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Podcast: Law School Students on E-Discovery With Judge Grimm  || ESIBytes

April 15, 2010 By Leave a Comment

This was a special ESIBytes program with Judge Paul Grimm, Magistrate Judge for the United States District Court of Maryland co-hosting this show with Karl Schieneman, Director of Analytics and Review at JurInnov. We interviewed 8 law students who have been taking electronic discovery courses at three different law schools: The University of Florida, The University of Texas and The University of Alabama. On a number of podcasts we have heard from E-Discovery analysts and participants, such as Judge Scheindlin and Ralph Losey, that law students perhaps represent the future saviors of the Electronic Discovery field. Well now we give a group of students who have been studying this topic in their law schools a chance to weigh in on the topic.

How practical is it for the profession to count on this next generation of lawyer to help the profession deal with ESI is one of the topics we will discuss. Also, how valuable is Electronic Discovery as a course offering at a law school will be discussed. You be the judge as we finally give law students a chance to weigh in on a special edition of ESIBytes. If you are interested in getting in touch with the law students or talking to them about employment opportunities, their contact information is below:

University of Florida Jared Beckerman – jbeckerman@ufl.edu Rob Davis – robert.davis.jr@gmail.com Andrew Roy – aroy@gmail.com University of Alabama Ryan Tyler – rltyler@gmail.com Justin Ladner – justin.ladner@law.ua.edu University of Texas Joshua Normand – joshuanormand@yahoo.com Lora Beth Turner – lora@mail.utexas.edu.    Also, a special thanks to Ralph Losey, Julie Grantham and Allison Skinner who recruited law students from their E-Discovery classes to make this show possible.

via Law School Students on E-Discovery With Judge Grimm  || ESIBytes.

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Court Orders Monetary Sanctions for Production Delay Resulting from Counsel’s Failure to Become Familiar with Plaintiff’s Retention Policies and Systems : Electronic Discovery Law

April 14, 2010 By Leave a Comment
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In re A&M Fla. Props. II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010)

Where plaintiff’s counsel “failed in his obligation to locate and produce all relevant documents in a timely manner” by failing to gain a sufficient understanding of plaintiff’s computer systems resulting in significantly delayed production of relevant documents, the court declined to impose terminating sanctions or an adverse inference but ordered monetary sanctions against plaintiff and counsel in an amount to be determined.

Upon plaintiff’s production of requested discovery, defendant was surprised by the lack of internal emails produced.  Thereafter, plaintiff retained new counsel who, in an effort to settle the issue, ordered plaintiff to perform a “company-wide” search for responsive information.  The search was conducted under the direction of Deborah Garfinkle, plaintiff’s Chief Technology Officer.  Unfortunately, counsel was “uninformed on the detailed workings of [plaintiff’s] computer system and email retention policies.”  Specifically, counsel was unaware of the existence of archive folders to which employees regularly moved emails.  The archive folders were therefore not searched.

Eventually, defendant brought the lack of email production to the court’s attention.  The parties thereafter agreed to jointly retain a forensic expert to search plaintiff’s computer system.  Because plaintiff’s counsel remained unaware of the archive folders, the forensic search did not include them.  When certain emails were not found in the forensic search, defendant suspected intentional spoliation.

Responding to the accusation of spoliation, Garfinkle informed defendant’s counsel of the existence of archive folders.  Upon plaintiff’s own subsequent search of those folders, additional responsive emails were found.  Plaintiff argued that the situation could have been avoided had defendant included archives in its search request.  Defendant argued that plaintiff should have known to search the archives.  Both sides agreed to a second search by the forensic expert, including the archives.

Following the second forensic examination, plaintiff’s counsel’s “mistaken impression” regarding the methodology for production of the recovered ESI resulted in a two-month delay in the production of certain responsive emails to defendant.

via Court Orders Monetary Sanctions for Production Delay Resulting from Counsel’s Failure to Become Familiar with Plaintiff’s Retention Policies and Systems : Electronic Discovery Law.

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Most eDiscovery Costs Wasted on Extraneous Information. – BandL Weblog

April 13, 2010 By Leave a Comment

Most of the money spent on electronic discovery today is squandered on reviewing irrelevant documents, according to a white paper recently released by Forensics Consulting Solutions, of Phoenix, Ariz. According to the document authored by Mark G. Walker, Roland J. Bernier III and Barclay Blair, only about 10 percent of all Electronically Stored Information (ESI) collected has value for the purpose for which it was gathered. “Yet,” the authors stated, “investigators spend 80 percent of their time and the associated cost on the 90 percent that has no value.”

Organizations are spending millions of dollars finding, processing, reviewing, and producing digital information required in lawsuits, the paper said. It noted that one out of five organizations spends more than $10 million annually on litigation–and that doesn't include what's spent on settlements and judgment awards. That number is bound to grow, and with it the amount spent on e-discovery tools, which is expected to reach almost $5 billion by 2011. “It costs about 20 cents to buy 1GB of storage; however, it costs around $3500 to review that same GB of storage,” the paper revealed.

While the expense of ediscovery comes from a number of places, it noted, the most significant is the cost of finding, processing and reviewing information that has been unnecessarily retained.

One way to reduce the extraneous information in an organization's information universe is to have a solid Information Governance (IG) plan. “The proactive nature of IG means that unnecessary information is disposed of as soon as it is no longer needed and all legal requirements for its retention and preservation have been satisfied,” the paper explained.

“IG enables businesses to get rid of unnecessary information in a defensible manner,” it continued. “As such, it can reduce the amount of information that needs to be reviewed in the course of a legal matter.”

via Most eDiscovery Costs Wasted on Extraneous Information. – BandL Weblog.

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Court Orders Forensic Examination of Plaintiff’s Computers Absent Denial that “Responsive Emails May have Existed at One Point” : Electronic Discovery Law

April 5, 2010 By

Adhi v. Twp. of W. Pikeland, 2010 WL 1047894 (E.D. Pa. Mar. 16, 2010)

In this zoning dispute, defendant moved to enforce a prior order of the court and, essentially, compel more complete responses to discovery, including the production of electronically stored information (“ESI”), specifically emails.  Plaintiff indicated that even if responsive emails had existed, they were deleted in the ordinary course of business.  Accepting defendant’s assertions that “the mere deletion of an email does not make it lost forever”, however, the court ordered plaintiff to allow defendant’s “e-Discovery expert” to inspect plaintiff’s computers to determine if any responsive information was still contained on the hard drives or the servers.  In so ordering, the court reasoned that this would “allow Defendant to conduct discovery on information to which it is entitled without burdening Plaintiff with the expense of hiring a discovery expert.”

As summarized in the preceding paragraph, Defendant sought more complete and supplemental responses to discovery, including responses to interrogatories and requests for production. Defendant also sought sanctions for plaintiff’s alleged discovery shortcomings.  Regarding the requested interrogatory responses, the court granted the motion in part, and ordered some additional responses.  The court also ordered that plaintiff pay for defendant’s costs in bringing the motion.

via Court Orders Forensic Examination of Plaintiff’s Computers Absent Denial that “Responsive Emails May have Existed at One Point” : Electronic Discovery Law.

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Status Of E-Discovery Law: A Judicial Perspective On The Cur

April 5, 2010 By

The Editor reports on comments by Hon. Shira A. Scheindlin, United States District Judge, Southern District of New York during a webinar entitled Electronic Discovery Guidance 2009: What Corporate and Outside Counsel Need To Know presented by the Practising Law Institute. To purchase the complete webinar or only Judge Scheindlin’s segment visit http://www.pli.edu/product/clenow_detail.asp?id=47794&t=DAJ0_8MCC1 .

Judge Scheindlin wrote the influential Zubulake opinions (as well as, most recently, Pension Committee v. Banc of America. that remain persuasive authority throughout the country today. She was nominated to the bench by President Bill Clinton in 1994. Before taking her seat on the bench she worked as a prosecutor, a commercial lawyer and a special master and magistrate judge in the Eastern District of New York. She was a special master in the Agent Orange Mass Tort Litigation. She has presided over a number of high-profile cases, many of which advance important new positions in the common law. She is also an adjunct professor at Brooklyn Law School and a frequent lecturer on the subject of e-discovery.

Judge Scheindlin has been a member of the Judicial Conference of the United States Advisory Committee on the Federal Rules of Civil Procedure. She is also a member of the American Law Institute, where she is a member of the Advisors' Consultative Group on the Aggregate Litigation Project. She is a prolific author, including a recent case book entitled Electronic Discovery and Digital Evidence : Cases and Materials .

Judge Scheindlin began her one-hour segment of the webinar by mentioning that each time she speaks at this conference she initially considers providing a review of the most interesting cases involving ESI that have been issued during the past year. But as she reviews the cases, she quickly gives up on that idea because some topics leap out as requiring a more in-depth discussion than others. As a result, she always ends up choosing what she believes are the few topics that really deserve careful and full treatment and that this year she has selected three topics.

She began with the thorny issues raised by Federal Rule of Evidence 502, which she reviewed in some detail. Next, she discussed the duty to preserve and the adequacy of litigation holds. Her last topic was cloud computing. There is a thirst for knowledge about what cloud computing is and its potential effect on litigation issues, including cross-border discovery.

via Status Of E-Discovery Law: A Judicial Perspective On The Cur.

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Global EDD Group Implements Portable E-Discovery Solution

March 29, 2010 By

GLOBAL EDD GROUP IMPLEMENTS PORTABLE E-DISCOVERY SOLUTION
Expands Intelligent EDD℠ Services With Addition Of Portable Processing

Cleveland, Ohio (29 March 2010) – Global Electronic Discovery & Disclosure Group (“Global EDD Group”), a boutique consulting firm that provides innovative legal technology solutions across the globe, today announced the addition of Portable Processing to its Intelligent EDD℠ line of legal technology services. Developed to be utilized at virtually any location with dependable power and connectivity, Portable Processing enables Global EDD to provide a full suite of early case assessment and electronic discovery services at onsite and near site locations across the globe without the cost, time and headaches typically associated with the shipping of servers, workstations and monitors.

“We have worked closely with our technology partners to develop an innovative early case assessment and electronic discovery processing solution that is portable, scalable and cost effective,” stated Brad Mixner, Founder and Managing Principal of Global EDD Group. “This enhancement to our Intelligent EDD Services provides a significant advantage to our clients and alliance partners managing cases with tight deadlines, data privacy, intellectual property or related security concerns. Our mobile teams can be onsite and operational with short notice, with the ability to preserve, analyze, process and review data on the same day.”

The Intelligent EDD Portable Processing service combines industry standard software and purpose-built hardware within a modular system that can be easily transported with the mobile teams to virtually any location in the world within 48 hours. Key highlights of the service include:

  • Data Analytics and Dynamic Reporting
  • File Culling and Deduplication
  • Text, Metadata and Attachment Extraction
  • XML, TIFF, TXT and Native File Exports
  • First Pass Document Review
  • Language Identification

“In essence, it’s a mobile office. ESI processing, review and analysis all within the secure confines of the client’s office. Now, when a client asks if we process data in Asia, Europe, South America or Timbuktu, the answer is ‘Yes.’” noted Joseph Turner, Principal, Global EDD Group.

About Global EDD Group

Global Electronic Discovery & Disclosure Group (“Global EDD Group”) was founded by Mixner with the vision of bridging the wide gap between domestic organizations and their growing national and international legal technology needs. Global EDD Group provides legal technology services for matters with a national or international scope, specializing in remote and onsite services ranging from data identification to document review. Global EDD Group is based in Cleveland, Ohio, USA with regional offices in San Francisco and New York City. Additional information is available by visiting www.GlobalEDD.com.

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Guidelines for Discovery of Electronically Stored Information (ESI) | US District Court – Kansas

March 27, 2010 By
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Guidelines for Discovery of Electronically Stored Information (ESI)
These guidelines are intended to facilitate compliance with the provisions of
Fed. R. Civ. P. 16, 26, 33, 34, 37, and 45, as amended December 1, 2006 and
December 1, 2007, relating to the discovery of ESI. In the case of any asserted conflict between these guidelines and the above-referenced rules, the latter shall control.
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Tiger Woods, Facebook and ESI, oh my! « Lextek – Chicago Lawyer’s Tek Talk

March 27, 2010 By

Know When To Get Help

If you don’t know the difference between operating system metadata and internal metadata all three members of the panel advise you hire a trusted third-party to collect the data necessary for your case. John Simek, Vice President of Sensei Enterprises, Inc., added that if a small firm is attempting to cut corners on costly e-Discovery by simply asking the resident IT staff of the company you are investigating to properly extract ESI (electronically stored information) – don’t. In most cases an untrained e-Discovery IT person won’t understand the evidentiary impact of the data and won’t know how to best preserve the data. In the worse possible scenario the relevant data for your case won’t be collected and s/he might inadvertently damage or corrupt the data collected to the point where it won’t be admissible in court. United States District Court of Minnesota Judge James Rosenbaum said metadata is thought of as “the black box in the airplane…It is not sacrosanct. It can be changed.” And once it is changed, it can be ruled inadmissible.

Social Media and e-Discovery

Can you submit Facebook pages as evidence? Absolutely. Judge Rosenbaum cited the Rules of Evidence 801 d section specifically while giving his nod of approval to accepting social media comments, posts, and photos that appear on social networking sites like MySpace and Facebook as evidence in a case. Making questions like “Do you have a Facebook account?” and “Do you have a MySpace page” a regular practice during intake and monitoring the plaintiff’s and the defendant’s social networking accounts were strongly recommended by the panelists.  For lawyers looking for more e-Discovery evidence John Simek was happy to oblige, he said “Twitter has every single Tweet that was ever made” recorded.

ESI for everyone

United States Magistrate for the District Court in Kansas City Judge David Waxse repeatedly said that lawyers should make a reasonable attempt to become knowledgeable about their client’s ESI. He counseled lawyers to  “narrow down the issues in the case” as their first steps in the e-Discovery process, and cited a PDF with specific guidelines for dealing with discovery of electronically stored information.

via Tiger Woods, Facebook and ESI, oh my! « Lextek – Chicago Lawyer’s Tek Talk.

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Challenging ‘Manual’ ESI Collections | Law.com

March 25, 2010 By

Discovery of electronically stored information is now an integral part of civil litigation in federal courts. Although Fed. R. Civ. P. 26(b)(2)(B) and 34 address production of electronically stored information, they are silent on related procedures for searching and collecting ESI. For various business reasons, including burden and expense, some corporate litigants opt for more informal, “manual” collection methods (i.e., searches performed by individual records custodians, often without sophisticated data-collection software and hardware) when responding to ESI requests.

What happens when the requesting party challenges the results of a production based on manual collection methods or otherwise objects to the propriety of those methods? In Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009), the District of New Jersey analyzed whether manual collection methods (versus automated) are sufficiently reasonable to meet a party’s electronic discovery obligations. This article will address this evolving issue and the guidance provided by Ford and other relevant decisions.

Since the Federal Rules of Civil Procedure do not specify procedures for searching and collecting ESI, the Sedona Conference, a respected nonprofit research and educational institute that has provided substantial guidance on e-discovery best practices, has established some benchmarks. In June 2007, the Sedona Conference published the second edition of its seminal work, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production. The Sedona Principles elaborate on 14 principles intended to frame e-discovery best practices including ESI search and collection procedures. These now-essential guidelines were followed by the Best Practices Commentary on the Use of Search And Information Retrieval Methods In E-Discovery, which contains eight “practice points,” several recommendations and extensive discussion on the current state of search and retrieval methodologies and practice.

via Challenging ‘Manual’ ESI Collections.

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‘Sexting,’ Texting and EDD Before High Court | Law.com

March 24, 2010 By

While stories of “sexting” and cheating husbands are common fare in tabloid magazines, such salacious facts are a relative rarity in U.S. Supreme Court cases. It is equally unusual for the Supreme Court to issue opinions with the potential to touch upon aspects of electronic discovery. A perfect storm is brewing in the form of City of Ontario v. Quon, No. 08-1332, in which the Supreme Court will address a government employee’s expectation of privacy in text messages sent from his employer-issued device — including spicy text messages sent to his wife and alleged mistress. Although Quon involves a public employer, the Court’s ruling potentially could have far-reaching implications for workplace best practices in the private sector as well. In addition, Quon has the potential to extend its reach to other forms of electronic communication beyond text messages, including other types of “outlier” electronically stored information.

Text messages are just one form of outlier ESI, data that parties are more likely to overlook during the discovery process given that it may exist “out of sight” and/or “out of mind.” Common sources of outlier ESI include cellphones and personal digital assistants, voice mail systems, instant messaging systems, chat rooms and web sites. Few court decisions have addressed the preservation and production requirements of outlier ESI in litigation. Under certain circumstances, however, failure to preserve and produce outlier ESI has been held to constitute spoliation and resulted in sanctions such as an adverse inference.

via ‘Sexting,’ Texting and EDD Before High Court.

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