‘Original Journal Research’ Archive
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- May 17th
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Separating the Wheat from the eDiscovery Software Chaff
There are hundreds of e-discovery software applications available. Every stage of the EDRM can be assisted by one or more commercially available applications. Some of these are designed for very specific functions, such as trial presentation, while others claim to have multiple parts that can be used at different EDRM stages, such as software that collects, processes, analyses and reviews electronic information. The marketing collateral that accompanies many of these products proclaim each of them as “the best” at what they do. They advertise various types of functions, such as near duplicate identification, conceptual clustering, predictive coding, etc. With all the different options available, how can one filter out the “sales-speak” and actually evaluate an e-discovery offering on its merits? The following tips may help: 1. Make sure the software fits you, not the other way around The reason you [...]
posted at 10:00am on May 17th
- May 16th
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Laura Zubulake: Keynote – Access Data Users’ Conference, 2012
Laura Zubulake was the keynote speaker on the second day of the Access Data Users’ Conference in Las Vegas. Just in case someone reading this ediscovery blog does not recognize the name “Zubulake”, her case is considered the foundation for the current rules of preservation for ediscovery. For the keynote address, Ms. Zubulake gave a high-level overview of her case, and the key motions. She said that most people that have written about her case actually know very little of what happened, and that the details would be available in her book, which is scheduled for release in June 2012. Ms. Zubulake said that her case was never about ediscovery… it was the result of discrimination and retaliation, and her persistence came from a desire for vindication, accountability and justice. In fact, her case happened during the “stone ages” of [...]
posted at 11:19am on May 16th
- May 15th
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First BP Charges-Not the Crime But the Cover-up Again
The DOJ filed the first criminal indictment relating to the BP Horizon oil spill. It had nothing to do with the actual spill, but was actual criminal charges over an eDiscovery cover up. When something really bad happens, it is human nature to want it to just go away. Former BP engineer Kurt Mix seems to have fallen for the same temptation to try and make the evidence disappear as such well known offenders as Authur Andersen, President Nixon and Rupert Murdoch. Reportedly, Mr. Mix wiped approximately 200 relevant text messages from him smart phone after being notified that his ESI was scheduled for collection. His purported attempt to destroy key evidence in a federal investigation has elevated his role from witness to potential felon facing up to 20 years in jail. So far, the justice department has limited their wrath to Mr. Mix, but Mesa Airlines was found liable for a similar attempted destruction of ESI in In Re Hawaiian Airlines, Inc., Debtor. Hawaiian Airlines, Inc., Plaintiff, vs. Mesa Air Group, Inc., Defendant Case No. 03-00817, Chapter 11, Adv. Pro. No. 06-90026, Re: Docket No. 373 United States Bankruptcy Court For The District Of Hawaii 2007 Bankr. Lexis 3679. I hope that this case raises awareness of the importance of documented preservation protocol, custodian communications, collection technology and compliance efforts. You want to be in a position to demonstrate that the eDiscovery team clearly communicated the external and internal consequences of non-compliance while making reasonable quality assurance efforts. “But your honor, we sent the executive the exact same preservation email every quarter for every case we have. Those notices are six pages of legalese that cover every contingency and ESI source. It’s not our fault that he panicked when we told him we were coming for his iPhone.” Let’s see how far that argument gets you.
posted at 10:20am on May 15th
- May 3rd
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The Real Winners In Technology-Assisted Review Are…
It’s time to make a call: the biggest winner in Technology-Assisted Review (TAR) will be…wait for it…expert witnesses. For those of you not familiar with the role of an expert witness, according to Federal Rule of Evidence 702, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case.” When TAR is involved, such an expert must understand software, review processes and approaches, and advanced statistics – a tall order that will likely lead to hourly rates of over $1,000 for those willing to appear in court and show off their knowledge.
posted at 9:00am on May 3rd
- May 2nd
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International Data – When your data is spread throughout the world: Interview with Jonathan Wilan, Partner at Hunton & Williams LLP
Many players within the oil & gas industry operate internationally, and this often results in discoverable data spread throughout the world. I interviewed Jonathan Wilan, Partner at Hunton & Williams LLP, to get some insights into international data privacy laws that have a bearing on eDiscovery, whether these laws create a conflict with discovery obligations in the United States, and what to do when a conflict arises. Amber Scorah: Can you give us an overview of international data privacy laws that may have a bearing on eDiscovery? Jonathan Wilan: When preserving, processing, or exporting data from a foreign jurisdiction to the United States, it is essential to consider the laws of the jurisdiction where the data is located that might prohibit or limit the ability to conduct discovery in the same manner a party might in the United States. Of [...]
posted at 9:00am on May 2nd
- May 1st
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Amazon Has A Story To Tell In eDiscovery
The more I research The Cloud and how eDiscovery will be enabled in it, the more I realize how little of the full story has been told. Last week, we reported on X1 Discovery becoming part of the Amazon AWS (Amazon Web Services) ISV (Independent Software Vendor) program. Amazon’s ISV program for AWS is very new and if you search for eDiscovery on the ISV site, you won’t get a lot of results. In fact, I don’t think even Amazon understands just how much potential there is to be the only public Cloud provider with a robust cadre of eDiscovery solutions at the fingertips of customers. That could be a differentiator, especially for serial litigants or regulated companies that want to leverage Cloud-based solutions.
posted at 9:00am on May 1st
- April 30th
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A Review of the iCONECT Global Summit 2012 – Day One
I was pleased to participate in day one of iCONECT’s Global Summit in Ft. Lauderdale, Florida last week. The Summit, designed for iConect’s clients and partners, was well done and very educational. The program consisted of sessions featuring iCONECT’s Xera product, as well as keynotes, presentations and panels on hot eDiscovery topics led by industry experts. As one of the early (1999-ish) users of iCONECT, I am excited to see how the product has evolved over the years. It is a challenge for early-to-market software to maintain the “latest and greatest” market perception that consumers are looking for. iCONECT appears to be working diligently to stay fresh, relevant and focused on customer needs as is demonstrated by its launch of iPad review capabilities and an increasingly intuitive user interface. Further, the iCONECT roadmap introduces advanced analytic capabilities. iCONECT designed its Summit [...]
posted at 11:39am on Apr 30th
- April 25th
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Vendors – A Dying Breed? Thoughts from IPRO Innovations
I always enjoy speaking at the IPRO Innovations conferences. They are a good mix of IPRO channel partners and corporate/firm customers, which makes for an excellent market sampling without the crazy crowds or sales intensity of Legal Tech. The IPRO team knows how to create a fun, relaxing atmosphere with enough real content to keep attendees engaged. You may have noticed my deliberate use of the slightly pejorative term “vendors” in my headline. I normally prefer ‘service providers’ to call out the ‘service’ and expertise that I hope is part of every eDiscovery project. ‘Vendor’ has always reminded me of a bulk commodity seller, think of Walmart selling eDiscovery.
posted at 11:35am on Apr 25th
- April 24th
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Are we Pricing Ourselves Out of Business?
“Are we Pricing Ourselves Out of Business?” That was the first thing I heard when I answered an early morning phone call last week. An industry veteran and long-time friend was on the other end of the line. We went on to have a very interesting conversation that I think is important to open up to the general eDiscovery public. (For purposes of this blog, I will maintain my friend’s anonymity and hereinafter refer to him as “Vendor Veteran”.) This is not the first time we have blogged about pricing on the eDiscovery Journal. Most recently Jason Velasco and Sarah Hankins published blogs on the topic, both drawing comments from readers. Cost and pricing models have been a hot topic since Jason’s early “glory days” of provider collection and processing. Pricing clearly remains a relevant topic in eDiscovery. As Jason, Sarah [...]
posted at 9:00am on Apr 24th
- April 23rd
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The Evolving Trends of Social Media eDiscovery: Tidbits from the Masters Series 2012 in San Francisco
The Masters Series completed its latest installment last week in San Francisco. Its purpose is to shorten the divide between the recent technological advances in eDiscovery, data protection, records management, and other relevant areas. Although various topics involved eDiscovery, such as procurement, predictive coding, IP litigation, and data privacy, this article focuses on the knowledge shared in the realm of social media (“SM”). The most astonishing SM revelation was the vast digital footprint left behind by our mobile devices and what can happen to this data during acquisitions of the companies tracking this information. Neal Lawson of iDiscovery Solutions, Inc. opened up the presentation with this hypothetical scenario: Neal’s wife wanted him to use a Whole Foods‘ Groupon to purchase some groceries, He then checked traffic and parking conditions using a mobile app on his mobile device, He checked-in [...]
posted at 10:04am on Apr 23rd