Ediscovery Trends

According to a survey released by Symantec, email is no longer the primary source of ediscovery responses.  While email can provide important communications and contextual information, loose files (such as Microsoft Office documents) and database files are being produced on an increasingly regular basis.  The inclusion of databases in particular indicates that more and more litigation could be focused on theft of intellectual property – when a disgruntled employee leaves one company for another, customer databases are a ripe target for theft.  Of course, confidential and proprietary documents are also high on the list, so look for companies to become even more litigious as their IP is increasingly at risk.

There are a couple of interesting developments in the case brought by Sony against George Hotz, one of the hackers who helped jailbreak the Playstation 3.

The first development is that a judge has allowed a subpoena to be issued to Geohot’s webhost, revealing the IP addresses of anyone who has visited Geohot’s website (Geohot is the online pseudonym for George Hotz – I’m sure you can figure out it’s origins) since January 2009.   In addition, subpoenas have been issued to YouTube and Twitter for information relating to George Hotz on those sites as well.

The latest development is that now George Hotz’s Paypal records can also be accessed, as Sony will attempt to use this information to show that California has jurisdiction in this case, rather than New Jersey, where Hotz resides.

What do you think?  Is the magistrate judge in this case overstepping his bounds, or does Sony have a right to dig up all the dirt they can on this hacker?

It’s a bit late for a LegalTech recap, but better late than never, right?

Gabe Acevedo was covering LegalTech for the great Above the Law blog.  While that blog doesn’t usually focus specifically on ediscovery issues, this year they brought in an ediscovery pro to cover the event.  I’m not surprised that people like to tout the benefits of “the cloud” but back off when pressed for details.  There’s still the impression that the use of tech buzzwords will automatically translate to success in the legal field, which is obviously not the case.  In my opinion, there are still opportunities for the right technology team to come up with a great ediscovery product that is useful,  secure and “buzzword compliant.”

The other big thing this year is the emergence of predictive coding.  While this technology has been around for awhile, it’s finally matured enough to be intergrated into some ediscovery products.  I’ll have  a roundup of litigation support products that implement predictive coding in a future blog post.

When it comes to choosing litigation support software, there are a few options out there.  You need to assess what data you have (or could request via discovery), how you are going to analyze that data, and how you are going to leverage that data to better help your client.

There is no one-size-fits-all solution for litigation software, and you have to make some important decisions when selecting an appropriate platform.  First, how much data will you be receiving and in what format will it be in?  If the only responsive documents are some emails, what format will they be provided to you in?  Can you just open and review the files through a native application on your computer?  If so, great!  But if some responsive documents are part of a complex specialized software package (for example, AutoCAD files), will you be able to review them properly?  You may need a litigation support vendor to convert those files to TIFF for you.

Better yet, have those special files reviewed by an expert – converting documents to TIFF can eliminate the actual value of a file.  Think of what you use a spreadsheet for – you can have formulas in certain rows and columns, you can sort columns by any number of criteria, etc.  Now, if someone took away your computer and replaced it with a printout of that spreadsheet, try getting some work done!  That’s what happens when a heavy-handed solution is used where some precision is required.

Another thing to consider with your litigation support software is how many people will be using it to code?  Factor in the cost of actually training people on how to properly use the software.  Too may times we have had to deal with users who only bothered to learn enough to get by, but when a deadline comes up, they need to know how to perform complex searches, bates number documents, endorse documents, and get them to the court by 5:00 P.M.!  Often, after the deadline has passed, that same user will come back and say “boy if I had known what this software could do earlier, I wouldn’t have needed to rush.”

So with ediscovery software, there are many factors to consider.  Anyone who flat out tells you that XYZ platform is “the best” probably has limited experience with other platforms.  Each has its use and purpose, but of course, we all have our own preferences!

Ralph Losey has made an ediscovery training course available online.  According to the site, the bulk of the coursework will take 50 to 150 hours to complete.  Sure, you only get the first 15 modules for free (there are sixty modules total).  But registration for this course is free (it’s called Basic Registration), so at least you can take it out for a test-drive and if  it’s not up your alley, you won’t be forced to continue down that path.  Registration is open to everyone, so I’m probably going to take a look at this and see what’s inside.  It’s not everyday you get free ediscovery training – here’s a list of the modules from the syllabus.

According to Gabe’s Guide to Ediscovery, the job market for ediscovery professionals is about to heat up.  Does this mean I need to demand a raise or look for a new job?

I wonder how the candidates are going to differentiate themselves from one another – experience is important, but so is the ability to use the right tools for the job.  Legal services and litigation support vendors will be able to leverage this ediscovery surge into more lucrative contracts that have dried up over the past couple of years.

If the rise in work for ediscovery professionals continues, this may also lead to some traction on ediscovery certification efforts.  Considering the relative size and projected growth of the industry, it’s as good a time as any to start some sort of standardization for professionals.  Right now there are many diverse skill sets that ediscovery professionals have, but in order to move upward (or even laterally) within the industry there needs to be some sort of quality control over the workforce.

Recently, a team over at CBS News uncovered a new potential security hole at many corporations – the digital copier.  Essentially, they purchased several copiers used, then managed to “scrape” documents off of each of the copiers hard drives, exposing sensitive documents previously thought to be deleted.  The question then becomes, what needs to happen to a modern printer in the event of a legal hold?

I don’t think that documents that require special software to extract should be produced during discovery.  During the normal course of business, these documents were copied or scanned and should reside in other, more accessible places.  Of course, this all changes if it turns out that a party is acting in bad faith.

I would also not be surprised if, as one result of increased ediscovery productions, companies started looking toward “dumb” technology in order to better serve their needs.  Attorneys still communicate with experts over the phone because electronic correspondence is discoverable in some circumstances.  Similarly, companies might decide that the added features of these new fancy copiers aren’t worth the bother if they’re just creating more headache (and expense) for the legal team.

Just ran across this case which took place earlier this year.  The Eighth Circuit court declined to enforce sanctions against the City of St. Paul for failure to enforce a legal hold.  If you read further, you’ll discover that one reason the court did not act on this is that plaintiff’s counsel did not properly brief the court on this issue, and did not show any evidence that defendants acted in bad faith.

Quote:

In short, the district court (first the magistrate judge and as affirmed by the district court judge) held that spoliation sanctions for the failure to implement a litigation hold were not warranted. The Eighth Circuit affirmed using an abuse of discretion standard of review. In other words, did the lower court’s opinion deviate from applicable law in an arbitrary or unreasonable way. The Eighth Circuit held that the record failed to establish prejudice to the plaintiffs or an intentional destruction of evidence or withholding of evidence in an attempt to suppress the truth. For anyone keeping score on litigation hold decisions, this is very helpful to an organization that accidentally loses or destroys electronically stored evidence – with or without a legal hold in place.

Early Case Assessment is becoming an important part of the ediscovery landscape.  Those who have thorough ECA practices will often see an increase in ROI on cases as analytics tools become more robust.  Proper ECA practices allow a law firm to plan strategically for litigation, in addition to reducing overall ediscovery costs.  While ECA is not a money-saving silver bullet in every case, there are steps your law firm can take to reduce overall cost while improving the quality of output.

The first step is often to identify the key players in the pending litigation.  This is where you’re going to want to question key witnesses and construct an organizational chart of parties that may be involved.  With this data, you can better evaluate whether this litigation is going to be quick, or if you may need to dig in for a protracted battle.

At this stage, you now have enough information to issue litigation holds for key custodians and be able to determine the potential scope of ediscovery.  Server shares, mail accounts, document management software, and backup tapes should all be evaluated for litigation responsiveness.

There are further steps, of course, but at this point you should have a grasp of the amount of data that could potentially be involved in this litigation.  Additional steps will depend on the amount of data you have identified and collected, but you will likely want to load this into a document review platform (if the data set is small and is ready for attorney review) or into a tool with more robust features such as Clearwell or EMC’s Kazeon.

Early Case Assessment is an important tool for reducing overall cost and better preparing you for litigation.  The longer you ignore tools and processes like this, the faster you will fall behind the ediscovery curve.

Fulbright & Jaworski have released their 7th Annual Litigation Trends Survey.  EDD Update has a few of the highlights, including the result that regulation compliance is becoming a chief area of concern for survey respondents.

I also noticed that there are a high number of respondents that believe the Federal Rules of Civil Procedure should be pared down to limit the scope of electronic discovery in civil cases.  I have to generally agree, but I wonder what type of data should be off-limits for ediscovery?  If anything, I would like tape backups or other media that is not used during the normal course of business to be discoverable only if data was found to be intentionally or maliciously deleted.

Of course, I’m still somewhat surprised that more firms aren’t employing social media to their advantage, but then again, I wonder how much of an advantage can be really be had in this industry.  For example, the exposure/usage of a Facebook group is probably minimal for a law firm, but that’s no reason to avoid having a simple blog on your website.  I wouldn’t be surprised to see some ambitious junior associates willing to write a few paragraphs every month on interesting legal topics, and it offers a stage for impressing senior partners.

Even one of the biggest names in data storage cannot escape a costly mistake when it comes to eDiscovery.

SanDisk was requested by opposing counsel to produce the hard disk images that were used by two former employees.  No problem, right?  SanDisk had already put away the laptops temporarily (in compliance with a legal hold), but decided they would like to use the laptops again, so they moved the former employees’ images to their servers.

Then, of course, they lost the data.

In the end, SanDisk was sanctioned not because they couldn’t find what they were looking for, and not because of the process they used to recover the data (they took it from a tape backup), but because they had not been forthcoming about what really happened to the data.  Because of this, plaintiffs endured a longer delay than was originally anticipated, hence the need for the ediscovery sanctions.

Last time, we discussed some trends in the ediscovery market.  One trend we’re seeing within organizations is an increased focus on information management.

This information management focus comes from a perfect storm of problems that companies are facing right now.  Regulatory compliance is at the forefront of most technology-related decisions, but other factors play a role in deciding how to get a grip on how information flows within an organization.

One important aspect that any information management system must account for is the ability to create a legal hold.  When an employee or company may the subject of litigation, it is important that documents are properly preserved to avoid evidence spoliation.  Having a single appliance that can defensibly handle this task would be of great benefit to any company.  Most solutions we are seeing deployed now are much more patchwork, as companies also worry about things like DLP (data loss prevention) and the security of proprietary information.

A few weeks ago, the annual Socha-Gelbmann Electronic Discovery Survey was released, highlighting several trends in the ediscovery market.

First, let’s start with market size: it appears that the overall ediscovery market grew in 2009, up 10% from 2008.  This is modest growth in good years, but in these lean times it shows that law firms have found value and are actually saving money by using ediscovery services.  Expect to see beat-the-market growth from the vendors who do the best job of culling document sets down, leading to less attorney document review work.

However, another recent trend may be pushing documents out of the hands of ediscovery vendors.  Targeted collection and preservation has made some of these document culling tools less useful, as attorneys gain experience in requesting specific documents during litigation.  The usefulness of the blanket “all documents relating to XYZ” request is outweighed by the cost of culling those documents down and then reviewing them.  This will be especially true as the data deluge continues, with ediscovery document sources becoming more numerous with no end in sight.

This is good news for many law firms engaged in litigation.  Instead of paying contract attorneys to review large swaths of varied documents, you can have those lawyers (and your experts) focus on a smaller set of documents, reducing cost.

Next post (later this week!) we’ll include some information on how the 2010 Socha-Gelbmann Electronic Discovery Survey relates to information management, and we’ll discuss a few other trends that we expect to continue in 2010 in the ediscovery market.

Clearwell has taken the lead in the mobile ediscovery market with their new product, iClearwell.  It’s a mobile app for the iPhone and iPad which allows end users to quickly get information about cases and Clearwell appliances.

Clearwell is taking advantage of the law firms who have slowly been migrating to the iPhone as their preferred mobile platform.  While the once-ubiquitous Blackberry continues to be a major player for many reasons (IT support and familiarity being important, not to mention a keyboard with tactile response), development and visibility for iPhone apps remains a distinct advantage for Apple.

Time will tell if this means that Clearwell is likely to develop for that other important mobile OS, Android.  I think Android has a bright future, but the full computing power of the OS has yet to be harnessed in the corporate world.

This new app is also a great marketing tool for Clearwell – it shows that they are responsive to the market, and makes Clearwell data easy to manipulate, display, and ultimately show off to clients.  CW’s web interface looks nice and everything, but this gives a legitimate reason to show off your new iPad!

Quick news on the ediscovery front – AccessData and CT Summation are going to merge.  Summation iBlaze is one of the more popular document review platforms around, loved and despised by many litigation support professionals – it all depends on who you talk to and what coast you’re on.  CT Summation has other tools as well, such as CaseVault and Discovery Cracker.

AccessData has typically been more focused on the data collection side of the EDRM model.  Their core business is focused on computer forensics and cyber security, but this acquisition allows them to expand a bit more into the ediscovery realm.  It will be interesting to see how they integrate their Forensic Toolkit (FTK) and incident response software into CT Summation’s review and processing platforms.

Interesting article in the New York Times about the modern use of cell phones.  Well, it’s not so much that they’re phones, but more that they’re devices for sending and receiving data.  Increasingly, people are using their cell phones in a manner we have typically associated with computers – checking Twitter, Facebook, email, etc. Those who work on the collection side of the ediscovery realm need to come up with a way to collect this data and present it so that it can be either manually reviewed or loaded into a document review platform.

This is a bit of a new challenge – while most companies think about the challenge of culling large data sets (email archives, for example), a new emphasis will also need to be placed on the collection of small amounts of data from disperate and uncontrollable environments.  Company XYZ may be able to cull and produce responsive documents within their possession, but who is responsible for the collection of relevant information that may be posted to Facebook?  What if that information is set to “private” – is it discoverable, and how do you go about collecting it?

Just some ediscovery food for thought…

I had no idea about this company until I saw this blog post on Logik and their cool Ediscovery marketing swag.  I mean really – they teamed up with a winery to make a red wine called “Redaction” – too cute.  They’ve even taken things a step further and added an ASAP Ale to their collection of alcohol-related merchandise.

It’s not exactly a surprise that CompTIA is expecting more companies to use ediscovery software in the coming years.  CompTIA is on top of this “story” largely because they’re one of the top IT certification companies in the USA.

Many companies are what I call “semi-prepared” for ediscovery work – the tools may be in place but they’ve never all been under the same ediscovery umbrella.  For example, informal internal investigations may be launched if an employee is suspected of embezzlement or theft of IP, but that may result only in the termination of the employee and not in any criminal charges (depending on the severity of the crime, of course).  IT workers may know how to capture packets across the network, but may not follow a certain set of steps that make the process transparent and able to hold up in court.

CompTIA is in a very good position to create and manage an eDiscovery certification shortly.  They released a paper called “Ediscovery Trends and Practices” at the end of 2009, which at the least demonstrates that they recognize the eDiscovery market as a growing market worth paying attention to.  I’d be curious as to see what the requirements are if CompTIA is going to offer a certification – there are quite a few separate and important tasks that could all be classified as ediscovery (data collection, document review, computer forensics, etc.), but I would hope it wouldn’t just be a generic “Ediscovery project manager” type of cert.  I’d personally want the cert to be a bit more technical and to demonstrate a thorough understanding of all necessary steps.

Of course, this is all under the assumption that CompTIA is going to offer Ediscovery certification, and they may never even do that – just speculation on my part!

We’re going back to basics here with some definitions, since it’s not always clear what is meant by a legal hold (aka litigation hold).  Basically, if your company’s legal counsel thinks that you will be subject to litigation soon, they will issue a legal hold, which means that you are required to preserve certain documents and records (as opposed to destroying them after they are no longer needed).  For electronic discovery, this often means that tape backups should be preserved rather than re-used, and that any electronic documents should be saved in their current state, almost as if encased in amber like a mosquito in Jurassic Park.

After all potentially responsive documents are preserved, then any documents that are not relevant to the litigation may be discarded.  This is called culling, and can be done with a number of litigation support software packages.  Most of these document review platforms come with some kind of search functionality, so you can reduce the number of documents quickly by only find docs authored by a certain person, or within a certain date range.

Finally, until the litigation has been resolved, the litigation hold is ongoing, so any documents that are produced that relate to or reference the litigation may be discoverable.  In addition, if any data is found to have been deleted or otherwise altered, sanctions may be imposed on legal counsel for a failure to properly issue a legal hold.