The eDiscovery Paradigm Shift

Update on Inadvertent Disclosure and FRE Rule 502

2008-09-03T08:51:00.001-07:00

Over the past couple of months there have been some interesting amendments to the Federal Rules of Evidence (FRE) that affect how we will have to handle inadvertently disclosed Electronically Stored Information (ESI) evidence.

Federal Rules of Evidence (FRE) Rule 502
First of all, due in part to the skyrocketing cost of producing electronically stored information in litigation on February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. See Sen. Rept. No. 110-264. If, as expected, the bill is approved by the House of Representatives, the long-anticipated new Federal Rule of Evidence 502 should take effect on December 1, 2008.

Under the proposed rule, the disclosure of the attorney client or work product protected material does not operate as a waiver if the disclosure was made inadvertently and the holder of the privilege took reasonable steps to prevent the disclosure including following the provisions of FRCP 26(b)(5)(B). Rule 502 would apply to all cases in federal court, and protects against waiver in both state and federal court, including cases in which state law provides the rule of decision, notwithstanding Rules of Evidence 501, 101 and 1101. The rule rejects the notion that inadvertent disclosure of documents during discovery automatically constitutes subject matter waiver. As for confidentiality agreements, agreements between the parties are valid as to the parties, and court orders are also valid as to third parties in both state and federal proceedings.

Background
According to a September 2, 2008 article titled "New Rule 502 to Protect Against Privilege Waiver", by Alvin F. Lindsay, a partner in the Miami office of Washington-based Hogan & Hartson, in 2006, House Judiciary Committee Chairman James Sensenbrenner, R-Wis. -- concerned about rising costs associated with ESI -- suggested that the Judicial Conference of the United States consider proposing to Congress a rule dealing with waiver of attorney-client privilege and work-product. Unlike rules of civil procedure, rules governing evidentiary privilege must be approved by an act of Congress pursuant to the Rules Enabling Act, 28 U.S.C. 2074(b).

The Advisory Committee on Evidence Rules accordingly prepared drafts that were revised after testimony from a select group of judges, lawyers and academics, and again revised after two days of public testimony and the consideration of more than 70 written submissions from groups including defense and plaintiffs' lawyers, corporate counsel, the American Bar Association and even prisoners. In late 2007, the Advisory Committee provided its final draft, concluding that the current law on waiver of privilege and work-product is largely responsible for the rising costs of discovery, especially discovery of ESI. The Standing Committee on Rules of Practice and Procedure and the Judicial Conference itself approved the text, which then was introduced as a bill by senators Arlen Specter, R-Pa., and Patrick Leahy, D-Vt.

In complex litigation, lawyers spend significant time in efforts to preserve work-product and the attorney-client privilege because they know that, under existing law in some jurisdictions, if one protected document is produced -- even inadvertently -- there is a risk that a court may find a subject-matter waiver. Subject-matter waiver means that attorney-client privileged communications and work-product are considered waived not only as to the disclosure at issue but as to all related material -- and not only in that instant case, but in all other cases.

Electronically Stored Information (ESI) Disclosure is the Chief Problem
Lawyers producing paper or electronic data worry about subject-matter waivers. Case law is rife with examples of inadvertent disclosures of otherwise privileged material due to clerical, vendor or attorney error. But the real problem is ESI. Our still-adolescent paradigm of electronic data retention, versus the former paper regime, mushrooms the potential for inadvertent production.

Problems include the fact that normal viewing of native-format computer documents, for example, will not reveal hidden metadata about who wrote, edited or last opened some PowerPoint presentation. Embedded data also don't always just show up on the screens of reviewing attorneys. The now-ubiquitous word searches performed using certain native applications, like Outlook, will not identify responsive and potentially privileged attachments. Then there is the multiple-replication problem, endemic to ESI, that provides numerous opportunities for one iteration of a privileged document to slip through a privilege review. These problems are, of course, amplified by the sheer magnitude of sometimes gigabytes or terabytes of data that are increasingly necessary to assess in the wake of the now-famous Zubulake opinions and the subsequent 2006 civil procedure rule revisions governing the production of ESI.

As a result of ESI and the fear of waiving privilege, there are reports of increasingly expensive privilege reviews. Representatives from Verizon testified during an advisory committee public hearing that the company had spent $13.5 million on one privilege review relating to a U.S. Department of Justice antitrust merger investigation. "Think about that the next time you pay your phone bill," one quipped. See Testimony of Ann Kershaw, Jan. 29, 2007, Hearing of the Advisory Committee on Evidence Rules, at 89.

Rule 502 would try to address this cost-of-review issue in several ways. First, it would provide that, in cases of actual waiver, the waiver would not automatically be deemed a subject-matter waiver. Information other than that specifically waived would be produced only if it "ought in fairness" be considered together. The committee note explains that the "fairness" determination required for a broader waiver determination should be limited to situations in which a party intentionally puts information into litigation in a selective, misleading and unfair manner. Obviously, like many of the rule's provisions, this will be litigated extensively, but any cost savings here would seem to flow from damage control to limit the effect of disclosures determined to be actual waivers, rather than from any savings during the privilege review itself.

As to the genuinely menacing prospect of inadvertent disclosure, the proposed rule provides that if such disclosure is made at the federal level, no waiver will be found if the holder had taken reasonable steps to prevent the disclosure and employed reasonably prompt measures to retrieve the mistakenly disclosed information. This provision codifies a middle-ground standard that has been adopted by a plurality of courts requiring some form of balancing test. A minority of courts has applied either strict liability -- meaning that any inadvertent disclosure is a waiver, and perhaps a subject-matter waiver -- or intent-based standards that take hornbook knowing-and-intentional language to the opposite finding of no waiver for inadvertent disclosures.

Under proposed Rule 502, state courts in subsequent state proceedings will be required to honor Rule 502 determinations made at the federal level; if there is an earlier disclosure of privileged or protected information in a state proceeding, admissibility in a subsequent federal proceeding would be determined by the law that is most protective against waiver, even in situations in which potentially less-protective state law would otherwise provide a rule of decision. The exercise of federal pre-emption and supremacy over state law under these circumstances was evidently palatable to the group of state chief justices that commented on the proposed rule. These justices succeeded, however, in blocking other language that would have imposed a uniform middle-ground balancing standard on all inadvertent-disclosure cases, including those made in, and applicable solely to, state proceedings. The state judiciary evidently thought this congressional regulation of traditional state law would be anathema to principles of federalism, if not to the U.S. Constitution.

Importantly, under the proposed new rule, federal courts would be permitted to enter confidentiality orders providing that disclosure of privileged or protected material, for example, under quick-peek and clawback agreements, does not constitute a waiver as to other parties in other state or federal proceedings. In fact, early language prohibiting court confidentiality orders without agreement of the parties was deleted. Presumably, therefore, such orders will be entered on disputed motions or perhaps even courts' own accord.

Will the rule in its final version achieve its stated purpose of reducing the cost of privilege review? Even a middle-ground balancing as to inadvertent disclosure can provide seemingly harsh results. As recently as May 29, a District of Delaware court applied a common law balancing test, but found waiver for the inadvertent production of 165 privileged documents, out of tens of thousands reviewed, because the party failed to satisfy its burden to establish that its search-and-review methodology was "reasonable." Victor Stanley Inc. v. Creative Pipe Inc., 2008 WL 2221841, at *1-*7 (D. Md.).

Nor was the Victor Stanley court impressed with the producing party's "prompt measures to retrieve the mistakenly disclosed data," as it chided the party for the "delay" of a "one-week period between production by the Defendants and the time of the discovery by the Plaintiff of the disclosures -- a period during which the Defendants failed to discover the disclosure." Id. at *8.

One week would actually seem very prompt when, as noted by the American Bar Association in its Feb. 15, 2007, submission to the rules committee, it may be months -- even years -- before errors are discovered, and determining when an error "should have been" discovered is inherently subjective. Thus if such decisions were to continue under the Rule 502's proposed balancing test, the rule would do nothing to change current efforts to prevent inadvertent disclosure by extensive attorney review.

The committee note to proposed Rule 502 does acknowledge, however, that while the rule "does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake," it does require follow-up on obvious indications of potential communication of protected material. Moreover, regarding whether "reasonable steps" were taken to prevent a disclosure, the committee note suggests that using advanced analytical software applications and linguistic tools in screening for privilege may suffice, i.e. with no page-by-page attorney review. Further, implementation of an efficient system of records management may also be relevant to a reasonableness determination.

Whether the rule succeeds in saving money, therefore, will depend on whether courts are willing, first, to conduct balancing tests for inadvertent waiver in a manner that understands the difficulties and costs of reviewing substantial ESI; and, second, to freely enter anti-waiver orders when asked, perhaps even sua sponte.

Notably, the most controversial potential provision of Rule 502, governing selective waiver, ultimately was discarded. "Selective waivers" between government agencies and parties being investigated are attempts to agree that the party under investigation will produce privileged material to the government, while still preserving no-waiver status as to nonparties. The effectiveness of selective waivers, however, has largely been rejected by the courts. See, e.g., In re Qwest Comm. Int'l, 450 F.3d 1179 (10th Cir. 2006).

Although the U.S. Securities and Exchange Commission clearly supported inclusion of a provision codifying the legality of selective waiver in the proposed rule, most others strongly opposed the provision. Several times during the public hearings, business representatives indicated that, although they might have supported the provision five years ago, in the current climate selective waiver would signal a tacit approval of regulatory-agency belief that waiver is the touchstone of the level of cooperation necessary to secure better treatment by the government.

Corporate counsel and business argued that selective waiver would further chill what might be an already cool reliance on the free dialogue between corporate counsel and corporate representatives as contemplated by Upjohn v. U.S., 449 U.S. 383 (1981). Executives don't want to worry that advice solicited regarding a potential compliance program will later become a blueprint of evidence about the company's insufficiencies if failures occur. As a representative from the Association of Corporate Counsel testified, selective waiver would put "an inherent endorsement upon the culture of waiver." See Testimony of Susan Hackett, Jan. 29, 2007, Hearing of the Advisory Committee on Evidence Rules, at 218. These arguments obviously succeeded.

Whether those parties that staunchly opposed the erosion of the attorney-client privilege through selective waivers, but otherwise hailed Rule 502, ultimately will allow even more of their privileged material to be viewed by outsiders under the protection of clawback and quick-peek agreements, however, remains an interesting question.

Pay-Per-Use Litigation Software Pricing Model in 2008 is Not a Game Changer, it is a Requirement

2008-09-02T18:26:00.000-07:00

I have been following with some amount of amazement, the litigation industry buzz around Guidance Software's August 20, 2008 announcement that they are going to begin to offer a pay-per-use pricing option for their EnCase® eDiscovery platform. Don't get me wrong, I think that it is a great idea. However, given the fact that pay-per-use pricing is now a standard pricing options in the rest of software world outside of litigation technology and has already begun to become mainstream in the litigation market as well, I am hard pressed to call it a "game changing" move.

For the past several years, litigation technology vendors with Software-as-as-Service (SaaS) or Citrix based onDemand platforms have been offering a standard pay-for-use pricing model. Examples include Online Review Tool (ORT) technology providers such as Lexbe, ImageDepot™, CaseCentral, CaseLogistix, and many other vendors In addition, many of the new SaaS based email archiving technologies such as Google, Autonomy, MessageOne, LiveOffice and Fortiva base a major portin of their value proposition on the fact that they offer pay-for-use pricing.

SaaS is the future of software delivery across the board and most of the forward looking technology vendors in the litigation services market realized that years ago. Therefore, vendors with legacy technology claiming to be changing the game with a pay-per-user pricing model are actually behind the curve and not leading the pack. The real leaders are the technology vendors that have already embraced the pay-per-use pricing model and are designing and developing true multi-tenant SaaS applications that will dramatically reduce the overall cost of eDiscovery.

Oracle vs. SQLServer Argument Hits eDiscovery Market

2008-08-28T15:02:00.000-07:00

Having spent the last 20 years in the enterprise class software market I am very familiar with the age old argument about whether Oracle's DBMS or Microsoft's SQLServer is better. The Oracle bigots will tell you that SQLServer is slow, doesn't scale and just wasn't architected for true enterprise class use. SQLServer Biggots will tell you that Oracle is way too expensive. I will get in to some of the specifics later in this post. However, first I wanted to point out that the Oracle vs. SQLServer argument has now hit the eDiscovery market with CaseCentral's announcement that they have Migrated their On-Demand eDiscovery Platform to Oracle® Real Application Clusters.

Given the fact that Tom Thimot, CaseCentral President and CEO served as the vice president of central U.S. sales at Oracle, where his team grew license revenues from $50 million to more than $250 million in a two-year period and was also a key leader in the worldwide Oracle applications vertical organization that grew revenues by more than $100 million, it is no big surprise that he is an Oracle Biggot.

The Full Text of the Press Release is as follows:
REDWOOD SHORES, Calif., Aug. 20 /PRNewswire-FirstCall/ --

-- CaseCentral, the leading secure SaaS platform for corporations looking to take control of eDiscovery, has migrated its Software-as-a-Service (SaaS) platform to Oracle Database and Oracle Real Application Clusters to deliver better performance, scalability and availability, Oracle announced today.
-- CaseCentral's platform allows corporations to apply disciplined business process to litigation and regulatory matters, reducing risk and business disruption, boosting productivity, and controlling costs. CaseCentral has delivered its proven, SaaS platform to over 1,100 customers and more than 7,250 registered users.
-- CaseCentral actively manages several hundred terabytes of evidence -- 95 percent of which is unstructured data such as emails, office documents, and images -- and has hosted over 25,000 individual litigation matters.
-- San Francisco-based CaseCentral initially deployed its clustered database environment in 2007. Its purpose-built Java-based platform is deployed on a multi-node cluster of HP BladeSystem servers running Linux.
-- CaseCentral utilizes Oracle Enterprise Manager to help provide the monitoring and management necessary to meet the mission-critical needs of their clients. CaseCentral will migrate customers currently supported by Microsoft SQL Server to the clustered Oracle Database environment.

Supporting Quote
"CaseCentral offers a highly scalable, on demand software platform that allows companies to own the eDiscovery process and their law firms to own the execution," said Ted Sergott, Chief Technology Officer, CaseCentral. "At a moment's notice, a new or existing client can send us millions of documents and terabytes of data to support an eDiscovery matter and thanks to our architecture, we are fully prepared to accommodate that volume of mission-critical data. Running on Oracle Database and Oracle Real Application Clusters, CaseCentral offers customers a scaleable, secure and available platform to meet their eDiscovery needs."

Supporting Resources
About Oracle Database: http://www.oracle.com/database
About Oracle Real Application Clusters: http://www.oracle.com/clusters
About Oracle Enterprise Manager: http://www.oracle.com/enterprise_manager/index.html
To download free, evaluation versions of Oracle software, go to: http://www.oracle.com/technology/software/index.html

About CaseCentral
CaseCentral is the leader in on-demand eDiscovery software for corporations looking to take control of eDiscovery. CaseCentral enables companies to efficiently and defensibly respond to today's legal and compliance challenges, consistently, accurately and faster, while delivering overall savings of 30-60 percent and increasing earnings per share (EPS) by up to 1.1 percent. The company's on-demand eDiscovery software platform, with its secure, multi-party architecture and configurable litigation workflow engine, includes best-practice solution templates that enable companies to be operational within hours. CaseCentral is the first to provide eDiscovery business intelligence dashboards giving customers real-time insight into review rates, quality rates and costs per document by case, firm or user. CaseCentral is used by more than 25 of the Fortune 100 and 81 of the AmLaw 100. Founded in 1994, CaseCentral is consistently chosen to handle many of the most complex and highly visible litigation projects in the nation. For more information, call 1.800.714.2727 or visit http://www.casecentral.com/.

About Oracle
Oracle (ORCL) is the world's largest enterprise software company. For more information about Oracle, please visit our Web site at http://www.oracle.com/.

Oracle vs. SQLServer
According to a recent whitepaper available on the Microsoft site title "Leaping Forward: SQL Server 2008 Compared to Oracle Database 11g", Microsoft SQL Server has steadily gained ground on other database systems and now surpasses the competition in terms of performance, scalability, security, developer productivity, business intelligence (BI), and compatibility with the 2007 Microsoft Office System. It achieves this at a considerably lower cost than does Oracle Database 11g.

So, Microsoft contends that Microsoft® SQL Server® 2008 outperforms Oracle in the areas that matter to your business. The following summarizes some of the mission-critical areas in which SQL Server 2008 excels:

Performance and Scalability: SQL Server scales to some of the world’s largest workloads, evidenced by strong industry standard benchmark results. Customers such as Unilever, Citi, Barclays Capital, and Mediterranean Shipping Company support their most mission-critical applications on SQL Server. Customers running SQL Server 2008, including large ISVs such as Siemens and RedPrairie, report excellent experiences with the latest scalability enhancements. SQL Server is recognized as Best Seller and Top Growth Best Seller by CRN Magazine.

Security: The National Vulnerability Database (NIST) reports over 330 critical security vulnerabilities in Oracle database products over the last four years. During that same period, SQL Server 2005 experienced ZERO vulnerabilities. This result comes from secure engineering processes as part of the Trustworthy Computing Initiative, comprehensive security features, and a robust Microsoft Update infrastructure. This winning combination reduces both security risks and patching downtime for customers. According to one expert, Oracle is five years behind Microsoft in patch management. Computerworld reports that two-thirds of Oracle DBAs do not apply security patches.

Developer Productivity: SQL Server works with Microsoft Visual Studio® to help provide an integrated development experience, allowing developers to work in one environment across the client, mid-tier, and data-tier. SQL Server 2008 takes a step further with new development features. In contrast, Oracle’s array of tools and SDKs, assembled via acquisition, require developers to learn and work across numerous interfaces. In fact, IDC reports that Microsoft is the number one application technology platform of choice.

Business Intelligence: SQL Server is part of the Microsoft integrated Business Intelligence platform, which spans data warehousing, analytics and reporting, score carding, planning, and budgeting. SQL Server is in the Leader’s quadrant in both Gartner’s Magic Quadrant for BI Platforms and Magic Quadrant for Data Warehousing. SQL Server 2008 introduces more innovation with new data warehousing and business intelligence features. According to Oracle’s latest price list, the company currently charges up to an additional 800% or more on top of their base database fees for similar functionalities.

Microsoft Office System Integration: SQL Server helps customers gain better business insight and make faster decisions through the product's tight integration with the familiar Microsoft Office System user interface. For example, add-ins such as Data Mining for Excel uses both SQL Server and Microsoft Office to provide insight into customer data. IDC recognizes Microsoft as the fastest growing BI tool vendor. Oracle has Microsoft Office Plug In, which includes subset of the functionalities that SQL Server provides, but charges an additional $30,000 per processor.

Total Cost of Ownership: SQL Server has a simple tiered SKU licensing model. Oracle, on the other hand, has a complex array of options and add-ins that are required to develop, deploy, and manage most large-scale applications. The SQL Server integrated development environment and easy-to-use development tools lead to improved Time to Solution and Time to Value for applications and business insight. SQL Server is highly successful in the areas of self-tuning and automated administration, resulting in a much simpler deployment and management profile than Oracle Database 11g. SQL Server is designed to work seamlessly with the rest of the Microsoft software stack, which can help provide smoother development and deployment experience and higher performance than Oracle.

Summary
As I started this post, I grew up in the enterprise software market and therefore learned to tow the Oracle line and bash SQLServer as a nice little departmental database that would never have what it takes to play in the big leagues. However, I believe that Microsoft has come a long way and now that I am "playing" in the legal market, I would recommend that any technologies sitting on the SQLServer platform will have to be considered just as strong as the technologies sitting on Oracle.

And, I hope that someone out there in the litigation market challenges this position so that we can rekindle some of the debate that was so much fun for so many years in the general enterprise markets. And, it is arguments / debates such as these that will help to usher the litigation market into the world of leading edge technology.

ABA Issues Formal Opinion 08-451 Outlining SOPs for Outsourcing Litigation Services

2008-08-28T08:55:00.001-07:00

On Monday, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility released a statement regarding a new ethics opinion (Formal Opinion 08-451), which concludes that U.S. lawyers can outsource legal and nonlegal work provided that they adhere to ethics rules regarding competence, supervision, protection of confidential information, reasonable fees, and not assisting in the unauthorized practice of law. The opinion, entitled "Lawyer’s Obligations When Outsourcing Legal and Nonlegal Support Services," outlines the ethics obligations of lawyers and firms that wish to utilize legal and nonlegal outsourcing.

Stating that "[a] lawyer may outsource legal or nonlegal support services provided the lawyer remains ultimately responsible for rendering competent legal services to the client," the opinion notes that lawyers and law firms engage lawyers and nonlawyers for various legal and nonlegal support services, ranging from "the use of a local photocopy shop for the reproduction of documents, to the retention of a document management company for the creation and maintenance of a database for complex litigation, . . . or even to the engagement of a group of foreign lawyers to draft patent applications." The opinion acknowledges, however, that "[t]he challenge for an outsourcing lawyer is . . . to ensure that tasks are delegated to individuals who are competent to perform them, and then to oversee the execution of the project adequately and appropriately."

Given the rapid rise in the cost of eDiscovery over the past 24 months coupled with the undeniable financial opportunities offered by our global economy and the recent application of Internet based technology to the litigating services market, this opinion is basically setting operating standards in a "market" where most of the horses have all left the barn, the door is still wide open and we are all wondering about the competence of the horses that haven't left.

All that being said, given the fact that this is not the mission of the ABA to endorse any practices and therefore, regardless of the press releases that are cropping up from litigation services vendors, this is not an endorsement of outsourcing your litigation services on-shore or off-shore.

It does, nonetheless, provide a framework and set of criteria for outsourcing as follows:

1. The outsource has the "legal knowledge, skill, thoroughness and preparation reasonably necessary."
2. The client consents in writing, with a knowing acceptance of the risk of breach of attorney-client confidence.
3. Outsource work is properly supervised by US counsel, including appropriate protection of client secrets.
4A. The US lawyer checks background and references.
4B. The outsource legal education is comparable to a US legal education.
5. The outsource signs a confidentiality agreement.
6. The fee remains reasonable after including any US surcharge for overhead.

In an upcoming Blog posting, I will compare the costs of completing litigation services under several different scenarios:

1. Internally within the corporation
2. Externally, on-shore with outside counsel
3. Externally, off-shore with outside counsel
4. Externally, on-shore with a 3rd party service or technology vendor and/or consulting firm
5. Externally, off-shore, with a 3rd party service or technology vendor and/or consulting firm

I predict that some of your will be shocked at the wide variance in price and/or how much money you are leaving on the table.

New Litigation Software Review Site

2008-08-27T11:19:00.000-07:00

With the potential changes to The Socha-Gelbmann Electronic Discovery Survey, I started to research alternatives for substanttive research on litigation technology. I am pleased to report that I have found LitiReview by Lexebe.com.

Launched in August of 2008, LitiReviews boasts the largest collection of free legal and litigation software reviews on the web. All reviews (100+) are full-text, and have been published in legal magazines, journals, websites and blogs. LitiReview links to copies of reviews available on the internet, or hosted by us at the author's request.

LitiReview enables users to:

- See the latest reviews listed below
- See only reviews from a specific software category or for a particular application by clicking on the links to the left
- Register for our free newsletter including recent reviews
- Receive our RSS feed in XML or in the following readers: Google Yahoo AOL
Send this page to a friend
- Find out more about the LitiReviews legal software reviews collection
- Add a legal software review to the collection
- Make a specific search in the box below

I would encourage anyone interested in researching litigation technology to take a look at LitiReview by Lexebe.com.

Example Reviews

CaseLogistixReview: Anacomp’s CaseLogistix 5.2, by Timothy Piganelli. Overall this tool has to be one of the top choices for document review with its native file review capability. Attorneys and law firms that have an in-house IT or litigation support staff to handle the SQL application would find CaseLogistix useful and very workable. My top three features are the Document Native Review tool, the IntelliFolders and their functionality, and the prompted search feature. Category: Electronic Discovery. Written: 2008. Added: 8-15-2008. Techno Lawyers

Trident 4.0 SoftwareTrident Suite from Wave Software, by Randall Consulting. Trident 4.0 Software suite is composed of five unique applications to assist in processing PST files: Email De-Duplication, Email Re-Generation, Message Exporter, Message Importer and Snapshot software. Category: Electronic Discovery. Written: 2007. Added: 8-11-2008. Randall Consulting

OneO Discovery PlatformFerris Research on OrangeLT™, by David Ferris. The integrated analysis, processing, and review is certainly an attractive feature, making life a lot simpler for the user. Today, these different phases are commonly handled by separate products. Over the long term, such integration is likely to win out over cobbling together best-of-breed solutions. Category: Electronic Discovery. Written: 2008. Added: 8-02-2008. Ferris Research

SafeCopy 2.1 MobileReview: SafeCopy 2.1 Mobile, by Bruce A. Olson. SafeCopy 2.1 Mobile by Pivotal Guidance is an inexpensive tool that may enable you or your client to maintain document security and validity as part of the discovery process. SafeCopy is not, however, intended to be a forensic application that can create a forensic image of a drive. SafeCopy offers a cost effective option that fills a needed niche. Category: Electronic Discovery. Written: 2008. Added: 7-12-2008. Technolawyer

ConcordanceThe E-Discovery Hostess with the Mostest, by Dennis Kennedy. Lawyers beginning to delve into the world of electronic discovery often express surprise at how even simple cases can involve large amounts of electronic data. Help is usually the first word that comes to mind. With Hosted FYI, you and your team can review, process, store, retrieve, redact, and share documents in a secure, centralized, and always-accessible environment. Category: Litigation Management. Written: 2007. Added: 7-12-2008. Law.com

Discovery AttenderDiscovery Attender From Sherpa Software, by Brett Burney. Discovery Attender from Sherpa Software is a sturdy platform that enables you to search across electronic mailboxes, email archives, and folders of loose files. I found Discovery Attender to be an extremely simple and effective tool for searching through a hefty stack of email. It wasn’t overly complicated, and after a couple of searches, I became very comfortable with the logical steps involved in the Search Wizard. Discovery Attender is a nice addition to the tool belt of anyone who regularly needs to search through email to find messages relevant to a litigation matter. Category: Electronic Discovery. Written: 2008. Added: 7-10-2008. Technolawyer

CaseLogistixCaseLogistix Discovery Partner, by Jonathan Franklin. I like this product a lot. It’s powerful, easy to use and intuitive. Candidly, it’s the first program in this market segment that my firm wants to use. In fact, the firm now is using it. Dynamic document analysis and management. Its SQL-based system is powerful, highly scalable and robust. No predefined templates for library creation. An integrated training video would be nice. It exceeds expectations. Category: Electronic Discovery. Written: 2006. Added: 7-09-2008. Law Office Computing

IPROIPRO ePrint-IT, by Milton Hooper. EPrint-IT is very easy to use and features only one screen with which you mainly work. Once installed, you immediately can start putting ePrint-IT to use. The customizable options are easy to understand and adjust. It's a little pricey at $695 for the first year ($195 each year thereafter) and might not be worth the investment for someone who doesn't have a lot of electronic documents. If you are involved in EDD and don't have time to learn new software, ePrint-IT might be the right match for you. Category: Electronic Discovery. Written: 2008. Added: 7-09-2008. Legal Assistant Today

Another Round of eDiscovery Technology Enhancements as Vendors Stampede Towards Single Source Solutions

2008-08-27T09:45:00.000-07:00

Although it is not the purpose of The eDiscovery Paradigm Shift to track litigation technology vendors and thier most recent releases, it appears that there has been a recent flurry of announcements regarding either the enhancement of early collection or the addition of further Early Case Assessment (ECA) analysis that futher enforce my contention that there is a variable vendor stampede towards single source solutions: eDiscovery Single Source Solutions.

This vendor stampede is great for end users in the short run as it appears that most of the more well know players in the litigation technology market are continuig to offer the missing components to bring their solutions up to the "single source" platform criteria.

However, in the long run as is always the case when market to through a paradigm shift and as we are now witnesses with the last days of NFL training camps, not everyone, not every vendor is going to make the cut. There is going to be consolidation, some complete failures and some near failures. And, in the long run this will be good for a stable mature eDiscovery markte. However, in the short run, even through end-users now have many "good" choices, they better consider other factors in choosing their vendors such as longevity.

In future posts to this Blog, I will offer some suggestions to end users to help them avoid choosing the wrong vendors.

August 2008 Vendor Announcements

Kazeon Extends eDiscovery Collection, Processing and Analysis with Legal Hold and Laptop/Desktop Product

Mountain View, Calif. - August 25, 2008 - Kazeon Systems, Inc., a leading provider of intelligent eDiscovery solutions, today announced the availability of Version 3.1 of its award-winning Information Server IS1200-ECS. The new version introduces a new in-place legal hold, KazHold™ and a new agent-less product for in-place analysis of and collection from laptops/desktops. These new products and functionality are key enhancements in helping organizations streamline their collection, analysis and processing for proactive and reactive eDiscovery processes and ensure that they discover all relevant and necessary information for any litigation related activity. These new capabilities provide extensive defensibility and audit ability for eDiscovery by ensuring no spoliation of data and no modifications to metadata attributes of files and emails, while saving significantly on network bandwidth and cost during the process of collection, processing and analysis. With Version 3.1 of its Information Server IS1200-ECS Kazeon continues to set the standard in addressing the most sophisticated eDiscovery requirements of organizations worldwide. The IS1200-ECS is now being used by hundreds of corporations worldwide, and has more than 50 billion documents and 3000 Terabytes under direct management.

FTI Announces Availability of Attenex® Patterns® 5.0

FTI Consulting, Inc. (NYSE:FCN), the global business advisory firm dedicated to helping organizations protect and enhance their enterprise value, today announced from the ILTA ’08 conference the availability of Attenex Patterns version 5.0. The release of Attenex Patterns 5.0 marks the first product announcement since FTI Consulting acquired Attenex in July 2008. The new eDiscovery software includes a number of significant enhancements to help corporate IT departments administer and enforce a repeatable in-house eDiscovery process.

“Attenex Patterns is the eDiscovery standard for many law firms and corporations because it puts them in the best position to make the best decision on any matter—whether for investigations, legal or compliance needs,” said JR Jesson, senior managing director of FTI Consulting. “Enhancements in Attenex Patterns 5.0 benefit corporate IT teams tasked with developing a defensible and cost-effective eDiscovery process.”

Among the new features within Attenex Patterns 5.0, the software development kit (SDK) enables corporate IT teams to automate eDiscovery processing tasks, reducing unnecessary expenses and the risk of human error. The software’s open APIs help corporate IT teams leverage existing investments by integrating Attenex Patterns with complementary applications and data sources. Additionally, corporate IT teams can develop integrated utilities for custom eDiscovery processing tasks.

The dramatic growth of enterprise data collected during litigation, internal investigations and regulatory inquiries creates new challenges for corporate eDiscovery teams. Attenex Patterns 5.0 helps the in-house team rise to this challenge by delivering several new performance enhancements for managing eDiscovery matters—whether multinational or multi-terabyte. These enhancements include improved data processing and search performance with Asian languages, faster processing speeds for multiple PST and NSF files, as well as faster de-duplication and re-clustering capabilities to help eDiscovery teams more quickly make sense of the data during internal investigations and case assessments.

Businesses have identified Attenex as a top five eDiscovery software provider for the second straight year in the most recent Socha-Gelbmann eDiscovery survey. A longtime market leader in document processing and analytics software for eDiscovery, Attenex Patterns software consists of:

Attenex® Patterns® Workbench™, enterprise-class data and project management software used by leading corporations to implement repeatable in-house eDiscovery processes. More than a culling tool or appliance, in-house eDiscovery teams rely on Workbench’s unprecedented flexibility for filtering collected data, developing case strategy as well as tracking document decisions and work product throughout the process; and Attenex® Patterns® Document Mapper™, the choice of legal and compliance teams that need to quickly and accurately identify relevant information from electronic document collections of any size. An unparalleled visual interface increases review productivity with a multi-dimensional look at the collection’s main concepts and themes. Reviewers can quickly and accurately identify, analyze, review and categorize documents during internal investigations or case assessments.

Attenex Patterns can be deployed on-premise or on-demand through an Attenex Advantage™ service provider, providing flexible deployment options that can be customized to the needs of any environment. This flexibility, combined with new features in version 5.0, further strengthens Attenex Patterns’ position as the premier eDiscovery software for corporations that want to take control of their eDiscovery process.

StoredIQ eDiscovery Appliance 4.6 Increases Functionality Leadership with Expanded Platform Support and Enhanced eDiscovery Features

Austin, TX. August 25, 2008 — StoredIQ, Inc., whose innovative eDiscovery technology revolutionizes the way companies address eDiscovery and litigation readiness, announced today expanded platform integration support and enhanced eDiscovery functionality designed to improve the efficiency of IT and legal teams performing work within the eDiscovery lifecycle.
"StoredIQ automates more of the eDiscovery lifecycle than any other solution," said Steve Killan, Enterprise Server Manager at James Hardie, the world leader in fiber cement technology. "StoredIQ delivers unparalleled functionality in both breadth and depth from information management through the identification, collection, preservation and processing of electronically stored information."

StoredIQ V4.6 includes:

- Expanded Platform Support
- Ability to insert unstructured information as records into the most current version of EMC Documentum and place those items under litigation hold
- Ability to insert, retrieve and manage information within Microsoft Exchange 2007 and SharePoint 2007
- Deeper eDiscovery Capabilities
- Improved query report analytics to assist with "meet-and-confer" sessions
Ability to harvest additional email server objects such as tasks, contacts, calendar items, and notes
- Support of the EDRM XML V1.0 load file format
- Enhanced usability and productivity for pre-collection investigations

SearchStorage.com Blog post Misses Point on Forrester Teleconference on email Archiving

2008-08-20T13:05:00.000-07:00

Beth Pariseau with SearchStorage.com misses the point "with her title" in an August 19th, 2008 posting titled Forrester urges users to avoid overkill with email archiving
regarding comments that Forrester analyst Jo Maitland made in a recent conference call to clients about email archiving.

Maitland did a really great job outlining the requirements of email archiving under various scenarios and never really urged users to avoid overkill. In fact, she states appropriately that “Email archiving is a strategic project, not just a quick fix to manage performance or service levels - it aims to manage information for the long term.” And, she only used the words "overkill" when discussing the use of WORM Storage when stating while policy-setting is still an area of unavoidable complexity, Maitland also emphasized that users won’t necessarily need all the features in every archiving and e-Discovery product. WORM, for example “is overkill for most things.” Instead, if a company really needs WORM for a subset of data, she advocated a tiered strategy where only the data that really needs WORM protection is migrated and stored on a WORM system.

I agree with Maitland on this issue. However, I would add the facts that for those organizations under SEC compliance requirements, SEC Rules 17a-4, 204-2 and 31a-2 require storing relevant emails in WORM storage for a given period. And, there is no doubt that maintaining separate WORM storage just for email adds to costs and increases support and management demands on storage administrators. However, some Web-based email archiving can save these admins money and relieve a few headaches. In addition, Web-based archiving also typically offers secure storage. This provides a real disaster recovery benefit, since emails are automatically stored off site.

However, I contend that to use this example and quote from Maitland in the title is a dangerous misrepresentation of the seriousness of email archiving. I would suggest that the title should be Forrester outlines email archiving mistakes to avoid.

The full text of Beth's posting is as follows:

Everyone and their brother has an email archiving story to tell you these days, or so it seems. But Forrester Research analyst Jo Maitland told Forrester clients in a teleconference titled “Email Archiving Mistakes to Avoid” to keep things simple in their selection of a product and setting of policies.

Users need to begin with a strategy that addresses backup and archiving separately (apparently not everyone in the storage industry read Mr W. Backup’s definitive “Backups are not Archives” article a couple years ago…). Then, they should take into account their requirements for the deployment - whether it will be for end user restore/Exchange optimization, or for legal discovery.

According to Maitland, this is the most crucial step in determining which product will work best in a given environment, and one not everyone clearly understands. This isn’t helped by an overcrowded market with vendors trying to shout over each other with ever-more-complex features, but Maitland boiled it down to a few key things. An archive for e-Discovery should mark data for legal hold and notify an administrator when new content hits an existing search; those seeking an archive for legal discovery should also try to look for one that covers more data types than just email.

For email optimization and end user restore, the product should allow access to emails via a Web browser, automatically copy messages to the archive and delete them from primary storage (too many stub files can still clog up the mail server), and allow simple retrieval back to the inbox.
The two purposes for an archive - eDiscovery and end user restore - can be mutually exclusive, Maitland said.

Once the requirements are determined, Maitland advised that policies be set - and once again, kept as simple as possible. “Nirvana policies are not practical,” she said. If policies are too strict or too lax, she pointed out, “everybody ignores the policy and finds underground ways of keeping their data anyway.” A 30-day deletion policy, moreover, “flies in the face of 10 years of best practices in records management,” and can still expose a company to risk when it needs some data to defend itself. But keeping data forever quickly overwhelms today’s search and indexing tools.

While policy-setting is still an area of unavoidable complexity, Maitland also emphasized that users won’t necessarily need all the features in every archiving and e-Discovery product. WORM, for example “is overkill for most things.” Instead, if a company really needs WORM for a subset of data, she advocated a tiered strategy where only the data that really needs WORM protection is migrated and stored on a WORM system.

So, yes, with this type of tiered approach, it means ongoing management, something Maitland said admins often overlook when planning an archiving strategy. “With archiving today it can’t be just plug it in and forget it,” Maitland said. “Email archiving is a strategic project, not just a quick fix to manage performance or service levels - it aims to manage information for the long term.”

Early Case Assesement (ECA)

2008-08-19T09:28:00.000-07:00

With the accelerating increase in the amount of Electronically Stored Information (ESI) and the associated changes to the Federal Rules of Civil Procedure (FRCP) enacted in December of 2006, a proper understanding of preservation requirements and Early Case Assessment (ECA) have become an integral part of the litigation process.

In a perfect world, as soon as defense counsel or anyone within an organization with fiduciary responsibilities believes that there is the potential for litigation or is actually notified of a pending litigation, they have the responsibility to preserve any evidence that may pertain to the matter.

While each state, and some local jurisdictions, has promulgated its own rules, the Federal Rules of Civil Procedure (FRCP) in general and FRCP 26(a) and FRCP 26(b) specifically set forth the guidelines for producing, both spontaneously and upon request relevant and material evidence.

Inherent in the reasoning behind these rules is the requirement that in order to produce a thing, one must first have preserved it. For those parties who are not inclined to appreciate this inherent reasoning, there are other rules (and corresponding sanctions) designed to enhance this understanding.

For discussion of the "safe harbor" provisions of a proposed amendment to FRCP 37, and an analysis of numerous federal sanction request cases as related to the advisability of such amendment, see S. Scheindlin and K. Wangkeo, eDiscovery Sanctions in the 21st Century, 11 Mich. TELECOMM. TECH. L. REV. 71 (2004), http://www.mttlr.org/voleleven/scheindlin.pdf

For those parties that do understand the importance of these requirements or have learned the hard way through sanctions or case losses, the importance of these requirements, Early Case Assessment (ECA) is hopefully become a part the standard operating procedure (SOP) as soon as it is clear that a matter is imminent.

This all being said, Early Case Assessment (ECA) is becoming an actual market with its own consultants, technology, services and beginning of best practices.

Industry Quotes and Comments on Early Case Assessment
Following are several quotes from vendors and comments regarding the importance of ECA and their technology. As it appears that just about every technology vendor in the litigation space is getting into ECA in some way, this list is in no way comprehensive and therefore I would encourage other vendors to send me their thoughts, comments and descriptions of their ECA technologies.

Clearwell
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"Early case assessments represent a critical point in the lifecycle of a case, and is one of the primary reasons why leading enterprises and law firms are selecting solutions like Clearwell," said Kamal Shah, vice president of marketing, Clearwell Systems. "Clearwell plays a pivotal role by helping in-house legal teams and law firms assess risk based on case facts, more accurately estimate e-discovery costs, and develop case strategies much earlier in the e-discovery process."

"We were facing a complicated case and had virtually no time to determine the facts. If we did not have access to Clearwell, the case would have become excessively costly and time consuming, resulting in significantly increased risk," said Steven Perfrement, Esq, partner in the Litigation Practice Group at Holme Roberts & Owen LLP. "We were very impressed with the speed and ease of use of the Clearwell platform. The product was very intuitive and user-friendly, which saved us precious time on the case.

Clearwell's advanced capabilities made it very easy to find the key facts needed to accurately evaluate the case and prepare for early settlement negotiations." Clearwell's early case assessment capabilities provide insight into case facts at the beginning stages of an investigation or litigation, and enables enterprises and their law firms to:

- Determine what happened and identify the "key players."
- How did the incident happen?
- Why did it happen?
- Who was involved?
- When did it happen?
- How does the case posture appear on the merits?
- What is the amount of controversial facts and what it the ultimate exposure?
- Is this a routine matter or a unique situation?
- Can the case be settled quickly, or must we prepare for a protracted battle?
- What is the volume of evidence that is pertinent to the case?
- hat are the possible culling and review strategies that can reduce the cost and time of eDiscovery?
- Are you collecting all the data that you are supposed to be collecting?
- Are there any requirements for foreign language expertise?
- Are there any data quality issues?
- Which search term analysis may be necessary to present and discuss during the "meet and confer."?
- Which terms are most important to the case?
- Are the search terms proposed by requesting party too broad?
- Do you have an argument to limit the scope of discovery request?

Daticon
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Performing an Early Case Assessment (ECA) can provide valuable insight into all of these areas and better prepare the litigation team for the "meet and confer" with the opposition. A recent industry survey indicated that performing an early case assessment resulted in a favorable outcome in 76% of cases - among other benefits.

A well executed ECA assists the litigator and corporate counsel in understanding the following:

- The custodians involved in the matter
- Where their data is located
- How much data the case involves
- If any of the data is inaccessible

Additionally, in some cases ECA can provide visual insight into the data itself. Accordingly, ECA permits an informed risk assessment of the matter so the case can be settled quickly if potential costs rise or the results of the data visualization reveal bad facts.

Managing Legal Risk Using ECA
I also found a very interesting Blog posting on DCIG by Joshua L. Konkle on March 18, 2008 6:00 am titled Managing legal risk using early case assessment to reduce reviewed documents.

And although I don't completely agree with everything that Gregory Buckles says, it provides yet another voice indicating the importance of ECA. The full text of this posting is as follows:

Synopsis Part 1: Legal and business issues IT must know when choosing an early case assessment tool

Synopsis Part 2: Managing legal risk using early case assessment to reduce reviewed documents Electronic data discovery interview - Gregory "Greg" Buckles, eDiscovery business process consultant, Reason-ed, LLC, (Part 2 of 2).

Gregory Buckles is an independent corporate consultant specializing in discovery technology and process solutions. He has 19 years experience in discovery and litigation including police forensics, law firm, vendor, corporate and software development. He is an active participant in the Sedona Conference and EDRM projects.By Joshua Konkle writing for DCIGInc.comwww.dciginc.com

Joshua Konkle: I've discussed in-house early case assessment (ECA) with a few vendors. A common response is risk associated in the review process. Risk ensues when during the review an attorney needs more data from the source data set for review purposes, thus requiring the company to revisit the ECA system for more data. I was told in most cases it happens 70% of the time. What are you thoughts on that review data risk?

Greg Buckles: I would agree with that 70% of the time reviews require more data from the source, in fact, it is probably higher. The reason the source data needs to be recalled during review is based on a simple fact - "the review phase is the FIRST time a qualified reviewer has looked at the data qualitatively, i.e. custodians, concepts, context etc."Waiting until the data is in a review system to evaluate it is causing companies thousands if not millions annually. Those dollars would be much better spent as pennies, which is the cost of ECA tools in terms of review budgets. The goal's are simple 1) reduce data sets going into review 2) improve data review during collection.Companies can reduce the amount of data being re-requested during review if they evaluated data ahead of review. If a company desires to reduce the amount of money spent on review they must implement on-premise ECA tools and use them to review data.

Joshua Konkle: In your experience, what is happening today? Aren't companies doing early cases assessment through interviews etc?

Greg Buckles: Companies are doing early case assessment. Often times it is a very simple approach. For example, an attorney working for the company will ask an employee for their opinion on the issue and to submit all documents and email related to the cases or issue. Individual perception and memory impact these responses. Then, when an end-user delivers data it is typically only what they have received and what they have filed. However, there are thousands or more emails and documents in their sent items. These little things are unintentionally overlooked by employees.To overcome these challenges companies need tools that analyze the known relevant data. They don't need complicated preservation and legal hold; they just need to start looking at the data earlier in the process. For example, a recent client used the Axis Deduplicator to deduplicate PST files. Since it the reduced the size, they reduced the cost of an ECA tool. In this example, the client used Attenex Snapshot reports to get a dashboard view of the custodians and concepts. The intuitive interfaces enable a focused view to find the critical facts and criteria needed to decide strategy and arm the client for the meet-and-confer.

Joshua Konkle: In your experience, what are the pitfalls that enterprises have yet to encounter bringing eDiscovery inside their firewall?

Greg Buckles: The primary issue is defining which parts of the process to in-source and the thresholds for using outside assistance. The costs and effort associated with an average discovery must be evaluated. Then a company can design a legal risk management system in line with their needs and expected budgets. A gap analysis for both cost and effort will ensure the economics of the system are in the company's best interests. By economics, I mean avoiding spending more money than they are saving. A good start would be to purchase or test ECA tools.

If you would like to communicate with him directly, he can be reached at greg(at)reason-ed.com or by calling Reason-eD, LLC at 1 713 530 3416.

Evidence Lifecycle Management

2008-08-11T09:55:00.000-07:00

I had to the opportunity this past week to speak with Steve Liley, the Founder, President and CEO of WorkProducts and get an update on the current status of his Evidence Lifecycle Management (ELM) appliance. The discussion was prompted in part from my recent post titled, "eDiscovery Confounds Companies and Their Lawyers" and several other posts over the past month revolving around my recommendations for the enterprise to engage in pro-active eDiscovery.

I met Steve about a year ago and found him to have a very indepth understanding of the eDiscovery market with specific insight into pro-active eDiscovery. As such, I always enjoy our discussions/debates regarding the current state of the eDiscovery market.

Discussion Highlights
In our discussions this past, Steve indicated that his customers and ELM Ecosystem Partners are looking to the MatterSpace® Evidence Lifecycle Management (ELM) appliance for preservation management and case assessment/ESI delivery. This is because preservation management and case assessment are interwined with hold notices added/released based on case assessment, etc. Looking at this from the EDRM standpoint, this places MatterSpace® at the very beginning of the cycle if not earlier and places them in competition with other applicance vendors such as Kazeon and Mimosa Systems, litigation software providers such as Autonomy, and best of breed providers for litigation hold such a PSS Systems and Exterro.

He went on to further emphasize that another big reason for this is the WorkProducts business model, which is focused on MatterSpace® being much cheaper than one of the Top Prservation Software Provider (traditional software install for preservation mgt. = $500K+) with a small upfront subscription fee and per custodian crawl vs. a gigabyte model for collection/case assessment. This allows all size cases (3 custodian employment matters, etc.) to utilize MatterSpace® even when the stakes are small ($20K claim) as the user knows how much they are going to spend upfront.

Steve provided me with an example of a large company with 1,000 annual cases that has deployed MatterSpace® for just this reason. He contends that the per custodian crawl model scales up better than per gigabyte scales down for preservation management and case assessment.

We finished up our discussion by discussing the fact that facilitating eDiscovery services providers with behind a corporate firewall appliance that does preservation management & case assessment to then export data to service providers per gigabyte processing and review business models provides for a seamless client experience on all size litigation, scaling with each client’s case management needs.

My Conclusion
The proactive eDiscovery technology vendors hold the key to reducing the complexities and cost of "one-off" eDiscovery. As such, I believe that Steve and WorkProducts have a very bright future.

About WorkProducts
WorkProducts provides a leading Evidence Lifecycle Management (ELM) solution, the MatterSpace® Appliance, that speeds up matter-specific ESI delivery by a factor of ten - with improved quality - while dramatically reducing the risks and costs of ESI processing and legal review. MatterSpace is a secure, plug-and-play hardware and software appliance that quickly installs in a customer's network environment, integrating their eRecords systems with downstream eDiscovery products and services. MatterSpace "crawls" the enterprise network to identify, preserve, collect, index, and de-duplicate all accessible structured and unstructured electronically stored information (ESI) for all identified custodians and sources. This includes all enterprise accessible desktops, file shares, Exchange/Domino email, SharePoint, Symantec Enterprise Vault, ZANTAZ EAS, EMC Documentum, Open Text, etc. It also facilitates collaboration among all concerned parties and monitors and tracks all matter-specific ESI communications and events, including litigation holds.

eDiscovery Confounds Companies and Their Lawyers

2008-08-08T08:04:00.000-07:00

As an excellent adjunct to my Blog entries over the past several weeks regarding how corporate council within the Global 5000 and their associated outside council are dealing with the eDiscovery Paradigm Shift, Neil Roiter, Senior Technology Editor at SearchSecurity.com recently wrote a great aritlce titled "E-discovery still confounds companies and their lawyers".

Mr. Roiter does an excellent job of describing some of the more pressing issues facing the enterprise and their legal professional both inside and out with quotes from John Benson, an electronic discovery consultant for Kansas City law firm Stinson Morrison Hecker LLP.

I was particularly amused by a quote from John Benson where he state that "The world left the legal profession in the dust years ago," Benson told a Black Hat audience Wednesday. "Attorneys are just coming to the realization that people have computers and have important information on them. I spend a good deal of time dragging attorneys kicking and screaming into the 20th century."

I believe that this comment was definitely representative of the industry in 2006 and 2007. And, it may still be true for a certain portion of the industry that is probably going to have a hard time being successful with the eDiscovery Paradigm Shift. However, I have seen the legal profession take a much more aggressive embrace of technology over the past 18 months.

Mr. Benson also points out that the major cost of eDiscovery is with the review process and that this piece could cost upward of $1,000 per GB. Again, I believe that this was true in 2007 and and even early in 2008. However, with the mass roll out of email archiving technologies such as Kazeon, culling technology from the major EDD players, de-duping technology such as Equivio and the move to less expensive offshore review from organizations such as Integreon, the over all cost of review is beginning to fall. In addition, the legal market is becoming more aware of what eDiscovery should cost and processing best practices and as a result I am also staring to see "Quick Peek" EDD for an initial processing run on native files going for as little as $250-$300 per GB.

Benson also does an excellent job pointing out that eDiscovery security is an issue that the enterprise needs to be concerned with. Becoming known in the industry as "Chain of Custody", there are now several vendors that offer this as part of their overall offering such as "FirstLink" from Trial Solutions or as a stand-alone solution from organizations such as PSS Systems.

In summary, I think that Neil and John have pointed out some very important issues that are facing the legal community in regards to the eDiscovery Paradigm Shift. I just think that they are about 18 months behind in their view of where the industry, or at least the innovators and early adaptors actually are today.

The full article by Mr. Roiter is as follows:

E-discovery is incredibly expensive, time-consuming and fraught with error. If you botch it, your company may lose its case in court and be sanctioned with heavy fines for failing to produce all the required information. And your lawyers can get hauled before the bar association for ethical breaches if their client (that's you) fails to meet its legal obligations.

Federal Rules of Civil Procedure (FRCP) were amended in 2006 to clarify the requirements for e-discovery, said John Benson, an electronic discovery consultant for Kansas City law firm Stinson Morrison Hecker LLP, but the issues around e-discovery should have been resolved a long time ago, he said.

While companies have routinely been creating, distributing, storing, duplicating and re-duplicating information electronically for years, when it comes to e-discovery, most corporations, and what's more troubling, their lawyers, still don't get it.

"The world left the legal profession in the dust years ago," Benson told a Black Hat audience Wednesday. "Attorneys are just coming to the realization that people have computers and have important information on them. I spend a good deal of time dragging attorneys kicking and screaming into the 20th century."

Legal discovery is not a cookie-cutter process. Each corporate environment and case is different. E-discovery is expensive and will likely remain expensive. What's more, the e-discovery process itself is fraught with security issues; but companies can do a lot to minimize costs, strengthen their hand in court, and avoid sanctions while securing information. IT plays a critical role.
Companies and their lawyers typically overreact, attempting to preserve everything, for example, in backup tapes. This just adds to expenses -- IT folks reuse backup tapes for a reason -- and make it harder to sift through terabytes of information.

The greatest cost comes during the review process. Even with new search technologies, information still has to be eye-balled to ensure it's what you're looking for. And there's a lot of it. Mass storage is cheap, and employees can spread information among themselves and scatter it on servers, laptops, PDAs and smartphones, removable storage devices and home computers. Restoring data from backups and imaging files, and cleaning up metadata and OCR to produce documents in their final form for lawyers is costly.

Anticipate that the e-discovery process will cost about $1,000 per gigabyte. This is a fact of life, but you can control the cost, Benson said, by taking steps to identify data, lowering the volume to make it easy to secure and review when you need it, and centralizing storage.

Benson recommends fully documented and well enforced policies and procedures for handling and backing up data. There should be an established litigation response plan, including a formal litigation response team prepared to move into action as soon as the company sniffs the possibility of litigation.

That last point is important. Sometimes a company doesn't see a suit coming until it is served. But there's often much more lead time. You can anticipate possible litigation when there's a data breach or employee termination, for example. The sooner you move the better -- you have to take steps to preserve what's likely to be applicable data immediately. Your at the point when the lawyers, IT managers and other groups who might be involved need to decide what needs to be preserved -- from backup tapes to, possibly, an image of an employee's hard drive -- to avoid tampering.

"This is the most critical time to avoid sanctions and to avoid getting in trouble down the road with counsel and courts around preservation of data," Benson said.

Anticipation is key, he said. FRCP rules require the two sides in litigation to meet and discuss issues surrounding producing electronic information within 99 days of the start of litigation. That's not much time.

Be aware of e-discovery security issues, Benson warned. You're giving your data over to third parties -- your e-discovery processing vendor, your law firm, your opponent's law firm and its processing vendor. They all may be hacker targets, and it's a good bet security's not high on their priorities. There are a lot of new e-discovery vendors out there, Benson warned, vet both them carefully and take steps to make sure your law firm has solid data security policies and practices.
There's good news ahead, though, as technology gets better, and, we hope, companies get more savvy about dealing with electronic data.

"Technology will, over time, change the way legal system works," Benson said. "But that will only happen if there is good, meaningful communication between legal and IT communities. Through that communication, we'll drive the cost of litigation down. That's not necessarily a good thing for law firms, but it's certainly a good thing for corporations."

FRCP Rule 26(f) Checklist

2008-08-07T08:32:00.000-07:00

As more and more litigation professional begin to develop litigation best practices based upon the the changes to the Federal Rules of Civil Procedure (FRCP) enacted in 2006, industry standard checklists for the Meet and Confer Conference as required by Rule 26(f) are starting to emerge.

Over the past 18 months as I have been involved in discussions with litigators and the general council from global 1000 enterprises, I have come to the conclusion that the Meet in Confer Conference is for all practical purposes a mini trial that can enable the well prepared council to positively effect the eventual outcome of the trial. As such, I have developed the following checklist of items that should be considered in the pre Meet and Confer strategy and planning sessions:

What are the issues in the case?
Who are the key players in the case?
Who are the persons most knowledgeable about ESI systems?
What events and intervals are relevant?
When did preservation duties and privileges attach?
What data are at greatest risk of alteration or destruction?
Are systems slated for replacement or disposal?
What steps have been or will be taken to preserve ESI?
What third parties hold information that must be preserved, and who will notify them?
What data require forensically sound preservation?
Are there unique chain-of-custody needs to be met?
What metadata are relevant, and how will it be preserved, extracted and produced?
What are the data retention policies and practices?
What are the backup practices, and what tape archives exist?
Are there legacy systems to be addressed?
How will the parties handle voice mail, instant messaging and other challenging ESI?
Is there a preservation duty going forward, and how will it be met?
Is a preservation or protective order needed?
What e-mail applications are used currently and in the relevant past?
Are personal e-mail accounts and computer systems involved?
What principal applications are used in the business, now and in the past?
What electronic formats are common, and in what anticipated volumes?
Is there a document or messaging archival system?
What relevant databases exist?
Will paper documents be scanned, and if so, at what resolution and with what OCR and Metadata?
What search techniques will be used to identify responsive or privileged ESI?
If keyword searching is contemplated, can the parties agree on keywords?
Can supplementary keyword searches be pursued?
How will the contents of databases be discovered? Queries? Export? Copies? Access?
How will de-duplication be handled, and will data be re-populated for production?
What forms of production are offered or sought?
Will single- or multipage .tiffs, PDFs or other image formats be produced?
Will load files accompany document images, and how will they be populated?
How will the parties approach file naming, unique identification and Bates numbering?
Will there be a need for native file production? Quasi-native production?
On what media will ESI be delivered? Optical disks? External drives? FTP?
How will we handle inadvertent production of privileged ESI?
How will we protect trade secrets and other confidential information in the ESI?
Do regulatory prohibitions on disclosure, foreign privacy laws or export restrictions apply?
How do we resolve questions about printouts before their use in deposition or at trial?
How will we handle authentication of native ESI used in deposition or trial?
What ESI will be claimed as not reasonably accessible, and on what bases?
Who will serve as liaisons or coordinators for each side on ESI issues?
Will technical assistants be permitted to communicate directly?
Is there a need for an eDiscovery special master?
Can any costs be shared or shifted by agreement?
Can cost savings be realized using shared vendors, repositories or neutral experts?
How much time is required to identify, collect, process, review, redact and produce ESI?
How can production be structured to accommodate depositions and deadlines?
When is the next Rule 26(f)conference?