Monthly Archives: January 2024

My definition of Dark Data differs from Wikipedia:“Data relevant to a discovery request that is either never disclosed or is produced without contextual information that could affect the interpretation of that data.” My first interview on cloud sources as discovery targets turned up surprising frustration from the savvy eDiscovery Counsel for a national plaintiffs firm. I expected to hear about immature collection capabilities and defendant’s who struggled to preserve or collect from Office 365, SalesForce or other cloud systems. I did not expect that requesting parties might be completely in the dark about where a production comes from or how it was collected. eDJ’s consultants have had too many recent engagements supporting the evaluation or migration of email and files to the cloud to doubt the trend. Microsoft has been touting the rapid adoption of Office 365 with corporate and public sector verticals. Many corporations seem to have moved critical ESI to the cloud without a clear plan to meet eDiscovery and Information Governance requirements.

Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2013-06-18 11:53:55  How many times have you participated in a conversation about a legal hold directive that starts with “You want me to hold what?”  My guess is likely not enough.   This was a hot topic at the eDJ Boot Camp on Legal Hold held in Atlanta earlier this month.  It was also a point of discussion [...]

Last week was the Today’s General Counsel Institute “Corporate Exchange” event in Chicago. I hadn’t been to one of their events in a while and I expected the discussion to range across all phases of discovery, but actually it centered around Preservation. And why not? If you don’t get the identification/preservation right it can be “Tilt” (also known as Spoliation), “Game Over!” “Do not pass go” Go directly to Sanctions or worse, an adverse inference.

eDJ’s new report, “Predictive Information Governance: The Time Has Come,” looks at how Predictive IG works and how it can positively impact multiple use-cases.

Migrated from eDJGroupInc.com. Author: . Published: 2013-06-25 16:27:54  I just returned from my trip to China and the week overseas went by very quickly.  As much as I’m glad to be back in Austin, I already miss the new friends I made in China.  I will be doing more in depth analysis on my experiences and what I’ve learned on eDiscovery in Asia, but [...]

As announced in Barry Murphy’s March 2013 post, Legal Hold Notification (LHN) is on our analysts' radar and research agenda. LHN, although not a “new” eDiscovery topic, continues to be a current conversation and hover at the top of the priority list for corporate legal departments. The first report in the series, Bring Legal Holds to Life, was published in April and lays out the framework for developing an effective legal hold program. The next step is to frame out our analysis of the technologies on the market.

One of the most interesting predictive coding cases going on right now is In Re: Actos (Pioglitazone) Products Liability Litigation (United States District Court of Louisiana MDL No. 6:11-md-2299). The complexion of the case recently changed as the parties who originally agreed to use predictive coding (and in an innovative twist to even train the predictive coding software together) are now fighting over what the results mean. According to court documents filed by both parties (all available on the PACER website), the cooperation experiment is over and both sides are unable to find common ground to resolve their dispute over how next to proceed with the predictive coding results (see Defendants’ Opposition to Plaintiffs Motion to Compel Production of Documents (“the Defendants’ Brief”) and the Plaintiffs’ Steering Committee’s Motion to Compel Production of Documents and Memorandum to Support (the “Plaintiffs Brief”)).

Preparations for our eDJ webinar on the Dodd-Frank Act’s impact on IT next Thursday pushed me to dig further into the new CFTC record keeping requirements covering mobile devices, social media and mobile phone calls from the perspective of our guest legal speakers. As analysts, we tend to prioritize the technical, practical and market implications of new requirements over their potential strategic litigation impact. We are lucky enough to have former U.S. Magistrate Ronald Hedges and Pillsbury Winthrop Shaw Pittman’s eDiscovery Partner David Stanton to add their perspective to our webinar discussion. Although the new rules only cover communications directly relating to pre-execution of trades (see rule language below), they will require market participants to invest in capture, retention and retrieval capabilities that are clearly relevant to corporate eDiscovery obligations. This may result in a new wave of burden and accessibility arguments before the bench. Essentially, Dodd-Frank ‘could’ blow the lid off of the BYOD/cloud Pandora’s box. Too many litigants rely on a Don’t-Ask-For-Mine quid pro quo strategy to ignore these new, complicated data sources. When global corporate hedge and pension management exceeds the end-user exception threshold, corporate legal departments may suddenly find that their custodian’s mobile phones, IM and even phone calls migrate to active, accessible sources of ESI that must be preserved and collected. My experience is that discovery trends and expectations follow regulators and the big boys.

Many people joined me in assuming Dodd-Frank was just increased regulation of Wall Street following its 2008 meltdown, but boy, were we wrong. It’s pretty much about any and all US publicly traded companies, as well as most financial entities. As the SEC says about their own intentions, Dodd-Frank is “a framework that will support an entirely new regulatory regime”.

In the midst of a summer swoon and a New England heat wave, eDJ and Review Less launch the Predictive Coding Thought Leadership Series next Monday, July 22 in Philadelphia. This should be a great event, featuring facilitators from leading law firms like Schnader Harrison, Morgan Lewis and Pepper Hamilton as well as corporate facilitators from companies like Dupont (special thanks to event sponsor AlphaLit for making it possible to bring this cost-effective training to the market).The cost is only $150 for three CLE hours and the opportunity to get detailed education on Predictive Coding. If you would like to register, you can do so here: http://pcthoughtleadership.eventbrite.com/. This series will come to other cities throughout the fall – you can keep track here: http://ediscoveryjournal.com/programs/predictive-coding-thought-leadership-series/.