EDD Update

Law Technology News Daily Alert

We've launched our Law Technology News Daily Alert!  It's a joint project managed by Law.com's tech editor Sean Doherty and LTN editor Monica Bay -- the same combo that brings you this blog! To subscribe, click here.

FTC Uses Equivio

Maryland’s Equivio has announced that the U.S. Federal Trade Commission is using Equivio’s near-duplicate and e-mail thread technology to enhance its litigation efforts by expediting electronic discovery processes. The e-mail thread and near-duplication grouping helps attorneys skip redundant data to focus exclusively on the unique information in each document. The grouping also help ensure similar documents are treated consistently so litigators can meet tight deadlines. The FTC purchased Equivio’s technology via TechLaw Solutions, an e-discovery company that works with governmental agencies. through a GSA schedule. Full release here.

Adduci, Mastriani & Schaumberg Use CaseLogistix

Anacomp has announced that international trade and intellectual property litigation firm Adduci, Mastriani & Schaumberg (www.adduci.com) is using the hosted version of its CaseLogistix litigation support software.
The firm’s Washington, D.C. office is using CaseLogistix to help its legal teams collect, organize, review, and produce electronically stored information.

The firm is using the hosted CaseLogistix with Anacomp’s (www.anacomp.com) docHarbor review software. Full release here.

Ikon Launches Litovation Solutions

Ikon Office Solutions has launched Ikon Litovation Solutions, which integrates legal technology and services to provide litigation support and document management services. Services include e-discovery, data forensics and document imaging. Full release here.

The Aleynikov Affair: From Newark with Code

In D.C. last week, I spoke to a group of data security specialists and computer forensic experts about the type of case I see most frequently.  Unlike most in the audience, I work in civil litigation and see little of the child porn, identity theft and hacking cases that occupy them.  Much of my work concerns alleged employee data theft, so I addressed the prevelance and patterns of those cases, discussing incident response fundamentals, e.g., what to preserve and where and how to look to determine the whether, when, who and how much of proprietary data theft.

I was fortunate the day's big news story was of a lately-resigned senior programmer at Goldman Sachs arrested at Newark airport for allegedly spiriting away a copy of Goldman's trading program code.  My topic seemed ripped from the headlines.

Equivio Launches Relevance

Maryland-based Equivio’s (www.equivio.com) new Relevance system uses statistical and self-learning techniques to calculate graduated relevance scores for each document in the data collection after initial input from  a lead attorney, says CEO Amir Milo.

A statistical model is used to calculate the precision  of the software and provide measurable e-discovery results and ensure transparency. By organizing the data sets by relevance, attorneys can immediately focus on the most relevant documents. Full release here.

VeData Map 2.0

E-discovery software provider Visual Evidence/E-Discovery has released VeData Map 2.0, a service that creates a network data map of how a company creates, accumulates, and circulates electronically stored information.

The company says the data map provides companies with a visual diagram of an organization’s systems, applications, and processes that their business divisions commonly use. Full release here.

E-Discovery Plain & Simple Book

Allison Brecher, senior litigation counsel and director of information management and strategy at Marsh McLennan Companies and Shawnna Childress, executive director and co-founder of Women in eDiscovery have released their new book, eDiscovery Plain & Simple. The book explains law of both electronic discovery and information technology using graphics and checklists, explaining the information technology attorneys need to do their jobs.

Spektor Forensic Discovery Tool

Evidence Talks has released the Spektor Forensic Discovery tool to help users collect and preserve information from computers while ensuring the legal and forensic acceptability of the data. The portable Spektor Control Pod can retrieve and preserve data from hard drives, memory sticks, digital cameras, and other media such as CDs or DVDs.  The pod forensically wipes, verifies, and configures Spektor Collector devices. Full release here.

Nuix Upgrades to 2.18

Nuix has upgraded its e-discovery software to Nuix 2.18. “The biggest architectural change to Nuix’s eDiscovery software in 2.18 is our parallel export processing,” says Stephen Stewart, Nuix’s chief technology officer. “Nuix software was designed to use all of a server’s processing power when processing data, and was very fast. Prior to 2.18, it could only leverage one processor for exporting.” Full release here.

Catalyst Upgrades to 8.5

Catalyst Repository Systems has announced Catalyst 8.5. The upgrade adds 35 features, including support for dual monitor review to help users view documents and see more review fields. The upgrade also helps users create their own forms and macros. Review team folder trees help administrators supervise their review teams. Full release here.

CaseCentral Launches Early Case Assessment Tool

CaseCentral has announced its early case assessment tool, which integrates with its litigation review and production software. Full release here.

Mimosa Systems Upgrades to 4.0

Mimosa Systems has upgraded its Mimosa NearPoint to 4.0. NearPoint captures e-mail, files, SharePoint content, and instant messages and provides legal search workflow and case management. Full release here.

Gibson Dunn & Crutcher e-Discovery Statistics Reveal New Trends

In a July 2009 publication by Gibson Dunn & Crutcher (Gibson), the results of a review of more than sixty federal and state court opinions were released. And the results are very telling. Parties are bringing more e-discovery issues to the court, and the courts are awarding more sanctions. Also, it's not just civil parties, but also government entities that the courts are addressing with these obligations.

In the analysisof 61 cases, 32 (52%) of the opinions involved the consideration of sanctions, which were then awarded in 22 (69%) of the cases that considered sanctions. Many of the opinions address, or detail, duties to preserve relevant data and consequences of not doing so.

Not surprisingly, the courts continue to urge transparency and cooperation among counsel.

Prior to the now-well-known changes to the Federal Rules of Civil Procedure for e-Discovery, Shira Shindlin and Kanchana Wangkeo published "Electronic Discovery Sanctions in the Twenty-First Century". That paper outlined 66 Federal and State Court opinions between 2000 and 2004 and found that sanctions were awarded in 65% of the cases.

The quick conclusion is that the rate of sactions between 2004 and 2009 has increased slightly (69% versus 65%) but that the number of issues before the court has climbed dramatically from 66 in a four-year period to 61 in a six-month period. This is an increase of 740%!!

In Shindlin's study, adverse inference instructions were awarded 23% of the time. In Gibson's study they were awarded only 16% (5 times). This may indicate a willingness for courts to have parties work through the issues, or it may be too little to interpret.

Either way, Gibson's study sheds new light on the trends of 2009, and by comparison, the trends in a post-FRCP world. The two papers are still available on-line. Shindlin's paper is here:

Electronic Discovery Sanctions in the Twenty-First Century

Gibson Dunn's mid-year report is here:

2009 Mid-Year Update on E-Discovery Cases

One item that Gibson's study highlights is the increased cooperation sought by the courts. This was not addressed in Shindlin's paper. What is yet to be seen is how much this cooperation is increased by the work of groups such as the Sedona Conference, which has been promoting a paper on cooperation called the "Cooperation Proclamation" (disclaimer: I am a long-time member of the Sedona Conference). That paper, in it's public version, can be found here:

The Sedona Conference Cooperation Proclamation

This paper, the work of many different individuals on both sides of the bar, has been gaining dialog, if not traction, in relegating adversity between parties to the merits, not to the technologies.

It would be most interesting, and most valuable, if Gibson will put out a consolidated study at the end of 2009. I'm reluctant to call for such a publication because there was surely a lot of work involved in the current publication, but the value and the service to the community would be immense.

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Dan Regard is a Managing Director with Intelligent Discovery Solutions, Inc. He is a testifying expert on issues of e-Discovery and is also an editorial advisory board member of Law Technology News. he can be reached at dregard@idiscoverysolutions.com.

Preservation of Disaster Recovery Backup Tapes?

From John Jablonski, partner, Goldberg Segalla*:

Do you need to preserve disaster recovery backup tapes that contain relevant ESI? Guidance from commentators and case law is mixed. The Federal Rules of Civil Procedure are silent on whether disaster recovery backup tapes need to be preserved when implementing a litigation hold. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on backup tapes that a party deems not reasonably accessible. See FRCP 26(b)(2)(B). Assuming backup tapes are preserved and identified as not reasonably accessible, will the tapes ever be subject to discovery? In short, yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).

In Kilpatrick the court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes is not reasonably accessible. While the case does not address the question of preservation directly, it stands as a warning. Defendant repeatedly represented that active ESI met its discovery burden. Defendant also advised that additional relevant ESI might be contained on backup tapes, designated as not reasonably accessible because they were maintained for disaster recovery purposes only. Plaintiff was not buying it and moved to compel production of the backup tapes. The court agreed that the ESI produced so far seemed to have some holes and compelled limited production from the backup tapes.

From John Jablonski, partner, Goldberg Segalla*:

Do you need to preserve disaster recovery backup tapes that contain relevant ESI? Guidance from commentators and case law is mixed. The Federal Rules of Civil Procedure are silent on whether disaster recovery backup tapes need to be preserved when implementing a litigation hold. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on backup tapes that a party deems not reasonably accessible. See FRCP 26(b)(2)(B). Assuming backup tapes are preserved and identified as not reasonably accessible, will the tapes ever be subject to discovery? In short, yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).

In Kilpatrick the court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes is not reasonably accessible. While the case does not address the question of preservation directly, it stands as a warning. Defendant repeatedly represented that active ESI met its discovery burden. Defendant also advised that additional relevant ESI might be contained on backup tapes, designated as not reasonably accessible because they were maintained for disaster recovery purposes only. Plaintiff was not buying it and moved to compel production of the backup tapes. The court agreed that the ESI produced so far seemed to have some holes and compelled limited production from the backup tapes.

Fios Expands Information Governance Services

Fios has expanded its information governance services to help clients reduce costs of managing electronically stored information in response to litigation and governmental investigation. The information governance consulting services include assessment and planning for records management and retention policies. Full release here.

Kroll Ontrack Adds Near-Duplicate Detection, E-mail Threading

Kroll Ontrack has upgraded its Ontrack Engenium Advanced Search technology to include e-mail threading and near duplicate detection, which helps companies improve the consistency of their document search software by adding content grouping abilities. Full release here.

Daegis Adds Document Review Service

E-discovery provider Daegis has added document review to its offerings. The company says its document review services extend the company’s reach in the litigation support lifecycle. The company provides litigation support from information management and early case assessment through document review and production. Full release here.

"Pig in a Poke" Sanctions Defense Finally Works

My blog this week examines an interesting case in Delaware state court where a variety of sanctions defenses were tried, including what I like to call the "pig in a poke" argument. The old “Sick Computer,” “Pig in a Poke,” and “Somnambulist” defenses were tried again recently with no success. They all failed, including the pokey argument. Tonight I just discovered a new case in Pennsylvania where the pig in a poke argument actually worked. Phillips v. Potter, 2009 WL 1362049, *5 (W.D.Pa. May 14, 2009). 

One of the good things about blogs and electronic writing is the ability to change what you wrote at any time. So I just added this case to the blog I posted Sunday night where I said that the argument does sometimes work, but did not give a cite. Now, viola! There is a citation. It looks like I knew about this case all along and no one will be the wiser, except of course for you, and I'm sure you won't tell.

E to the F Power

Along with Ralph Losey, Tom O'Connor and other commentators, I've painted many a pixel importuning lawyers to learn the ways of electronic discovery.  Between us, we've variously employed the "M" word (malpractice), the "E" word (ethical duty), the "C" word (competitive advantage) and the "S" word (sanctions).  I don't know that any of us have gotten much traction.

But now a court has used the "F" word...the one that really grabs lawyers by the short hairs: fees

Prescient Decision - No Duty to Agree to Quick Peek

A recent well-reasoned decision from Wisconsin provides an important cautionary speed bump on the rush to force litigants into involuntary "quick peeks." The court in Kay Beer Distributing v. Engergy Brands, 2009 WL 1649592 (E.D. Wis. June 10, 2009) refused to compel production of the results of preliminary search of e-mail containing culled (for overlapping data) material from 13 gigabytes of data. The court recognized that the costs for a further review were excessive ("cost of conducting such a review in attorney time alone is estimated at almost $120,000").

The party seeking the discovery wanted the data so "it may conduct its own search of them for the relevant information to which it claims its [was] entitled"  but had refused to work with counsel "in formulating search terms to locate emails that might be relevant."   The court rejected the argument that the producing party had a duty to cough up this material without further ado because privileged material could always be clawed back.  The court held that "the fact that Energy Brands did not want to add to the ESI it would have to review is not evidence of recalcitrance," and there is no obligation to utilize R. 26(b)(5)(B), since "a clawback arrangement does not spare" the need to review information that it may wish to withhold on because not discoverable or contains "the kind of proprietary or confidential information" a party "simply prefer[s] not to disclose."

Staying Current

There is such a flood of electronic discovery information that it can be a considerable challenge to stay current. The electronic discovery blogosphere is blessed to have sites like EDD Update and such prolific and trenchant contributors as Craig Ball and Ralph Losey. Their posts are mandatory reading.  In addition, I use www.alltop.com to stay current.   Alltop has a section devoted solely to electronic discovery.  There is a wealth of current information for rapid perusal. At last count, it gives the headlines for some 22 blogs and websites covering most of the e-discovery field.  It is also possible to create your own page which provides updates for those topics of interest to yourself.  I am sure you will find it a useful site to bookmark, but only after you visit EDD Update first!

How Mad Scientists Handle e-Discovery

The scientist in a new case was mad as hell when his new employer fired him after he and the employer were sued by his old empoyer. So what did he do? He deleted all of his emails and other ESI of course!  Beard Research, Inc. v. Kates, 2009 WL 1515625 (Del.Ch. May 29, 2009). That's only the beginning of the wacky escapades of this defendant to litigation. He engaged in an escalating series of tricks to make sure his ESI would never be recovered, climaxing in the "old-switcherro" maneuver where he put a new hard drive in his lap top. Apparently his lawyers played into his hand by sleep walking though the beginning of the case and not advising him to preserve his computer files until two years after the suit was filed and emails were requested. The story does not end well for the scientist when he encounters good opposing counsel and a smart judge who sees through all of the smoke screens and clever arguments. Read all about it in my latest blog entitled:  The old “Sick Computer,” “Pig in a Poke,” and “Somnambulist” defenses were tried again recently with no success." 

New Technology Awareness - Google Operating System

This week the most visited website in the world, Google, announced their plans to market the new Google operating system called Google Chrome OS.  Most Personal Computers (PCs) currently run on operating systems from either Microsoft or Apple.  Unlike Microsoft and Apple, the Google Operating System is an open-source project so many outside developers are likely to develop on it.  Another benefit is that Google is offering this new operating system for free. We are yet to see how the marketplace will accept the new Google Chrome OS, but one thing is sure that this will shake up the PC market.  We may soon be seeing electronic discovery requests that involve the Google Chrome OS so asking the question of a custodian "Is it a PC or Mac?" may not be enough.  Our new line of questioning may need to be "Is it a PC with the Microsoft OS, Google Chrome OS or a Mac?". 

Looking for EDD Update Authors!

As part of our commitment to keeping this blog fresh, and to provide a venue for new voices (and always for diversity), we're looking for a few more authors to join EDD Update's discussion.

If you are interested, or want to nominate someone who you think would be terrific, e-mail me at monica.bay@incisivemedia.com. Eligible folks include legal professionals (lawyers, IT staff, paralegals, etc.) in law firms, law departments, or independent consultants.

Sorry, vendors are not eligible. However, vendors are thoroughly encouraged to dive vigorously into the discussions via comments and are welcome to submit "guest" posts to us.

Mon

SANS Summit Summary

I just returned from two days at the SANS What Works Summit in Washington, D.C.  The capital weather was gloriously, unseasonably cool, but the Summit was cooler still (and not just because the ballroom temperature hovered near absolute zero).  The talented presenters didn't disappoint.  The leading lights in forensics and information security shared their tips, tools and insights; but, excepting a splendid lightspeed discussion of registry analysis by the oracular Harlan Carvey, I'm struck by how far the discussions strayed from disk forensics and other matters of pressing, practical concern in e-discovery and civil litigation.   Certainly mobile devices are increasingly important and memory analysis is exciting and new, but it made me wonder if we aren't moving beyond "dead disks" too soon.  Has everyone mastered disk forensics?

Iris Data Opens Perth, Australia Office

Iris Data has expanded, opening new offices in Perth, Australia. The e-discovery company’s services include tape restoration, computer forensics, e-discovery, and online review with their Unify review platform. The production center is located in Joondalup, a suburb of Perth. Full release here.

DTI Partners with Legal Solutions Inc.

Document Technologies Inc. has partnered with Legal Solutions Inc. to provide collection, discovery processing, hosting, and attorney review services. Full release here.

Equivio Partners With eDiscovery Solutions Group

Equivio has announced a partnership with eDiscovery Solutions Group to provide consulting, training, and system integration support for Equivio’s near-duplicate and e-mail thread technology.

The partnership will make available eDiscovery Solutions Group staff to assist Equivio clients with e-discovery consulting, document review best practices, and user training for document management platforms.

EDiscovery Solutions Group staff will also be able to help software vendors to integrate Equivio into internal legacy systems and will sell Equivio as a component of its e-discovery services. Equivio’s products group near-duplicates, capture e-mail threads, and compare documents, powering e-discovery, records magnement, e-mail archiving, and data retention applications. Full release here.

California's New Electronic Discovery Act Signed into Law

On June 29, 2009, California Governor Arnold Schwarzenegger signed into law the Electronic Discovery Act.  As an overview, California's new e-discovery rules are comparable to the changes to the FRCP in December 2006.  The California Electronic Discovery Act amends and adds to the California Code of Civil Procedure to provide a series of procedures for a litigant to discover or object to discovery of Electronically Stored Information (“ESI”).  The Act incorporates into the Code many of the same provisions regarding ESI found in the Federal Rules of Civil Procedure ("FRCP"), so practitioners familiar with the changes to the FRCP in 2006 will understand many of the new provisions in the amended Code. The Act took immediate effect and thus litigants in California courts are expected to immediately comply with them.  One noticeable mention is that the act requires the parties to meet and confer regarding discovery of ESI 45 days prior to the case management conference regarding discovery in California state court.

To read the Act, please click here.

How do pirates respond to e-discovery?

What goes on in the head of a digital pirate who is hauled into court? A recent case in New York gives us a pretty good idea. Arista Records LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009). All images of Johnny Depp aside, tis not a pretty sight. Perhaps I had too much rum, but I let myself go-creative this week in my blog and imagined what might be going on inside the head of a digital pirate. I think it is something like this: 

Arrrr. Mateys … Here’s what we do. We hide the treasure and destroy the evidence. No nay they’ll ne’er be able to convict us then. The land lubber lawyers and scurvey dog judges are too lily-livered to stop us. Aye. We gentlemen o’ fortune be above their laws. Aye. Information wants to be free; yo ho ho! Just so long as we gets our cut and not the Scallywags.

If you are not fluent in pirate yourself, you might want to consult the Talk Like a Pirate website for a full translation.

I then go on to explore the facts and holdings in the case in depth, including the many tricks the pirates played to try to hide the evidence. Arr. Who says legal writing can't be fun?

The New Smoking Gun...Social Networking Sites

As I was getting the kids ready for their camps this morning, I was watching an interesting interview with a psychologist on our local news station.  They psychologist quoted numerous studies about human emotions and said that overwhelmingly the studies proved that people make decisions based on two of the seven emotions: pleasure and fear.  That is not surprising, but if you take a moment to truly think about it, it is eye opening in our world of e-discovery.  I believe the new e-discovery frontier is upon us...social networking sites where pleasure and fear are logged instantaneously and honestly.  In the world we live in today, everyone is linked instantaneously through numerous technologies.  Some even tweet their every minute, every emotion and every feeling.  I was visiting an acquaintance's facebook last week and she put on there "I am sick of this and I am leaving him." 

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.