Post Process

Everything to do with E-discovery & ESI

Archive for September, 2008

Information Week Writer Reviews E-Discovery Applications

Posted by rjbiii on September 19, 2008

Andrew Conry-Murray writes two reviews on e-discovery software. The first article, which discusses offerings from Clearwell, Kazeon, and Stored IQ is here. The second article, examining Guidance’s EnCase and Axcelerate eDiscovery from Recommind, is here.

Happy reading!

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Building Multilingual Ontologies

Posted by rjbiii on September 19, 2008

A press release from the School of Computing at la Universidad Politécnica de Madrid announces that their researchers have developed a method for building ontologies irrespective of language:

The innovative thing about what these researchers are proposing is the construction of multilingual ontologies using what are known as universal words as the concept name. The concept of universal word stems from the United Nations University’s UNL Project (Universal Networking Language). This project was set up to break down the linguistic barriers on the Internet. The researchers claim that the characteristics of UNL also very close match the features of an ontology.

Continuing:

In an article presented last July at The 2008 International Conference on Semantic Web and Web Services (SWWS’08), these researchers describe their approach and explain a case study demonstrating the validity of their method. The case study used the contents of the current catalogue of Spanish monuments as part of the Patrilex project, funded by the Spanish National Research Plan in conjunction with the Underdirectorate General of Cultural Heritage.

In this case study, the sentences from the catalogue of Spanish monuments were coded in UNL language. This codification is a semantic representation of the catalogue contents. The researchers then searched for predefined linguistic patterns in the semantic representation. After identifying the contents matching the patterns, they instantiated the contents as ontological structures.

The big advantage of using the UNL system is that the universal words are independent of the language and are not ambiguous. The non-ambiguity makes the translation of the ontology built this way to any language extremely precise.

Will the difficulties we currently experience with the production of multi-lingual data sets be consigned to the history bin? Not quickly enough…stay tuned.

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New E-Discovery Strategy: Manage your data before the lawsuit

Posted by rjbiii on September 19, 2008

Businesses have finally become impressed with the need to manage the data residing on their enterprises, and it appears that the straw breaking the camel’s back is…ta da…e-discovery:

But thanks to e-discovery risk and burgeoning data volumes — 20% to 50% compound annual growth rate for some companies — the tide is starting to turn, according to [John] Merryman. The average cost companies incur for electronic data discovery ranges from $1 million to $3 million per terabyte of data, according to Glasshouse. While you need to pay attention to retaining data, at the same time, “all indications are that you need to be keeping less,” Merryman says.

The cost of retrieving content from disorganized data universes existing on IT enterprises hits hard when a suit requires you to sort out the mess. No excuses are allowed, and procrastination is no longer possible. So what’s the answer?

One way to address this problem is to set retention policies that reduce exposure to legal problems. But don’t try to boil the ocean, Merryman advises. Instead, create policies from the application or business level down, rather than looking across the whole data landscape and letting policy bubble up. Also, create black-and-white rules that are easy to deal with.

E-discovery should not be quite the beast that it has turned out to be. Part of the reason for the current predicament is that data management hasn’t been a priority, even in the face of compliance requirements. Lawsuits, and the attendant scrutiny accompanying e-discovery projects, signal that judgment day approaches. Taming the enterprise goes a long way to taming the e-discovery burden.

Posted in Articles, Data Management, Technology, Trends | 1 Comment »

ABA ‘urges’ local governments to refrain from regulating Forensics Activities by means of PI Licenses

Posted by rjbiii on September 16, 2008

The full text of the Resolution (Adopted Aug. 11-12, 2008):

RESOLVED, That the American Bar Association urges State, local and territorial legislatures, State regulatory agencies, and other relevant government agencies or entities, to refrain from requiring private investigator licenses for persons engaged in:

• computer or digital forensic services or in the acquisition, review, or analysis of digital or computer-based information, whether for purposes of obtaining or furnishing information for evidentiary or other purposes, or for providing expert testimony before a court; or

• network or system vulnerability testing, including network scans and risk assessment and analysis of computers connected to a network.

FURTHER RESOLVED, That the American Bar Association supports efforts to establish professional certification or competency requirements for such activities based upon the current state of technology and science.

Link is here.

Posted in State Licensing Laws | Tagged: | 1 Comment »

Case Blurb: Thai Heng Chang; Court discusses documents produced across matters

Posted by rjbiii on September 16, 2008

The Court agrees generally that Defendant should not have to produce documents he has already produced, whether in another cause or not, but he may not simply refer Plaintiff to the other lawsuit with the general objection that he’s already produced responsive documents. Defendant must respond to each discovery request served in this case and identify each responsive document by Bates number or other identifying information that specifies the precise document. Of course, any responsive documents between March 22, 2007, and July 1, 2007, would not be previously produced in response to the subpoena, and therefore, shall now be produced within ten days of this date.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *2 (N.D.Fla. Aug. 29, 2008 ) (emphases in the original).

Posted in 11th Circuit, Case Blurbs, Discovery Requests, Duty to Produce | Leave a Comment »

Case Blurb: Thai Heng Chang; Court orders immediate production of e-mail from previously undisclosed account

Posted by rjbiii on September 16, 2008

Post Process: The court granted Plaintiff’s motion to compel, and motion to impose sanctions for inadequate discovery. The court delayed determination of appropriate sanctions until a later date. Below is an excerpt of the opinion, discusses Defendant’s undisclosed yahoo e-mail account.

At issue are [inter alia]: emails from the account edsmith1818@yahoo.com…
Plaintiff contends that it only recently learned of another email account used by the Defendant that should have been identified in response to Interrogatory No. 2, which Plaintiff served upon Defendant on November 6, 2007. Plaintiff contends that Defendant should supplement his document production to include these emails, which it alleges contain highly relevant information crucial to the issues raised in this case.

Specifically, Plaintiff contends that Defendant used this specific email account to engage in the activities upon which this entire lawsuit is based. Defendant represents to Plaintiff and the Court that he cannot produce the emails because they have been destroyed by Yahoo! He offers a copy of a generic response from Yahoo! regarding deactivating accounts, but Plaintiff has attached to its motion a copy of a letter from Defendant’s counsel to Yahoo! regarding a subpoena served in the Georgia case for the hankchang138@yahoo.com account. Nothing in that letter indicates a problem with Yahoo! complying with a subpoena for emails in that account despite Defendant’s assertion that they had been deleted. Perhaps Yahoo! has a process for obtaining emails from deactivated accounts as well. Regardless, the Court does not at this time accept Defendant’s explanation that production of these documents is “impossible,” particularly given the important evidentiary value of these emails and the feeble offering by Defendant in support of his contention. The Court further finds that Defendant’s representation that he was being “completely truthful” when he did not identify this account because he knew it would be impossible to ultimately produce these emails, to be sanctionable. It will figure largely into the sanctions ultimately awarded in this matter if it is learned that Defendant’s failure to identify this account earlier is the cause of the alleged impossibility.

As an initial matter, Defendant shall immediately make all possible efforts to obtain the emails in account edmith1818@yahoo.com and shall then produce all documents in this account without further objection or delay…The Court will not accept Defendant’s position that he cannot produce these emails until assurance is given from an executive at Yahoo! responsible for such tasks that this request is indeed impossible.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *1 (N.D.Fla. Aug. 29, 2008 ).

Posted in 11th Circuit, Case Blurbs, Data Sources, Duty to Disclose, Duty to Produce, email, Magistrate Judge Allan Kornblum, N.D. Fla., Sanctions | Leave a Comment »

Complaints over E-discovery Costs Intensify

Posted by rjbiii on September 15, 2008

I have recently read two separate articles discussing the need to “fix” the current system, with respect to e-discovery. The Economist, has posted an article that concludes that the U.S. is “way behind” other countries’ civil systems because of Judges’ inability to control the scope of discovery. The situation, according to the article, has led to the need for experts who “merrily” charge large sums of money for their assistance:

This has led to a new boom industry of specialised e-discovery service providers which merrily charge $125-600 an hour. George Socha, a consultant, estimates that their annual revenues have grown from $40m in 1999 to about $2 billion in 2006 and may hit $4 billion next year.

Interestingly, the article begins with an example of a plaintiff involved in a lawsuit with an HMO, who has been “daunted” by the scope of e-discovery. Again, it is not the HMO complaining…it is the plaintiff, a teen-aged girl complaining about decisions made by an HMO. Evidently, the defendant requested production of “practically everything the teenagers had said on their Facebook and MySpace profiles, in instant-messaging threads, text messages, e-mails, blog posts and whatever else the girls might have done online”

The article mentions that the attorney objected on grounds of privacy, and lost. One would also hope that relevance and undue burden might also have been broached. Because the plaintiff’s psychological state is an issue, I suppose relevance can construed rather broadly to almost any communication she generates, but nevertheless, one would think that the Judge could use discretion to curtail any “fishing expedition.” One of the articles biggest complaints is that Judges don’t use their discretion to manage the scope of discovery. One wonders, though, how educated counsel is on the principles and laws of ESI. It has been my observation that plaintiffs firm are behind the learning curve. Another interesting point is the placement of this case at the front of the story. Most of the complaints I’ve heard come from the corporate side, claiming that plaintiff’s are using the costs of EDD against them to encourage settlements. While I love The Economist, it is certainly a business-friendly publication. It does go on to extensively discuss the issues that corporations are having in the new environment.

A related article comes from the ABA, wherein trial lawyers call e-discovery a “morass” (registration may be required):

The civil justice system in the United States is so bogged down in a “morass” of e-discovery that it is often too expensive for litigants to take their cases to trial, according to a survey of trial lawyers.

Now the next step is to fix this increasingly dysfunctional system, according to a press release (PDF) about an interim report (reg. req.) on the survey, which is a joint project of the American College of Trial Lawyers and the University of Denver’s Institute for the Advancement of the American Legal System (IAALS).

Among the key findings of the survey: Judges don’t use sufficient discretion to “control excessive discovery.” The bottom line from the survey:

“Discovery is out of control. Attorneys know it; judges know it; and clients know it. E-discovery just makes it more obvious,” [former Colorado Supreme Court Justice Rebecca Love Kourlis] writes. “We have to figure out a way to fix it.

I think that part of the problem here is that attorneys and judges, who work in an industry designed to be ponderous, now find themselves in a new world. And most of them don’t like it. Again, in theory, digital evidence is easier to deal with. Why? Well, compare the using a search interface with the manual process of hunting through boxes, squinting at index sheets, and and working your way through mountains of paper in hot warehouses. Which sounds like a better system?

So while we can discuss the need to prevent fishing expeditions, or parties’ use of discovery as leverage to prop up weak cases, we need to also understand that we are in the early part of this new age; a time of transition. This will get easier.

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House passes Proposed FRE 502

Posted by rjbiii on September 15, 2008

Last Monday, the House passed the proposed rule, which is designed to protect parties against the inadvertent disclosure of privileged material, and the waiver of the privilege because of the disclosure.

The rule takes effect on any new matters, and to the extent that is “just and practicable,” on any matters currently pending. The text of the rule can be found here (pdf), and the congressional record, containing legislative intent, is here (also pdf).

Posted in FRE 502, Legislation, Waiver of Privilege | Leave a Comment »

Case Blurb: Nursing Home Pension Fund; Failure to produce ‘duplicate’ emails from different custodian grounds for sanctions

Posted by rjbiii on September 15, 2008

As to [Defendant] Ellison’s email files, the Court finds that sanctions are appropriate. It is undisputed that defendants produced only 15 emails sent or received by Ellison from Ellison’s own email files, and defendants do not contend that all of Ellison’s emails were preserved in his files. Instead, defendants note that over 1,650 of Ellison’s emails were produced to plaintiffs from the files of other Oracle employees. Defendants, relying on Wachtel v. Health Net, Inc., 2007 WL 1101436 (D.N.J. Apr. 10, 2007), argue that plaintiffs are not entitled to receive multiple copies of Ellison’s emails. The Court disagrees. It could have been helpful to plaintiffs to demonstrate that certain emails were discovered in Ellison’s files; otherwise, for instance, Ellison could argue that he never actually read or received an email that was sent to him, and thus had no knowledge of its contents. Moreover, having established with certainty that numerous emails were not produced from Ellison’s email files–because the emails were produced from other files or accounts–it is impossible to know whether additional unproduced emails were also deleted or not turned over. This uncertainty about the existence of other emails is precisely the reason all of Ellison’s emails should have been preserved and produced.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *6 (N.D.Cal. Sept. 2, 2008 )

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Case Blurb: Nursing Home Pension Fund; Standards for the imposition of ‘lesser sanctions’

Posted by rjbiii on September 15, 2008

The parties debate whether plaintiffs must demonstrate prejudice before the Court can impose lesser sanctions. The Ninth Circuit has recognized that it has sent conflicting signals regarding whether prejudice must be shown in order for the sanction of dismissal to be appropriate. A court in this district recently clarified that the Ninth Circuit has required a showing of prejudice only when courts are acting under Federal Rule of Civil Procedure 37, which applies when a party disobeys a court order regarding discovery. When acting under its inherent authority, however, a district court need not consider prejudice to the party moving for sanctions…and prejudice has not been required when a party moves for lesser sanctions. Here, the Court is considering lesser sanctions in the form of an adverse inference, and even assuming prejudice is required, the Court notes that it would be quite difficult for plaintiffs to demonstrate how they were harmed by evidence to which they do not have access.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *5 (N.D.Cal. Sept. 2, 2008) (internal citations removed).

Posted in 9th Circuit, Adverse Inference, Case Blurbs, Duty to Preserve, Judge Susan Illston, N.D. Cal., Sanctions, Spoliation | Leave a Comment »