Essays

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.

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.

Migrated from eDJGroupInc.com. Author: Greg Harris. Published: 2012-05-16 11:19:35  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 [...]

Migrated from eDJGroupInc.com. Author: Chuck Rothman. Published: 2012-05-17 10:00:44  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 [...]

An interesting question came up during an internal meeting of eDJ’s analysts last week: Are the winners and losers in the eDiscovery software market essentially already determined? (Or at the very least, is the winning pool of candidates firmly established?) For so long, a large number eDiscovery software vendors competed in the market and it felt like there would be rounds of consolidation. Some commoditization has occurred, but not as much as we thought would have by this point.

Migrated from eDJGroupInc.com. Author: . Published: 2012-05-23 09:00:10  Editors Note:  This article was originally published on May 21, 2012 on the eDiscoveryInsight site.  A copy of the original article can be found here. Mikki Tomlinson and I were lucky to go to the AccessData Users Conference (ADUC) two weeks ago in Las Vegas.  Now it doesn’t take a great deal to get me to [...]

Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2012-05-23 14:00:20  Chuck Rothman wrote a great post on Separating the Wheat from the eDiscovery Software Chaff last week.  I would like to expand on that and take it two steps further.  If you are evaluating software for purposes of a long-term partnership with a preferred vendor or are making the commitment to bring something behind your [...]

Migrated from eDJGroupInc.com. Author: Kevin L. Nichols. Published: 2012-05-24 09:00:21  Recently, a CFO from Francesca's Holdings Corp, a Houston based company, was fired for wrongfully disclosing sensitive non-public information via social media.  In general, it is difficult and nearly impossible to prohibit employees to have LinkedIn, Facebook, and Twitter accounts for personal use, let alone monitor them effectively.  However, this incident involved an executive/board [...]

In our piece earlier this week on the pool of winners and losers in the eDiscovery software market, we made some mistakes and omissions. The mistakes we can eliminate in the future with better editorial processes (we are a growing, learning organization like everyone else). The omissions will happen from time to time, especially in a market with so many small yet innovative vendors. It is a constant challenge to keep up with the complex offering of the large software providers in addition to the many point solutions that exits. Thankfully, we have readers that keep us on our toes and remind us when we make a mistake or forget to include all the relevant players.

Migrated from eDJGroupInc.com. Author: Steve Markey. Published: 2012-05-29 09:00:01  This past week I was at the Business of the Cloud conference in Dallas, TX and sat next to Adam Swidler, a senior manager at Google.  He went on to educate me about Google Vault and their retention functionality.      And, as I sat there playing around on my iPad with this new service (an improvement from [...]