honor, we've never seen this before."  and, strictly speaking, that was true.  They'd only seen the native file and its rows and columns neatly spread across their LCDs.  They conceded it was doubtlessly the same information furnished in native format, but they simply couldn't confirm that from the mish mash presented on paper.  To their credit, they offered to withdraw the objection if counsel making the offer would represent that the printout and the evidence produced were one-and-the same, but the court asked the offering attorney to submit the source data.  "Don't you have a disk?," the judge asked. 

Now, it was the offering attorney's turn to feel sheepish.  "No, we received it by e-mail."  I could see the wheels in his head turning.  The data was the subject of a hard wrought stipulation between experts, and he'd let his guy go.  I'm sure he was wondering who could prove it up, and I started thinking I was going to be called as an adverse witness.  Ultimately, it came down to a good faith belief that the offering party wasn't pulling a fast one, and the objection was withdrawn.  But, a key piece of evidence nearly bit the dust.

This week, in state court, it happened again.  I was on the stand testifying as the neutral examiner.  Plaintiff's counsel showed me copies of corporate minutes and asked if I'd ever seen them before.  I looked at them, saw they were signed and had to say, "No."  There was that deer-in-headlights look again.  In my forensic examination, I'd only come across the source word processing files.  No one had signed those...yet.  They hadn't printed the evidence I could authenticate.  Once again, the other side let it slide.  But, can we always rely on an accomodating opponent?  No, I didn't think so.

The lesson: When offering ESI in a form other than as produced--printout, TIFF, transcript or whatever--you'd best furnish the converted form to the other side and afford them an adequate opportunity to compare the two.  The other side is no more obliged to accept your printout of a spreadsheet on faith than to accept an uncertified transcript of an audio recording.

Craig Ball

2007 Socha-Gelbmann Electronic Discovery Survey results - So What?

Now that Tom Gelbmann and I have published our revised 2007 Socha-Gelbmann Electronic Discovery Survey results (original LTN article,  corrections and Socha Consulting site) - what do they mean anyway?

Not surprisingly, I have some thoughts on the matter.  I would like to hear what others have to say, but let's start with just one aspect of our survey results - the provider rankings - and tackle Ranking Misconception Number One.

Altep Releases Inspicio

Altep Corp. has released a web-based document review program called Inspicio. For the complete release, click here and for specifications about the product, click here.

Fear & Confusion

Here's a sneak preview of our October Law Technology News cover story, "Fear & Confusion." It contains the insight of many of our EDD Update blog authors, and I thank them warmly for their help. Also thanks to the many EDD vendor leaders, who also contributed their wisdom.

Among those quoted in the story are "The Toms" (Gelbmann, O'Connor & Allman); George Socha; Browning Marean; Craig Ball; George Rudoy; Patrick Oot; and Michael Arkfeld, to name just a few of the folks who provided their expertise to help us all understand this complex and vexing technology.

RAM Data Dilemma

Can you imagine drafting a litigation hold letter for your opponents RAM data? What do you think you will see? Compare opening a garage door on a windy spring day after a long, hard winter.

Arkfeld Pens Deal with LexisNexis

Congratulations to Michael Arkfeld, (one of our new blog's co-authors), who has just signed a deal with LexisNexis to publish his popular EDD treatises and newsletter, including the just-released second edition of his Arkfeld on Electronic Discovery and Evidence.

For more info, click here and here.

CCH Workflow Incorporates Discovery Cracker

CCH Workflow Solutions has incorporated electronic data discovery software Discovery Cracker 5.0 from Doculex Inc. into the suite of technology it uses to conduct EDD for its clients. Get CCH's release here.

Welcome to EDD Update

We are delighted to welcome you to our new EDD Update blog, which we hope will become an invaluable resource to you as we all navigate the exploding area of e-discovery.

This new blog is a joint project between Law Technology News and Law.com's Legal Technology, and is coordinated by Sean Doherty, Law.com's tech editor, and Monica Bay, LTN's editor in chief, with the able assistance of Claire Duffett, LTN's News Editor.

The heart of the blog will be our cadre of authors -- gathered from our respective editorial advisory boards. You can see the list over there on the  right nav bar, with links to their websites or blogs. As you will quickly notice, it's an amazing crew, with tremendous and nuanced expertise.

Our concept of this blog is to provide a venue where we can post breaking news, key verdicts and judicial rulings, articles from Law.com and LTN, vendor press releases, and more -- and most importantly, where our expert authors will offer their fine-honed analysis and comments.

And speaking of comments, that's where YOU come in! We encourage you to dive right into the discussion. We look forward to some very lively debates! The only ground rules: To comment, you must use a verifiable e-mail address, and you must disclose any affiliation that would affect the perception of your comments (translation: vendors, you can't hide behind fake names and sing the praises of your new products.) And  a gentle reminder that the word "solution" is banned -- and all other jargon is strongly discouraged. :)

So here we go!

Cordially,

Monica Bay (LTN) & Sean Doherty (Law.com)