PI Newswire

The buzz around the eDiscovery of social media continues unabated in 2012, and for good reason. I challenged the team here at X1 Discovery to identify a numerical “2012 top trends in eDiscovery” list such as this one that did not include social media. Overall we identified 12 such projection lists from established vendors. This post from The eDiscovery Daily blog has a good compilation and links to 10 of those 12. We identified only one list (from Applied Discovery) that did not mention social media at all as a key trend for 2012 (we didn’t count CaseCentral’s 2012 entry as they wisely foretold the rise of social media eDiscovery a year earlier in their 2011 predictions list).

In addition to these lists of prognostication, which are fun reads, attorneys, consultants and other scribes generated a wealth of content in 2011 on social media and eDiscovery. It seems most of the discussion emphasized the need for corporate social media policies, procedures and readiness plans. Those are important first steps, but what we have sought to achieve on this blog is to outline actual solutions in terms of technical, legal and investigation techniques. For example, we identified over 20 various metadata fields unique to Facebook items and a similar set for Twitter. We instructed how to properly follow jurors and witnesses on Twitter without generating indirect communications that would violate attorney ethics rules. And we analyzed up to date case law concerning social media evidence.

But policies and procedures are important and for that we recommend compliancebuilding.com published by attorney Doug Cornelius. This site has an excellent and comprehensive collection of social media policies from a variety of industries, types of companies (public or private), industry and approach to social media (proactive, prohibitive or neutral). There are well over 200 example policies and forms from many Fortune 500 companies, law firms and non-profit organizations, including the Association of Corporate Counsel.

As far as our approach, in 2012 will continue to report on key case law and other legal developments regarding the cloud and social media. In the next few weeks, look for more metadata analysis, case law and the intricacies of public Facebook search. Thank you for supporting this blog in 2011 — more great things are to come in 2012!

View source…

Although technology has improved and continues to push forward, companies continue to struggle with the fact that the amount of electronic information to be managed is expanding rapidly.

As a result, BusinessComputingWorld’s Kurt Jensen recently suggested that several e-discovery trends – including the reevaluation of pricing models – will take place in 2012 in response to this data growth.

“The use of master databases and purpose-built repositories are expected to emerge as a model for streamlining the process and cutting costs in various litigation and regulatory matters,” wrote Jensen.

Also, the continued use of social media websites like Facebook and Twitter will continue to make discovery difficult, especially when messages from this medium are called into litigation cases, according to the reporter.

Judges will also identify the expectations surrounding e-discovery in 2012 to make sure best practices are achieved during the legal process, Jensen added.

Strapped with tight budgets and limited storage capacity, some businesses may be overwhelmed by the amount of electronic information they must manage. Cloud-based email archiving solutions store all email, social media posts, instant messages, documents, attachments and other files in an online repository so companies can easily locate this data during litigation.

View source…

Sampling for quality is not a new concept. Many industries have been doing it for years, and it is a core component of popular process improvement programs such as Six Sigma and Lean. Within the legal industry, however, sampling has not received significant attention until recently. While the topic is much too large to cover comprehensively within this blog post, there are a number of high-level thoughts to consider.

According to numerous reports, the volume of data stored worldwide by corporations continues to grow at a significant rate. We now talk about data volumes in terms of exabytes (1 exabyte = 1 billion gigabytes). Storage has become relatively inexpensive and corporations increasingly fear sanctions for preservation failure, and so the trend is to continue to store. Litigation budgets, on the other hand, are not increasing – certainly not at the rate that stored data volumes are increasing. While prices associated with data processing, review and production have dropped recently, those reductions can only go so far. New technologies and improved processes must be adopted in order to adequately manage the discovery process going forward. While there have been improvements, it wasn’t so long ago that we were seeing an average production rate of 5% of the collected data volume. Finding a way to more effectively dispose of the remaining 95% of non-responsive data is the current focus of many organizations. After all, the use of the produced items does not end with a production deadline.

Data sampling is one process that can provide significant enhancements in review velocity and quality control, resulting in lowered costs. There are certainly different levels of sampling and different points at which it can be utilized. While there is justifiable concern about removing items from the eyes of reviewers, sampling can be used for so much more:

Search term testing – By checking a sample of search term hits and non-hits, you can test the effectiveness of your search terms. In best case scenarios, attorneys can review these samples prior to a 26(f) conference and come prepared with actual results.

Read more…

The worldwide electronic discovery market saw revenue of $889 million in 2009 and will reach $1.5 billion in 2013, technology research firm Gartner predicted this month.

Upcoming trends in vendor consolidation, industry standards, and a focus on data integration will all be signs of a maturing and increasingly mainstream market, Gartner analysts John Bace and Debra Logan said in their May 13 report, “Magic Quadrant for E-Discovery Software.”

The analysts see five leaders in e-discovery: Autonomy, Clearwell Systems, FTI Technology, Guidance Software and kCura. Autonomy and Clearwell both expanded further last week, with the former buying much of archiving specialist Iron Mountain’s product lineup on Monday for $380 million and the latter being acquired by data management giant Symantec on Thursday for $390 million.

A quarter of all e-discovery companies will be consolidated by 2014, Bace and Logan said, and mainstream IT companies are expected to get involved. “We’ve had interest from [Hewlett-Packard], as they’ve announced information governance at least,” via a partnership with Clearwell established in January 2008, Logan said. “Will Oracle do something? And certainly anyone who sells storage will have to do something with this,” along with Microsoft which already has email archiving technology, she said.

Bace and Logan also said customers should pay attention to challengers EMC, IBM, and Nuix. (They also put Symantec in the challengers category, but its situation may change because of the Clearwell deal, and a new report about that is being prepared, they said.

Read more…

Last week I listened to an episode of Digital Detectives, a great series of podcasts co-hosted by Sharon Nelson and John Simek of Sensei Enterprises, Inc., who spoke at length with attorney and e-Discovery expert Josh Gilliland, author of the noted Bow Tie Law blog.

The topic was straightforward:

What are the five hottest topics in e-Discovery today?

1. Form of Production

Federal Rule of Civil Procedure 26(f) mandates that parties “meet and confer” in a meaningful manner. Meeting and conferring is extraordinarily important in cases involving e-Discovery and should never be a one-time event, according to Gilliland. One of the central points of procedural discussion with respect to electronically stored information is the form in which ESI is to be produced. Gilliland warns against requesting all metadata lest an attorney be faced with documents with unlimited fields. Cooperation, open communication, and transparency should take the place of gamesmanship, which also means agreeing up front that the parties won’t engage in sanctionable behavior such as producing unsearchable, unusable documents, e.g., static images or others stripped of metadata. Where native file production is expected, the parties should discuss the cost of producing and reviewing any given volume of relevant documents.

Read more…

Tianna Walker’s been uploading pictures to Twitter for nearly two years. All of her friends can instantly access every picture posted from her Android phone or from her home computer.

“If I see something crazy going on in the car next to me, I’ll definitely take a picture of it so that my friends can have a laugh,” she told 24 Hour News 8.

Kelli Meyers, aka MoonLoon78, doesn’t want her friends and family to miss a second, so she uploads pictures of her child and other things from her Blackberry.

“It’s just a lot of fun,” she said.

Daniel Estrada is an electronic discovery consultant. His company, DC Estrada, legally pulls information from photos for a living, information the photographer may not even know is there.

Read more…

US litigation support services provider and consultancy BlueStar Case Solutions has launched EDD Toolkit, a free e-discovery application (app) for smartphones.

The app features a Cost Estimator, Time Estimator, Conversion Table and Glossary for common e-discovery questions with regards to ESI (electronically stored information) processing, document review and production.

The app is designed for lawyers, paralegals, in-house counsel and litigation support staff who quickly need answers about a particular e-discovery project.

The EDD Toolkit provides reference resources and quickly estimates how much e-discovery may cost and how long the process may take, allong with a glossary of terms and a data-to-documents or pages conversion calculator.

The Time Estimator will estimate how long the ESI processing and review steps may take in litigation

Read more…

In the beginning, there was Zubulake.

OK, maybe that’s an overstatement, but it is no overstatement to say that most civil litigators were introduced to the world of e-discovery through the series of opinions leading up to the final decision in Zubulake v. UBS Warburg, a 2004 case out of the U.S. District Court for the Southern District of New York. The other notorious case that woke up litigators to the issues involving e-discovery was Morgan Stanley & Co. v. Coleman (Parent) Holdings, a 2004 case that went before Florida’s 4th District Court of Appeals.

In both matters, the defendants’ gross deficiencies in preserving and producing e-discovery led the courts to find that spoliation, i.e. the destruction of evidence, had occurred. The courts provided remedies in the form of monetary sanctions, as well as adverse inference instructions to the jury that they must infer from defendants’ failure to produce discovery that such discovery would have supported the plaintiffs’ version of events. Those cases made familiar those and other terms now often used and generally associated with e-discovery matters.

Both cases also provided the parties with the roles we associate with e-discovery litigation: The plaintiff demands e-discovery while the defendant produces it.

Zubulake, in particular, provided the most familiar scenario in e-discovery litigation, in which the “David” plaintiff seeks smoking-gun e-mails from the “Goliath” defendant.

And the position taken by the civil defense bar confirms the reality that, in most cases, plaintiffs seek e-discovery while defendants produce it.

Two recent cases, however, challenge that stereotype.

In a January 2010 ruling from the U.S. District Court for the Southern District of New York, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, Judge Shira Scheindlin, who authored the Zubulake decisions, imposed sanctions upon plaintiffs for failure to preserve and search e-discovery.

That case has been discussed by many in the e-discovery community, including me in The Legal Intelligencer in April (“Assigning Value to E-Discovery’s Unknown” and “The Last Words on E-Discovery?).”

Read more…

In the beginning, there was Zubulake.

OK, maybe that’s an overstatement, but it is no overstatement to say that most civil litigators were introduced to the world of e-discovery through the series of opinions leading up to the final decision in Zubulake v. UBS Warburg, a 2004 case out of the U.S. District Court for the Southern District of New York. The other notorious case that woke up litigators to the issues involving e-discovery was Morgan Stanley & Co. v. Coleman (Parent) Holdings, a 2004 case that went before Florida’s 4th District Court of Appeals.

In both matters, the defendants’ gross deficiencies in preserving and producing e-discovery led the courts to find that spoliation, i.e. the destruction of evidence, had occurred. The courts provided remedies in the form of monetary sanctions, as well as adverse inference instructions to the jury that they must infer from defendants’ failure to produce discovery that such discovery would have supported the plaintiffs’ version of events. Those cases made familiar those and other terms now often used and generally associated with e-discovery matters.

Both cases also provided the parties with the roles we associate with e-discovery litigation: The plaintiff demands e-discovery while the defendant produces it.

Zubulake, in particular, provided the most familiar scenario in e-discovery litigation, in which the “David” plaintiff seeks smoking-gun e-mails from the “Goliath” defendant.

And the position taken by the civil defense bar confirms the reality that, in most cases, plaintiffs seek e-discovery while defendants produce it.

Two recent cases, however, challenge that stereotype.

In a January 2010 ruling from the U.S. District Court for the Southern District of New York, Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, Judge Shira Scheindlin, who authored the Zubulake decisions, imposed sanctions upon plaintiffs for failure to preserve and search e-discovery.

That case has been discussed by many in the e-discovery community, including me in The Legal Intelligencer in April (“Assigning Value to E-Discovery’s Unknown” and “The Last Words on E-Discovery?).”

More recently, in a June U.S. District Court for the District of Colorado, Medcorp Inc. v. Pinpoint Technologies Inc., Magistrate Judge Kristen L. Mix, hearing an appeal from an order by a special discovery master, upheld sanctions against the plaintiff for what the court found to be “willful” destruction of hard drives on which relevant discovery resided. The court amended some of the relief ordered by the special master, but did not disturb the sanction of ordering that the plaintiff be subject to adverse inference instructions.

Pension Committee and Medcorp bring us to a point where plaintiffs are now facing the same sanctions with which they had threatened defendants in the wake of Zubulake and Morgan Stanley. What does this mean to the immediate future of civil litigation?

Read more…

IT and the early eDiscovery process are getting to be one hot item, sometimes to IT’s dismay. IT is – or soon will be – fielding data collection requests from lawyers panicked over the latest eDiscovery pronouncement from the judicial bench. But very few companies are adding eDiscovery specialists to the IT payroll, leaving existing staff to shoulder more of the burden. Technology is critical in this area of early eDiscovery and IT is likely to administrate and use identification and collection products. Products that require careful vetting for purchase, deployment, usage and maintenance.

Before I talk about IT’s critical success factors (CSF) for eDiscovery purchases, let me define a few things. First, IT is being called on to partner with Legal over technology decisions up and down the eDiscovery line. Even when the purchases are primarily focused on Legal users, only IT can answer questions about computing systems, bandwidth, or data security concerns. This type of purchase tends to be a one-off for IT who acts in a consulting capacity.

However, some eDiscovery technologies directly impact IT. These are the products that support the early eDiscovery stages: identifying, collecting and preserving electronically stored information (ESI). This type of product operates close to home by directly accessing data sources across the storage infrastructure. IT may be an end user or the application administrator; increasingly both. Note that this type of product is not new. A number of vendors have done very well with identification and collection software for both Legal and IT. What has changed is the number of searches, huge volumes of data that must be searched, and the complexity of the storage infrastructure at almost every company.

This is why IT should have a methodology in place for reviewing and purchasing the eDiscovery technology that they will be supporting and using. The purchasing process should be done in concert with Legal, but IT should bring its own set of critical success factors to the table.

Read more…

When it comes to compliance, the regulations often dictate that an organization must demonstrate “Best Efforts” for archiving data.

However, the term “Best Efforts” is vague at best and can mean different things to different people. For regulators, “Best Efforts” has its roots in the ability to retrieve and audit data. For CTOs, it means a backup and archiving platform. For CFOs, it means the lowest cost solution that meets the minimum requirements.

Actually defining “Best Efforts” in a meaningful fashion is usually the task that IT managers responsible for compliance technology find themselves assigned.

Luckily, those IT managers can dissect the term “Best Efforts” to figure out an applicable definition by keeping one other technology term in mind – “e-Discovery.” The requirements behind e-Discovery make it easy to see that “Best Efforts” must go beyond merely storing relevant information. The e-Discovery process dictates that data must be archived securely in a protected fashion that supports auditing – the key word here being “auditing.”

So, for all intents and purposes, “Best Efforts” means much more than just archiving data, it also means the ability to retrieve the data in a relevant fashion – and that is where things start to get complicated.

Retrieving the data, especially if it is years old, often requires access to the applications that can report on the data. Old e-mail clients, accounting systems, and other relevant applications must be maintained, as well as the platforms that support those applications. That is a major challenge when one considers that audit windows can range from a few months to 20 years or more – depending on the type of data and the regulations that apply.

Read more…

Symantec has launched the latest version of its Enterprise Vault and Enterprise Vault Discovery Collector technology to help organisations store, manage and discover information across the enterprise.

It said that Enterprise Vault 9.0 provides compliance and e-discovery searches by combining emails from Microsoft Exchange Online with on-premise archived content sources into a central repository, to allow organisations to reduce costs, centrally manage e-discovery and support internal investigations.

The Enterprise Vault Discovery Collector technology helps organisations discover unmanaged information from desktops and laptops, as well as data that has not yet been archived from SharePoint Server and file shares, and produce it for e-discovery requests.

Brian Dye, vice president of product management at Symantec’s information management group, said: “Archiving is the foundation of a comprehensive information management strategy and allows organisations to delete confidently. Enterprise Vault 9.0 and the new Enterprise Vault Discovery Collector enable IT and legal departments to jointly develop and enforce retention policies, closing the gap between technology and policy to reduce risk.”

Read more…