The Discovery Update – April 2012


The Discovery Update – April 2012

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April 2012

From the President

As you know, e-discovery has been evolving rapidly and has become a substantial part of litigation in our country. Culling emails is at the forefront, but now, with technology and social media abounding, e-discovery has become a very complex part of litigation.

With the goal of providing information that can help you in your e-discovery process, we included articles on “What’s Hot in E-Discovery” and “Assisting E-Discovery Compliance Through Effective Communication.” Also, we are sharing a piece that talks about the impact that data protection has on the global economy.

We hope you find this issue useful, and we encourage you to send us information that has helped you in your practice and that you think will benefit our readers.

Best regards,
Sheila Atkinson-Baker

What’s Hot in E-Discovery?

By Sharon D. Nelson, Esq. and John W. Simek
Sensei Enterprises, Inc.

Machine-Assisted Review

Let’s start with a very hot if not very sexy topic. You may have heard of new technology called predictive coding or technology-assisted review. Recently, we’ve seen the phrase “machine-assisted” review a lot. They are all the same thing. A rose is a rose is a rose, but we have not yet settled on a name for this nascent technology.

The way most lawyers engage in traditional keyword searches is, as others have suggested, the equivalent of “Go Fish.” The requesting lawyer makes his best guess about which keywords might produce relevant evidence without having much knowledge of the other party’s “cards.” Even worse, the attorney for the responding party often doesn’t know what is in his own client’s cards. So no one is talking from a standpoint of incisive knowledge.

To make this explanation as non-technical as possible, machine-assisted review means using sophisticated algorithms to enable a computer to determine relevance based upon training by a human reviewer. Generally, a senior partner or team will review and code a “seed set” of documents. As the reviewer continues to code, the computer begins to predict the coding based upon the human’s prior decisions. When the computer’s predictions and the lawyers coding pretty much coincide, the reviewer has confidence that the computer can code the remaining documents.
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Assisting E-discovery Compliance Through Effective Communication

By R. Eric Hutz
Connolly Bove Lodge & Hutz, Wilmington, DE

While it may seem self-evident, effective and continuous communication between the relevant stakeholders is a key aspect to successfully managing e-discovery in response to litigation. This is particularly true given the tasks that must be completed, the often short deadlines for completion of these tasks and the potential consequences of failing to comply with the e-discovery obligations under the Federal Rules. Although this principal applies to both plaintiffs and defendants, it can often be more important to defendants who received little or no advance notice of the impending lawsuit.

In-house stakeholders include corporate counsel responsible for overseeing the litigation, the company’s IT and records departments and individual custodians of relevant electronically stored information (ESI), among others. This group’s role typically involves identifying relevant custodians and their electronic files, identifying other counsel for purposes of privilege screening, identifying shared drives and databases, locating back-up tapes or other archived storage, determining whether archived data is reasonably accessible and identifying any important issues to help focus the ESI collection and review. This group is particularly important to e-discovery in response to litigation because its members are the most likely to have the internal knowledge necessary to respond to ESI demands.
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What’s Hot in E-Discovery?

Assisting E-Discovery Compliance Through Effective Communication

New Attorney? Don’t Get Intimidated by Opposing Counsel


Safeguarding Against Deposition Omissions

Examining the Four Areas of Business Social Networking Risk


New Attorney? Don’t Get Intimidated by Opposing Counsel
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Your Personal Grammar Coach 
Finding Significant Citations for Legal Opinions
SPOTLIGHT: The Reporter“… During my twenty years of practice as a plaintiffs’ lawyer I took many, many depositions … far flung and all over the United States and Canada.”I used to say, and used to make it crystal clear to my clients, that the most important person in the deposition room was the court reporter. The court reporter who never said anything other than asking my client to raise their hand and recite the oath. The CSR who listened to lawyers bicker and hostile witnesses escape and evade. The officer of the court who ensured the rest of us stayed inside the lines of decorum. That one.”The one, who at the end of each deposition, folded up the legs of the tiny tripod and packed away the little box with the funny keyboard. The one whose job was to spit out an endless stream of nonsensical characters on an endless paper tape, then later deliver a spotless record of everything said during the proceedings. That one.

“My hat’s off to you ladies and men who made my life easy, who protected the record and covered my back in court. I owe you a lot.”

Anthony F. Mournian
San Diego, California