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Archive for the ‘EDD Industry’ Category

E-Discovery Still Stirring the Pot

Posted by rjbiii on February 19, 2010

While we continue to hear the complaints from corporate clients on the cost of e-discovery, the issue is beginning to affect attorneys and companies in other ways as well. As an example:

The Recorder posts an article discussing the suspension of a prosecutor once considered a rising star. From the article:

A California State Bar Court appellate panel has upheld a four-year suspension for former Santa Clara County prosecutor Benjamin Field, despite an amicus curiae brief from the California District Attorneys Association warning of a chilling effect on prosecutions.

The Bar review panel found it “inexcusable” and “disturbing” that Field, once a star in South Bay legal circles and considered a viable candidate for a judgeship, concealed evidence and ignored judges’ orders over a 10-year period. The ruling, released late Friday, also affirmed five years of probation.

In another story, ABC News tells the tale of the former Toyota attorney who is ready to divulge information about the car maker’s “illegal discovery practices” to Congress. Quoting the article:

“The information and documents I have regarding Toyota’s deceptive and illegal discovery practices will one day become publicly available,” [attorney Dimitrios] Biller said. “Our judicial system, government and the American people need to know how Toyota operates with total disregard of our laws and legal system.”

Finally, Judge Shira Scheindlin, of Zubulake fame, issued a new ruling that imposed sanctions on multiple plaintiffs for their failures to preserve evidence, despite the fact that [t]his case [did] not present any egregious examples of litigants purposefully destroying evidence. They just didn’t preserve the stuff they should have.

With any litigation, decisions about e-discovery processes involve risk assessments. I’d say some parties are not adequately evaluating that risk.

Posted in Articles, EDD Industry, Judge Shira A. Scheindlin, Litigation Hold, Sanctions | 2 Comments »

PI Licensing Laws in Texas and Michigan Continue to get Press

Posted by rjbiii on July 31, 2008

This time, the CEO (and former litigator) of Catalyst, John Tredennick, writing in Law Technology Today (reg’n may be required) passes comment:

Two states have recently enacted statutes that make it a crime for unlicensed individuals to engage in computer forensics. Texas passed a law that would give regulators the power to impose up to a year in jail and a $14,000 fine on people doing “computer investigations.” Michigan went a bit further. On May 28 th of this year, Governor Jennifer Granholm signed into law a bill that makes unlicensed computer forensics work in Michigan a felony punishable by up to a four-year prison term, damages of up to $25,000 and a criminal fine of up to $5,000.

Read the article for details, but Tredennick summarizes the Texas law thusly:

As I read these [Regulatory Agency] opinions, there is some comfort for people doing routine electronic discovery collection but not if there is a forensic or testimonial aspect to the collection. There is a strong suggestion that experts who are called to testify in Texas courts regarding examinations of electronic files better be licensed in Texas. If you don’t have a license, you might be pulled off the stand and escorted to the hoosegow for an extended visit.

Seriously…not the hoosegow!

With respect to Michigan:

How far does this reach?

Good question. If I were a forensics expert and offering testimonial services, I would be pretty nervous about this law. The Act seems to focus on:

Computer forensics to be used as evidence before a court, board, officer, or investigating committee.

Most electronic discovery is focused on collection rather than forensics and an argument could be made that your eDiscovery efforts are not about forensics but rather the collection of relevant evidence for review. But do you want to make this argument to some Michigan criminal court? I wouldn’t.

Post Process has previously blogged on this issue (here, here, here, here, here, and here).

Posted in Articles, Data Collection, EDD Industry, Forensics, Laws, Michigan, Privacy, Texas, Vendor Liability | Tagged: , | 2 Comments »

Blogging LegalTech West 2008: Keynote Speech by Chevron’s Charles James

Posted by rjbiii on June 27, 2008

First, if you aren’t able to attend LegalTech, you can watch a live feed, including an occasional interview, at a live feed provided by Orange Legal Technologies.

The Keynote speech was made by Charles James, VP and General Counsel of Chevron Corp. Mr. James received his bachelor’s degree from Weslayan, and earned his law degree from the National Law Center at George Washington University.

Mr. James discussed his role in helping to modernize the legal department, and to help it navigate the choppy waters caused by the emergence of ESI and electronic discovery as a substantial factor in litigation. He pointed to three major areas that had been affected by the modernization: legal billing, the incorporation of an e-discovery processing platform into in-house IT processes, and the implementation of a document management system. While Chevron is justifiably proud of its progress, Mr. James said that the process had been very difficult; more difficult than he had imagined that it would be when he started the overhaul.

He listed the three major “failings” for which Chevron had been responsible during the process:

  1. The desire to elicit input from all constituencies caused confusion and created something of a politically charged atmosphere where turf wars broke out, and decisions devolved into contests that parties “won” or “lost.” In retrospect, more guidance from technical experts was needed.
  2. He and other leaders were “overly seduced” by the lure of the idea of automation. By striving for maximum automation and minimal human intervention, Chevron’s managers produced convoluted workflows that needed a “dose of reality.”
  3. Finally, Chevron underestimated the scope of change management necessary to implement the new systems. Mr. James noted that the average attorney at Chevron at the time he assumed his position was 52, and that to have expected these lawyers to have an hour of training, and adapt to the new environment was unrealistic.

He listed his top three frustrations with vendors in the eDiscovery space:

  1. The common practice of “grossly overselling” practicality, functionality, and inter-operability of our solutions. He said that the three phrases had come to loathe are: “seamless integration;” “complete enterprise solution;” and “that functionality isn’t included now, but it’s coming in the next upgrade, which will be in beta…soon.”
  2. The lack of inter-operability between different programs, residing in different areas of the EDD workflow. Quoth Mr. James, “as Rodney King said, can’t we all just get along?”
  3. Finally, he wished that vendors would quote realistic conversion and implementation costs.

His final remark was a challenge to vendors: he said that after the country’s legal system “is fixed,” effectively ending the e-discovery gold rush, he hoped that vendors would put as much zeal into crafting KM solutions as they currently do with EDD.

The three main tracks available for attendees today were:

  • Evolving E-Discovery Issues and Methods;
  • Corporate Perspectives on EDD; and
  • Advanced IT

There were also tracks on Practice Management and Emerging Technology. I attended presentations on the Corporate Perspectives track for the first two blocks of time, and then had to leave for a couple of events with clients. I’ll blog more about those presentations (“Building a Discovery Task Force,” and “Navigating the Legal Hold Process and Technology”) later.

Posted in EDD Industry, EDD Vendors, Industry Events | Leave a Comment »

Does Outsourcing Lit Support to other Countries endanger Constitutional Protections?

Posted by rjbiii on June 19, 2008

K&L Gates has posted an article describing one law firm’s effort to obtain guidance on the issue whether transmitting data to foreign service providers waives fourth amendment protections with respect to that data.

The issues posed arising a scenario in which a service provider (in this case, Indian based Acumen Legal Services (India) Pvt., Ltd.) seeking to provide services to a law firm (Newman McIntosh & Hennessey, LLP of Bethesda, Maryland, “NMH”) is probably already providing services to attorneys who either compete with NMH or who represents interests that are adversarial to NMH’s clients. The questions posed in the complaint were whether:

1) its own electronic transmission of client data will affect a waiver of Fourth
Amendment protections to that data,
2) John Doe Esq. or Jane Doe, Esq.’s electronic transmission of non-client
data (such as data produced to John Doe, Esq. and Jane Doe, Esq. during civil discovery)
will waive Fourth Amendment protections to such data,
3) NMH, John Doe, Esq., and Jane Doe, Esq. are required to obtain prior
consent of the owner of such data prior to electronically transmitting it to a foreign
national residing overseas,
4) LPOs, such as Acumen, have an obligation to disclose the likelihood of
Fourth Amendment waiver with respect to data that is electronically transmitted to
foreign nationals residing overseas, and
5) President Bush has an obligation to establish intelligence gathering
protocols for the purpose of safeguarding Fourth Amendment rights with respect to
attorney communications to and from foreign nationals residing overseas.

K&L’s post has a link to the complaint, for those interested. Although this particular case applies to criminal cases, decisions here will affect all types of cases in a myriad of ways. One concerned Outsourcing company has posted its opinion on the matter.

Posted in 4th Circuit, Articles, D.D.C., EDD Industry, EDD Processing, EDD Vendors, International Issues, Judge Colleen Kollar-Kotelly | Tagged: , , | Leave a Comment »

EDRM Releases its new Standard for Production

Posted by rjbiii on October 24, 2007

The Standards Group for EDRM released a new, xml-based standard designed to ease migration from one litigation platform to another:

“In the past, there hasn’t been a standard way to hand off [information] from one step of e-discovery to the other,” said Leafstrand. “With no validation tools to make sure you have done it right, it’s been a very hit-and-miss, labor-intensive operation.”

Very true. Perhaps the largest part of “manual” labor that goes into the average project centers on “massaging” the data into the a format acceptable to the recipient’s particular system. Although many of these formats have become de facto standards, there are still often nuances and requests that fall outside the norm. This makes a good data integrator nearly invaluable. If some of the more tedious tasks can be eliminated, I’m all for it. I doubt, however, that the standard will be a panacea for the industry. Keep your experienced data integrators happy; you still need them.

Posted in Articles, EDD Industry, EDD Processing, Electronic Discovery Reference Model, Tools, Trends | Leave a Comment »

E-Discovery spurs business for law firms and vendors

Posted by rjbiii on October 22, 2007

According to PC World, the recently enacted amendments to the FRCP dealing with ESI has confounded corporate legal departments to the point that they are looking outside for help? To whom are they turning? Outside counsel, and EDD vendors, of course:

The fourth annual “Litigation Trends Survey Findings” conducted by Fulbright & Jaworski L.L.P, a global law firm based in Austin, Texas, found that corporate lawyers — over two-thirds based in the United States and the rest mainly in Britain — cited a big jump in use of outside vendors and outside law firms specializing in the e-discovery field. The industry sectors primarily represented are financial services, technology/communications, manufacturing, healthcare, energy and retail.

I’m not sure about the need to turn to outside counsel, frankly, unless you target a specific attorney based on particularized knowledge of the field. Otherwise, at least for the early stages of a dispute (and, for those companies with sufficient resources), in-house counsel should develop sufficient expertise to lead the e-discovery team initiate projects. Why? Well, the GC only has one “client,” and can afford to become intimately acquainted with its IT enterprise. An outside law firm will never have that opportunity (and even if it wanted to, imagine the billable hours…). Furthermore, outside counsel not only needs to be concerned with the Information Systems of its client, but must also “play offense” and investigate the systems of the adversary. Let the in-house department be the defensive coordinator, and they can take the initiative in the early stages, while overseeing a “smooth handoff” once the preservation (and possibly collection) phases have been completed.

Posted in Articles, EDD Industry, eDiscovery Counsel | Leave a Comment »

The Future of the Electronic Discovery/Lit Support Industry

Posted by rjbiii on October 11, 2007

Monica Bay writes a second installment in her series (entitled, somewhat confusingly, Defuse Fear and Disarm EDD Vendors–we posted about the first article here), in which she discusses trends in the industry:

First, to set context, let’s look at the Darwin issues. At the 2007 LegalTech New York show, I predicted three evolutionary trends:

1. The Big Three (Thomson Corp., LexisNexis, and Wolters Kluwer) would continue to gobble up any strong EDD product that doesn’t stand still.

2. There would be lots of roadkill, reminiscent of the dot.com collapses, as wobbly companies are crushed by poor business models, inadequate technology and/or competition.

3. Nimble, agnostic niche companies — that play well with others and have sharp agendas — would thrive (at least until #1 applies).

The article notes the continued buying sprees by “the big three,” including Thomson’s acquisition of the high-end technology consulting firm Baker-Robbins. Other trends discussed include the “commoditization” of standard EDD processing, the advantages for vendors in hiring folks that know what they’re doing (shocking, that), and the uncertainty that [should] accompany those law firms or corporations trying to take the whole discovery process in-house. Craig Ball, an attorney who has specialized in the field, contends that much of the collection (or, to use industry terminology, “data acquisition”) will devolve back into the sphere of the law firm:

“Honestly, people pay me a lot of money to do things they could do in-house if they invested in the right training and tools,” says Ball. “I find it odd that lawyers who wouldn’t hesitate to go to a client’s facility and collect documents are terrified of the liability that might flow from doing the same thing for e-documents. So what if you might have to testify? Do it correctly and do it routinely, and it’s as much a ministerial task (read: one that doesn’t disqualify you if you have to testify about it) as making photocopies or moving bankers boxes.”

Ball concedes that he is “decidedly in the minority camp on this right now, but mark my words: There’s a lot of this stuff that will routinely creep into the realm of DIY as tools improve.”

I know a lot of forensics experts who wouldn’t want to hear that…

Posted in Articles, EDD Industry | Leave a Comment »

Fear and Panic behind EDD Industry Growth?

Posted by rjbiii on October 2, 2007

Law.com has posted an article discussing the growth of the electronic discovery industry, and examining the forces behind it. The article begins by listing “four main drivers” contributing to the industry’s prosperity:

  • The volume of electronic data created by businesses and law firms.
  • Ostrich Day: On December 1, 2006, EDD amendments to the Federal Rules of Civil Procedure went into effect. Practitioners can no longer keep their heads in the sand, and judges are getting savvy, fast.
  • Huge sanctions for EDD mischief, in landmark cases, including:
    • Zubulake v. UBS Warburg LLC, 2003 U.S. Dist. Lexis 18771 (S.D.N.Y.Oct. 22, 2003).
    • Coleman (Parent) Holdings Inc. v. Morgan Stanley & Co. Inc., 2005 W.L. 679071 (Fla. Cir. Ct. March 1, 2005).
    • Qualcomm Inc. v. Broadcom Corp., Case No. 05CV1958-B(BLM), U.S. District Court, Southern District of California.
  • Compliance and regulations: The post-Enron proliferation of government regulations (Sarbanes-Oxley Act et al.) has changed the way corporations process electronic data.

Ostrich day? New expression for me, and I don’t think it’s a driver. It’s a reaction to the reality of technological progress and changes to society. You’ll notice that two of the cases used as examples for sanctions occurred before the new rules were enacted; courts were quite prepared to take action on their own (although I agree the guidance the amendments provide were necessary). Some vendors may use it as a driver [“The new rules are here! Can you cope?”], but the response by companies and attorneys should be driven by the same forces that caused the amendments to be necessary, rather than reacting to the federal reaction…

Driver number 1 is the real deal, here. Information systems are more integrated than ever in our daily lives, and data is found everywhere. Storage costs have decreased, and businesses have always sought the ability to build and maintain a sort of collective knowledgebase. Now they have better tools than ever to do so.

Sanctions are then considered. An interesting quote appears:

But panic — “fear of sanctions and claims of malpractice”– may be the ultimate fuel for EDD growth, suggests DLA Piper partner Browning Marean.*

Gregory Mazares, president and CEO of Encore Legal Solutions, agrees. In the wake of the new FRCP amendments, “the greatest catalysts for industry growth have been fear, lack of knowledge and inefficiency,” he declares. “There is great financial risk for those corporations (and law firms) that don’t fully comply with the new federal rules. The fear of severe sanctions and substantial financial losses in litigation are driving a change of behavior in discovery and case preparation,” says Mazares.

I disagree. The effect of sanctions to get one’s attention can’t be minimized, but if counsel and their clients are responding to that, again, they are reacting to judges’ response to attorneys who are not dealing with their obligations to the client and the court. It is a reaction to someone else’s reaction, rather than to the primary issue, which is the production of relevant data is not optional, and advances in storage media makes it a more technically challenging issue. The distributive nature of data (how easy it is copied, how widely it is often dispersed), and the use of forensics technologies, make “hiding” documents a more difficult chore, and the unwary may be caught.

There is also a bit of sneering over the concept of “litigation readiness,” and the article notes that “production-based vendors” are trying to recast themselves as “knowledge-based consultants.”

“Litigation readiness seems to be the buzzword du jour. Lots of smoke and sizzle, but little substance so far,” observes Gelbmann.

I’m not sure what form the “substance” should take. How do measure the absence of sanctions and inefficiencies in a case? Litigation readiness, properly considered, is simply the implementation of pre-dispute measures, generic to any particular litigation, that make it easier for corporate counsel to comply with their obligations to preserve and produce data. It is mostly good records management. A company with a good plan is able to recognize the trigger for a litigation hold (“reasonable anticipation of litigation”); is able to quickly identify the appropriate custodians (“key players”); preserve the relevant data held by those custodians; and collect the data in a defensible manner (or have it collected for them). After that, there is culling, processing, review and production. Having a plan in place may help to avoid errors that otherwise would be made, and may reduce inefficiencies and costs in the post-dispute processes:

“It’s simply good business,” says Ashley Watson, GC and vice president of Attenex Corp. “At its core, litigation readiness is really about being proactive and having a process in place for litigation. It’s just common sense that once a company realizes it has several hundred legal matters a year — yet they handle each one differently and the cost can vary widely — that they’ll try to standardize a process.”

“Reactive litigation response can be a big waste of corporate resources, let alone a source of potential sanctions, fines and lost cases,” concurs Mary Mack, technology counsel for Fios Inc.

I do take note that vendors who began as reprographics shops are now calling themselves “consultants.” Suddenly everyone’s an expert. Just be sure you check their credentials.

Finally the article considers an issue that is something of a red herring:

Another question that can be difficult to answer is “Who owns EDD?” The corporation? The firm? The vendor?

Ultimately, it’s the clients case, and the client will most immediately be affected by a poorly managed project. However, both in-house counsel and outside counsel have obligations in the way they conduct themselves during discovery. But that isn’t anything new, is it? Ethical obligations have always existed. The vendor is a new player, because of a couple of reasons: he may (or may not) bring expertise to the process; and whatever he or she does to collect, process or produce the data may be scrutinized by the court. As we’ve previously discussed, this means that whoever hires the vendor must be able to defend the choice, to some degree. A good decisionmaking process may help to insulate the other parties from negligence on the part of the vendor.

What it all comes down to, as we’ve posted earlier, is that electronic discovery requires a bit of knowledge from several different disciplines, good organization, and…brutal honesty on the part of the parties with regard to data. You never know when that document you thought you had consigned to oblivion returns from the dead to haunt you.

Panic is often used to describe a reaction that is isn’t justified. Counsel and their clients might panic, if discovered to have conspired to conceal evidence, just as they would have done in the days of paper archives. Counsel might panic if they hadn’t taken discovery seriously, and mismanged the project (perhaps losing a major client). But it isn’t panic that is driving the industry’s growth. It is necessity. Necessity created by technological change. And it isn’t a bad thing, perhaps. Again, I ask my favorite question: Would you rather search through boxes of paper in a hot warehouse in the middle of nowhere, or would you rather plug search terms into a document retrieval application? We are now in a period of transition, and we are hitting some rough spots. It will get better, I promise.

Posted in Articles, EDD Industry, Trends | 1 Comment »