The Discovery Update E-Letter Articles

12Nov2018

Mobile to the Mainstream

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By Craig Ball Once you’ve preserved the contents of a mobile device, how do you extract responsive content in forms that are searchable and amenable to review? Most information items on mobile devices aren’t “documents” that can be printed to a static format for review. Instead, much mobile content is fielded data that must retain a measure of structural integrity for intelligibility.
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15Oct2018

The GDPR: More a Collaboration Opportunity than a Data Hindrance?

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By Zach Warren, LegalTech News Editor-in-Chief The GDPR was front and center at the “International e-Discovery and Data Protection” session of Relativity Fest 2018, where panelists said it can be an opportunity to bake privacy into the discovery workflow. It’s a radical concept, but stay with me here. Perhaps, in spite of the extremely large potential fines and the headaches it has caused IT teams worldwide,
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06Sep2018

Why Now is the Perfect Time to Take Control of Your eDiscovery

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By ZyLAB eDiscovery is one of those tasks nearly everyone is happy to hand off to someone – anyone – else. “It’s too complicated,” they say. “Too expensive! And too time-consuming!” Granted, all that used to be true. But if you haven’t looked at eDiscovery lately, you may have missed how it’s evolved.
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04Sep2018

The Most Important eDiscovery Cases of 2018 (So Far)

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By Casey Sullivan 2018 has been an unusually quiet year for eDiscovery cases. Usually by this point, we would have at least a few blockbuster cases, with big sanctions and big controversy to make a big deal over. While we have had a few big fines, the jurisprudence in eDiscovery seems to have settled down greatly since the enactment of the 2015 amendments to the discovery rules in the Federal Rules of Civil Procedure.
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11Jun2018

6 Keys to Consider When Evaluating eDiscovery Review Platforms

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By Kelly Twigger Technology of review software is constantly evolving, and many platforms are moving to the cloud. Firms that have purchased behind-the-firewall solutions are re-evaluating their expenditures, and in-house departments are looking to leverage their own tools to reduce costs with outside counsel. Firms that have had Summation and Concordance in the past are reassessing their options.
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08Jan2018

A Quick Reference Guide to Understanding eDiscovery Pricing

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By Kelly Twigger One of the biggest challenges in purchasing ediscovery services is trying to make an apples-to-apples comparison between providers, platforms, and services, including their pricing. It’s a feat that’s next to impossible. Buying ediscovery services is a lot like buying a car — when you walk away from the deal,
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18Dec2016

Key Takeaways from the Sedona Conference Commentary on Defense of E-Discovery Process

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The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) has proposed a set of principles and practical guidance for the eDiscovery process in its recent publication, “Commentary on Defense of Process:  Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process” (available for download here).  The Commentary seeks to address what parties can do to avoid,
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16Nov2016

Five Discovery Trends to Watch in 2016

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The most recent attempt to reduce scope and cost of discovery is reflected in the amended Federal Rules of Civil Procedure that became effective December 1, 2015. While the new amendments meaningfully focus on reducing costs associated with high volumes of data, there are other emerging concerns which continue to push the boundaries of reasonableness,
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18Oct2016

Cross-Matter and Vendor Message ID

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At last week’s ILTACON in Washington, D.C., Beth Patterson, Chief Legal and Technology Services Officer for Allens in Sydney, asked a panel why e-discovery service providers couldn’t standardize hash values so as to support identification and deduplication across products and collections.  If they did, you could use work from one matter in another. 
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18Oct2016

IT and Legal Walk into a Bar: Why Strong Interdepartmental Relationships are a Must in E-Discovery

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The E in E-Discovery requires expertise in tech as well as law, and the most successful in-house legal teams bring those disciplines together. Legal professionals become more technology savvy. IT team members begin to understand the e-discovery process and how to help Legal preserve and collect the required data. But in order to reach the highest levels of efficiency,
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20Sep2016

What is Contextual Diversity and Why Is It Important in TAR?

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Contextual Diversity is an exploratory tool found only in the Insight Predict system that runs automatically as part of a technology-assisted review project. Many TAR systems concentrate exclusively on relevance feedback, that is, giving you the unreviewed documents predicted to be the most relevant. But Insight Predict’s Contextual Diversity system also adds in some exploratory documents to help make sure you’ve looked into all the corners of your document collection,
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23Aug2016

E-Discovery Travel Guide Prepares Legal Teams for Adventure

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The e-discovery process is definitely a trip. With each new matter comes new challenges, variables, data types, and key players—both inside and outside of your organization. And like a road trip, it can be a nightmare or a grand adventure. What it boils down to is the perfect mix of planning,
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26Jul2016

Some Things Don’t Need to be Discovered. Protect Sensitive Data in Discovery.

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Today’s corporate information systems are awash with highly sensitive data. Whether it’s personally identifiable information (“PII”), personal health information (“PHI”), financial and payment information, intellectual property and trade secrets, source code—the list goes on—sensitive information exists in virtually every collection of data. It’s found in expected locations, like organized, well-managed databases;
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28Jun2016

Proportionality and Labeling ESI Productions

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The new Amendments to the Federal Rules of Civil Procedure are bringing new voices to discuss eDiscovery. Magistrate Judge Nina Y. Wang issued a thoughtful opinion of the new Rules in Kissing Camels Surgery Ctr., LLC, v. Centura Health Corp. (D.Colo. Jan. 22, 2016, Civil Action No. 12-CV-03012-WJM-NYW) 2016 U.S. Dist.
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28Jun2016

Embracing New Computer Forensics Paradigms

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Computer forensics is a fast-changing industry. New mobile devices, increased use of the cloud to store data, and social media all present new challenges to collecting data. It’s not enough to limit a data collection to files and emails anymore. Smartphones, tablets, email, instant messaging platforms, traditional file shares, and more all need to be included in a collection.
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25May2016

When Big Data and Litigation Collide

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Let’s face it, today we’re living in a world of “big data” and bigger data.  Like it or not, the world is now data driven, fueled by an ever-evolving variety of data sources. For the most part, we’ve become inured to it — “big data” is just part of the social vocabulary now.
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19Apr2016

Why I Love Predictive Coding

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Making document review fun with Mr. EDR and Predictive Coding 3.0 Many lawyers and technologists like predictive coding and recommend it to their colleagues. They have good reasons to do so. It has worked for them. It has allowed them to do e-discovery reviews in an effective, cost efficient manner. That is true for me,
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22Mar2016

Turning on the Lights in a Dark (Data) Room

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At breakneck speed, businesses and individuals are amassing huge volumes of disparate and obsolete data—data that has long gone “dark” within an organization. Dark data is the neglected data accumulated by an organization during regular business activities—the aging information, untouched archives, ancient web log files, old records of email correspondence. This data is intermingled with highly valuable and sometimes sensitive business information,
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22Mar2016

Don’t Free Fall on the Duty to Preserve

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The duty to preserve is a tricky beast. Determining when a party “knew or should have known that litigation was imminent” is often a free fall into analyzing the facts of when a party had notice of a lawsuit. There are times when it is very obvious that a party should have ejected and pulled the ripcord on not destroying any evidence.
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23Feb2016

The Fourth Generation of eDiscovery Offerings is Upon Us

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If you read this blog regularly, you know that we’re big admirers of Rob Robinson’s Complex Discovery site, from his software and services “mashup” to his running 14-plus year list of mergers, acquisitions, and investments in the eDiscovery industry.  Now, Rob provides a generational breakdown of eDiscovery technology offerings, giving organizations out there useful information to differentiate offerings in the eDiscovery marketplace.
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19Jan2016

Databases in Discovery

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Five years ago, I wrote The Luddite Litigator’s Guide to Databases in E-Discovery to accompany a lecture on the subject at the 2010 Georgetown Advanced E-Discovery Institute.  When I went looking for source material for the article, I was struck by how little there was.  Databases hold most of what we seek in discovery;
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22Dec2015

Altitude Woes: Avoiding the Dangers of BYOC in EDiscovery

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In a recent article, my Kroll Ontrack colleague, Michele Lange, discussed the ominous presence of the Bring Your Own Cloud (BYOC) movement within corporations. As with all new technologies, the BYOC movement has its advantages and disadvantages. On one hand, by allowing employees to use personal cloud storage systems, there is an increase in efficiency,
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22Dec2015

Proportionality in Asymmetrical Discovery

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The Plaintiffs and Defendants in an SEC case highlight the importance of proportionality between asymmetrical parties. In such cases, one side has all of the electronically stored information for discovery requests; the other side does all the requesting. However, the smaller party can have an extremely high burden reviewing any produced ESI,
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17Nov2015

Preparing for the eDiscovery Wave of the Internet of Things

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Among the recent developments in the eDiscovery industry, one of the most anticipated trends is the Internet of Things (IoT). The IoT has been in the news for a few years now. But for the eDiscovery world, 2014 marked the IoT’s emergence as a hot topic. This is due in large part to the increasing number of interconnected devices,
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17Nov2015

Deduplication: Why Computers See Differences in Files that Look Alike to You

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An employee of an e-discovery service provider asked me to help him explain to his boss why deduplication works well for native files but frequently fails when applied to TIFF images.  The question intrigued me because it requires we dip our toes into the shallow end of cryptographic hashing and dispel a common misconception about electronic documents.
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20Oct2015

Wearable Tech Data as Evidence in the Courtroom

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When I first started writing about the importance of social media to lawyers in the mid-2000s, it was an uphill battle to convince lawyers that social media should matter to them. It wasn’t until social media began cropping up in cases a few years later, both as the medium for the commission of crimes and as evidence in courtrooms,
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20Oct2015

Sorting Out the Real Cost and Value of E-Discovery Technology

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There has been a bit of talk lately in the e-discovery echo chamber about fixed-price models for processing, hosting, review, and productions. The purported goal of this discussion was to create a stir and drum up business. Yet conspicuously absent from this entire discussion was talk of total cost, aka value. 
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22Sep2015

Addressing the Continuing Challenges of Mobile Devices

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Organizations should develop a plan to tackle the data security, information retention, and e-discovery problems arising from mobile devices. The challenges associated with mobile device use continue to be splashed across the headlines. This year alone has seen various reports on mobile mishaps involving Samsung, Starbucks, the former U.S. Secretary of State,
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22Sep2015

In Legal Search Exact Recall Can Never Be Known

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In legal search you can never know exactly what recall level you have attained. You can only know a probable range of recall. For instance, you can never know that you have attained 80 percent recall, but you can know that you have attained between 70 percent and 90 percent recall.
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18Aug2015

Is There a Right to Fail in E-Discovery?

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Disagreements about scope and process in e-discovery shouldn’t split between plaintiffs’ and defendants’ interests. After all, everyone is a requesting and producing party, whether north or south of the “v.”  Yet, the reality is that most defense counsel see themselves as producing parties, and most plaintiffs’ counsel identify with requesting parties.  
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21Jul2015

Document Preservation: Know When to Hold `Em and Know When to Fold `Em

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The cut-throat, high stakes environment of a nail-biting poker tournament is oddly similar to the world of document preservation in litigation, investigations, and regulatory events. Though the former tends to take place in a smoke-filled, lowly lit room and the latter on computers (with less smoke, but perhaps the same amount of nail-biting),
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21Jul2015

Why Fight Over Producing Metadata?

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A party fighting over not producing metadata is like bringing a protective order to produce a document without ink on the paper. Metadata is part of the native file. The “Data about Data” is captured during collection and processed for production. An active effort would have to be made to strip a native file of its metadata,
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09Jun2015

The Internet of Everything: What it Means for Lawyers

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What does the Internet of Everything mean for lawyers? Evidence – lots and lots of new sources of evidence. The continuing loss of privacy. A life that is so connected to the Internet that it will be hard to get through even a few minutes of our day without the Internet having an impact.
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05May2015

New Cases Provide Guidance on Social Media eDiscovery

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Social networks continue to be a particularly ripe source of relevant ESI in eDiscovery. With the continued proliferation of case law, key trends are emerging and providing guidance regarding the production and preservation of social media. One of those trends – the need to prepare and respond to narrowly tailored discovery requests – has been captured in several recent cases.
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07Apr2015

Focus on the Merits to Find What is Relevant, Not Search Terms Alone

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Responding to a discovery request marries the practice of law to search technology. Rule 26 conferences in federal court often have parties spending a significant amount of time exchanging “search terms” to determine the most effective discovery protocol for a case. I think focusing on “search terms” alone is the wrong focus.
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10Mar2015

Reduce E-Discovery Storage Costs Through Nearlining

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Nearline. If this term isn’t in your ediscovery vocabulary, it should be. Nearlining is a feature that allows litigation teams to quickly and easily set aside irrelevant documents and keep them separate from the active document roster in a discovery database. By moving noncritical data from active to nearline in a document review tool,
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04Feb2015

Location, Location, Location

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I’m peripatetic.  My stuff lives in Austin but I’m in a different city every few days. Lately looking for a new place for my stuff to await my return, I’m reminded of the first three rules of real estate investing: 1. Location, 2. Location, and 3. Location. Location has long been crucial in trial,
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19Jan2015

Don’t Argue “Human Error” For Not Searching ESI

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It is dangerous for lawyers to argue information was not searched for years because of “human error.” That is right up there with saying, “Your Honor, we goofed. Are we cool?” As we learned from Judge Kevin Fox, no, we are not cool. The case involved claims for wrongful termination and fighting over audio recordings and emails for over five years.
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19Jan2015

Predictive Coding, Seed Sets, and the Work Product Doctrine

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The use of predictive coding has been both contagious and controversial since its use began in eDiscovery. On the one hand, predictive coding has found welcome recipients in clients, counsel, and the courts, all of whom are seeking to expedite the ESI search and review process. Nevertheless, there have been disagreements regarding various aspects of predictive coding.
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01Nov2014

Dem Phones, Dem Phones, Dem iPhones

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By Craig Ball
I am not a dinosaur.  Except that I prefer e-mail to texting, and I forget that my students have never used a record player or lived without the Internet, and I’m not near the national average of 14 daily visits to Facebook.  When I need to know how to turn off a nagging dashboard light,
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01Sep2014

State Court Judges’ Perspective on E-Discovery

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By Sharon D. Nelson and John W. Simek
We recently had the pleasure of serving on a Fairfax Bar Association CLE faculty which included Circuit Court Chief Judge Dennis Smith and Circuit Court Judges John Tran and Jane Roush. Their panel offering their insights on e-discovery in state courts was warmly received.
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01Aug2014

Native Files and Protective Orders

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By Joshua Gilliland
What do parties do when they anticipate documents, testimony, or information containing or reflecting confidential, proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed or produced during the course of discovery, initial disclosures, and supplemental disclosures in a case? Agreeing to a protective order is a the solution the parties sought in Farstone Tech.,
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01Aug2014

The Importance of Cybersecurity in eDiscovery

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By Ralph Losey
Cybersecurity is job number one for all litigation attorneys who handle confidential computer data. That’s because electronically stored information (ESI) held by law firms is now subject to frequent attack by criminal hackers. They have figured out that attorneys store valuable data of their clients in law firm computers.
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01Jul2014

Unconscionable Charges in E-discovery

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Before I limited my law practice to work for courts and counsel, I was a trial lawyer working for contingent fees.  For 20-plus years, I never charged for an hour of my time.  I funded the cases, did the work and was paid only if I recovered damages for my clients. 
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01Jul2014

eDiscovery 2014: In with the New?

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By Shelley Podolny
“In with the new” is sometimes slow going in the legal realm, but what would a year-end be without taking at least a brief moment to look back before moving on? 2013 may not have been one with the most seismic shifts in e-discovery, but there were some important topics and themes that will no doubt carry on throughout 2014 and beyond: Technology-assisted review (TAR):  2013 saw law firms and companies testing out the efficacy of more and more electronic tools and processes for slogging through ever-growing volumes of ESI. 
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