Essays

The Da Silva Moore case is quickly becoming a landmark matter in the eDiscovery realm. The use of Technology-Assisted Review (TAR), specifically predictive coding, in the case is the subject of much scrutiny at the moment. eDiscoveryJournal has covered the case extensively, including being the first to note that early headlines got Judge Peck’s opinion wrong – he had not ordered the use of predictive coding in the case or endorsed the technology of any single vendor; he had simply approved of the defendant’s use of predictive coding in this case.

Last week I was a panelist at the 2012 Masters Series event in Houston and enjoyed the lively and frank discussions about purchasing trends, privacy issues and more that continued into the social gathering afterward. As you might expect, predictive coding and the latest Da Silva filing were a hot topic, especially amongst providers of managed review. One remark by Jim Wagner, CEO of DiscoverReady, resonated with me and I told him that I was going to steal it for a blog. To paraphrase, “The market sees linear review as disorganized review.” He was right on target. Linear review has become synonymous with plowing through millions of randomized email/documents in the least efficient or effective manner. I ask you, “In the last 5 years, have you reviewed collections that had not been culled, searched, prioritized, deduplicated, email threaded or otherwise optimized for review batching?”

Migrated from eDJGroupInc.com. Author: . Published: 2012-03-27 12:26:32  I found out this morning that an old friend, Jim Burns, passed away over the weekend.  For those that knew Jim, he was warm and friendly to everyone he met with a smile that made you immediately comfortable.  Jim and I were the original "tape guys" in the early days of the EDRM's evolution and we [...]

As I prepare for a keynote that I am delivering next month at a records management conference on behalf of a state government, I thought of how an organization may integrate the Association of Records Managers and Administrators’ (ARMA) Generally Accepted Recordkeeping Principles (GARP®) into their electronic discovery (eDiscovery) processes. Assimilating the GARP® principles into eDiscovery, specifically the tasks associated with the Electronic Discovery Reference Model (EDRM), can be seen as implementing process improvement practices, much like Six Sigma. However, it should be noted that GARP® has a records lifecycle focus due to its affiliation with ARMA. The following paragraphs will describe GARP® in additional detail, as well as how an organization may integrate this framework into their eDiscovery (EDRM) processes to experience a higher level of process maturity and increased cost effectiveness.

My research on social media collection and preservation is getting more and more interesting. One of the bigger issues is user privacy. If I post information on FaceBook and use the proper security protocols to be specific about who I share that info with, should anyone else have a right to access it? The Stored Communications Act of 1986 would seemingly protect a user’s FaceBook content from being released to third parties – and it does, to an extent. The SCA prevents publishers from releasing an individual’s information to third-parties, even in response to a civil subpoena. But, it does not protect as much in the event of a criminal investigation and there are ways around the SCA for both criminal and some civil cases.

Migrated from eDJGroupInc.com. Author: Amber Scorah. Published: 2012-04-03 09:00:25  PART ONE OF AN INTERVIEW WITH JONATHAN WILANPartner at Hunton & Williams LLP Inside and outside counsel, in-house eDiscovery teams and records management departments understand the duties to preserve data subject to a legal hold, and the need to have a retention policy.  But with the exploding rate of data growth, data remediation is a [...]

Migrated from eDJGroupInc.com. Author: Chuck Rothman. Published: 2012-04-04 09:00:46  Although Processing is smack dab in the middle of the EDRM, little real consideration is paid to it. When going through the various EDRM steps, processing does play a role, but to most practitioners, processing is equivalent to a cost item on the e-discovery budget sheet, and little more. If you know the volume of [...]

A good friend shared an interesting story over the weekend about how the Michigan State Police routinely collect forensic snapshots of mobile phones during traffic stops. Apparently the American Civil Liberties Association (ACLU) is investigating the MSP’s use of the CelleBrite UFED kit during minor traffic stops without a warrant. At first, this seems outside the arena of civil electronic discovery. However, the story headline claims that the CelleBrite UFED only takes 2 minutes to image a mobile phone. The fact that they are being used by a state patrol officer during a traffic stop certainly backs up this time frame, but I could not find any performance information on the CelleBrite site. I see the new generation of mobile forensic technologies breaking down corporate ‘unduly burdensome’ arguments that have managed to exclude these devices from the discovery scope of many/most cases. After all, a plaintiff can now point to this article and ask, “Why can’t you use a similar device to preserve all custodian phones during your initial interviews?” Widespread use by non-geeks on roadside traffic stops certainly makes that a tough argument to fight.

I had the opportunity to attend eDJ’s Peer Group meetings last week, where the topic of discussion was information governance (IG). The Peer Group meetings are fascinating because real IG practitioners speak up about very real issues. I was struck by how daunting the challenge of truly governing information is. As electronic data grows exponentially, managing the risk that information poses is harder and harder. For every effort a company takes to safeguard information, employees create a workaround if that effort impinges on the velocity of information. In turn, those workarounds lead to a vicious circle of eDiscovery nightmares.

Migrated from eDJGroupInc.com. Author: Chuck Rothman. Published: 2012-04-11 09:00:36  E-Discovery processing involves much more than just multiplying the number of gigabyte by the per-gig rate. In the first part of this series, we looked at what processing does under the hood, and how to ensure that duplicate records are properly identified. This part continues the discussion.Emails and AttachmentsWhen the email is extracted from its [...]