2nd December 2013

In case you hadn’t heard yet, there are changes coming to the Federal Rules of Civil Procedure (FRCP) and these rule changes will greatly impact eDiscovery. Even though the new rules have not been finalized yet, it is likely advisable for litigators to begin to incorporate these new principles into their practice now in order to avoid playing catch up later. Chief among these principles is proportionality (which of course is nothing new, but will certainly seem new to many of our colleagues in the bar who are less well versed in the philosophy of proportional discovery).

In a recent article in Litigation World, Matthew Gillis and Nadine Weiskopf make the argument that proportionality will become an increasingly important facet of eDiscovery and offer some practical advice on how to turn philosophy into action.  Among the coming changes that best reflects the spirit of proportionality, we will finally have a more limited scope of what is and is not discoverable (long-time critics of proportionality will often cite the current standard of “reasonably calculated to lead to the discovery of admissible evidence” was so tensile it could be stretched to fit just about any discovery request).  The main goal is to limit the information demanded and produced during discovery to that which is “proportional to the needs of the case.” This new limit will (can? should?) help to prevent litigators from using discovery as a weapon against opposition with limited resources. It also protects litigants from having to expose possibly damaging information that is not relevant to the case at hand.  However, as with all rules there is always the chance that judges and parties will differ in their understanding of the rules.  For instance, on its face it would seem the rule change would prevent legal teams from asking for five years’ worth of email if they only really need email from the last six months.  But what if the requesting party can persuade the judge that five years really is needed (by doing nothing more than making the type of argument that today could carry a motion to compel such information – after all, are judges going to instantly change their understanding of the purpose and process of discovery?).  Nonetheless, as a result of this amendment, litigators should start thinking now about how to better hone their eDiscovery requests to target the specific information they need.  In many ways it is sad to think we needed amendments to the Rules to cause this to happen – litigators should have always been thinking of ways to target the information they need, and they should have abandoned the out dated “you never know what you will find” mentality that has driven the costs of discovery over the edge.

As Gillis and Weiskopf astutely point out, a way to achieve results in a world of proportionality-based eDiscovery is to use early case assessment technology to plan ahead.  A main benefit of this technology is that it helps to identify relevant information as early as possible in the discovery process and could allow a responding party to more narrowly collect information subject to review (and thus, lowering processing costs which are still one of the major pain points when it comes to eDiscovery costs).  But a corollary advantage is that it helps to locate information that is either missing or detrimental to a case up front. Litigators can use this technology to quickly evaluate whether to pursue a case, settle a case, defend it, etc. In litigation, knowledge truly is power as the more information I have the more skillful I can act as an advocate by uncovering everything we need to know sooner rather than later during eDiscovery.  The day before the production is due to the other side is not the time to discover you have a problem – even if that is when many litigants who insist on using more primitive review processes  do learn they have a problem.

About the Author:

Drew Lewis is eDiscovery Counsel with Recommind.  In this role he consults with outside counsel and in house legal departments about effective discovery strategies and the benefits of implementing predictive coding solutions. Prior to joining Recommind, Drew worked as a commercial litigator with Baker Donelson out of the firm’s Nashville office.  Drew has handled all aspects of discovery in his representation of clients, and through his private practice developed a streamlined approach to discovery that was helpful to resolve litigation favorably while still keeping costs in alignment with the budget of the client.

Source: Recommind, Inc

The post The Importance of Proportionality in eDiscovery appeared first on International Finance.

21st November 2013

Dark data, otherwise known as unstructured, unmanaged, and categorized information is a major problem for many organisations (and many don’t even know it). Many organisations don’t have the will, systems or processes in place to automatically index and categorize their rapidly growing unstructured dark data and instead rely on employees to manually manage their own information. This reliance on employees is a no-win situation because employees have neither the incentive nor the time to actively manage their information so dark data continues to pile-up all over the organisation. This accumulation of dark data has several obvious problems associated with it:

• Dark data consumes costly storage space and resources – Most medium to large organisations provide terabytes of file share storage space for employees and departments to utilize. Employees drag and drop all kinds of work related files (and personal files like personal photos, MP3 music files, and personal communications) as well as PSTs and work station backup files. The vast majority of these files are unmanaged and are never looked at again by the employee or anyone else.
• Dark data consumes IT resources – Personnel are required to perform nightly backups, DR planning, and IT personnel to find or restore files employees could not find.
• Dark Data masks security risks – File shares act as “catch-alls” for employees. Sensitive company information regularly finds its way to these repositories. These file shares are almost never secure so sensitive information like personally identifiable information (PII), protected health information (PHI, and intellectual property can be inadvertently leaked.
• Dark data raises eDiscovery costs – Organisations find themselves trying to figure out what to do with huge amounts of dark data, particularly when they’re anticipating litigation. Almost everything is discoverable in litigation if it pertains to the case and reviewing GBs or TBs of dark data can push the cost of eDiscovery up substantially.

Dark Data…it’s a good thing?

Many organisations have begun to look at uncontrolled dark data growth and reason that, as Martha Stewart use to say….”it’s a good thing”. They believe they can run big data analytics on it and realize really interesting things that will help us market and sell better. This strategy misses the point of information governance, which is defined as;

a cross-departmental framework consisting of the policies, procedures and technologies designed to optimise the value of information while simultaneously managing the risks and controlling the associated costs, which requires the coordination of eDiscovery, records management and privacy/security disciplines.

Data has risks associated with it as well as cost beyond its daily cost of storage. Let’s consider the legal implications of dark data.

Dragging dark data out of the legal shadows

Almost everything is discoverable in litigation if it’s potentially relevant to the case. The fact that tens or hundreds of terabytes of unindexed and unmanaged content is sitting on file shares means that those terabytes of files might have relevant content so it may have to be reviewed to determine if they are relevant in a given legal case. That fact can add hundreds of thousands or millions of dollars of additional cost to a single eDiscovery request. For example, according to a CGOC survey in 2012, on the average 1% of data is subject to legal hold, 5% is subject to regulatory retention and 25% has some values to the business leaving 69% with no real legal, regulatory or business reason to be kept. So for a given 20 TB file share, on the average 1% or 200 GB is potentially relevant to a given eDiscovery request. 200 GB of content can conservatively hold 2 million pages that might have to be reviewed to determine relevancy to the case. These same 2 million pages of content would cost $1.5 million to review using standard manual review processes. The big question that has to be asked is how many of these 2 million pages were considered irrelevant to the business and should not have been kept? Considering the same 69% number from the survey mention above; 2 million docs * 69% = 1.38 million docs that should have been deleted and would never had to have been reviewed for the case.

Dark data equals higher discovery costs so make dark data visible so that you can find it, manage it, and act on it.

About the Author:

Nick is Recommind’s director of product marketing and product strategy. He leads a global team tasked with developing marketing strategy across Recommind’s products. Nick joined Recommind from The 451 Group, a technology industry analyst company he co-founded. He started and ran its information management practice and was known as a thought leader in areas such as e-Discovery, enterprise search, text analytics and unstructured data management. Nick has a BA in Philosophy from Middlesex University and an MSc in Computing Science from the University of London.

Source: Recommind

The post Discovering Dark Data appeared first on International Finance.

21st November 2013

Let’s start with a not too shocking statement: the cloud offers many advantages for legal firms in terms of storage capacity, as well as reductions in IT, hardware and software costs.  Nothing controversial so far.  But for all of the convenience and benefit cloud storage and services offer, there are also some risks that must be managed, especially in relation to electronic discovery. Recently I spoke to a group of students at Vanderbilt Law regarding this very topic (among others) and I stressed that it is increasingly common for eDiscovery to extend to the cloud and this risk can be proactively managed.

Notwithstanding some third party service providers that will rely upon the Stored Communications Act to stonewall a civil subpoena (do you “Like” that tactic?), problems still arise when opposing litigants bypass your firm and go to your cloud provider directly. Understandably, though potentially shocking to some, the cloud provider doesn’t have the same vested interest as you do in protecting your most sensitive stored information. In fact, some cloud providers’ terms and conditions are very clear that your data can be disclosed to others as they believe is reasonably necessary or appropriate, or if legally required to do so.  Not only can this have repercussions for your company in the event of a dispute under the Uniform Trade Secret Act, but you also face a very real danger of having far too much turned over during electronic discovery.  Want to take it one step further?  What about receiving a bill from the provider for producing the data? Talk about a worst-case scenario: you pay for your cloud provider to produce documents that ultimately comprised your case.

Meredith Thornburg White of Barnes & Thornburg, LLP points out in a recent article on the National Law Forum, one way to prevent this type of situation is to structure smarter contracts with cloud providers. The contract should require the provider to alert you immediately once they receive a subpoena or request for any information. One other key protection is to establish your right to review any documents the provider produces before they turn it over. Finally, two other stipulations to consider: the contract should contain explicit terms for how long data will be stored and specific conditions for who shoulders the costs during electronic discovery. These contract provisions may seem like common sense, but they’re also exactly what law firms can’t forget to put in place as eDiscovery continues to become just part of doing business.

About The Author:

Drew Lewis is eDiscovery Counsel with Recommind.  In this role he consults with outside counsel and in house legal departments about effective discovery strategies and the benefits of implementing predictive coding solutions. Prior to joining Recommind, Drew worked as a commercial litigator with Baker Donelson out of the firm’s Nashville office.  Drew has handled all aspects of discovery in his representation of clients, and through his private practice developed a streamlined approach to discovery that was helpful to resolve litigation favorably while still keeping costs in alignment with the budget of the client.

Source:  Recommind

The post Putting a Clause in the Contract for Electronic Discovery appeared first on International Finance.

2th November 2013

Given the sheer volume of information, there’s no denying that big data poses particular challenges for eDiscovery. Writing inCanadian Lawyer, Dera Nevin, managing counsel, e discovery at TD Bank Group, explores these and other implications of big data for eDiscovery. Nevin talks about how how many of the systems used for e-discovery today are unable to handle big data and will likely become obsolete in the not so distant future. Newer technologies such as predictive coding can dramatically speed eDiscovery. Ultimately, as the technology improves, the ability to find the most relevant documents quickly could in fact speed up litigation as a whole.

Much of our existing technological infrastructure simply can’t handle the volume that big data brings with it. However, as Nevin artfully points out, for eDiscovery size matters less than how a company approaches and tackles big data tests. Relying on existing systems that simply can’t cope with big data will likely lead to client dissatisfaction during e discovery. Rather than attempting to make current software into something it is not, Nevin sees big data as ushering in a new era in eDiscovery, one in which flexibility and an openness to new technology will be key ingredients of success.

Nevin states that advances such as predictive coding are only the beginning. In the future, eDiscovery will necessarily depend more and more on high-end analytic and data-mining products, and the job of eDiscovery experts may become less about creating document review tactics and more about verifying the quality of search analytics and guiding the machine learning process.

Better technology for eDiscovery means more efficient document reviews and lower e discovery bills for clients, something that clients will appreciate. Additionally, as Nevin highlights, these improvements will very likely improve litigators’ ability to do their jobs. She writes, “…these innovations may help with case analysis or proactive risk management by helping to identify correlations between disparate case elements and gain earlier intelligence about the probabilistic outcome of cases.”

Pioneering eDiscovery technology, equipped to handle big data, will have implications for the entire legal profession. It will be easier to find relevant documents earlier in the discovery process, which will likely speed the litigation process. But it will also be able to connect the dots between cases in a way in which e discovery has never been able to before. Few lawyers would ever complain about being able to do their jobs faster and more effectively. And that’s why these changes shouldn’t incite panic or fear. In fact, they should be seen as an opportunity.

About the Author:

Dean Gonsowski is the Global Head of Information Governance. A former litigator, General Counsel and Associate General Counsel, Dean Gonsowski has more than 15 years’ experience in litigation, eDiscovery and information governance consulting at companies including Symantec, Clearwell Systems, Daticon, Navigant Consulting, Inc. and Fios, Inc.

In his role at Recommind, Mr. Gonsowski will work closely with key enterprise customers, partners and government agencies to help them to effectively leverage Recommind’s industry leading predictive coding platform.  He will also help spearhead strategic customer engagement initiatives to develop executive advisory boards, user groups and implement a comprehensive customer loyalty infrastructure.

He is a member of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1), the Electronic Discovery Reference Model (EDRM) and the Association of Corporate Counsel (ACC).  He has contributed articles to a number of leading industry publications including:Business Week, Corporate Counsel, ILTA Peer to Peer, Inside Counsel and the Legal Tech Newsletter. He has been quoted in a number of leading publications, including the Financial Times, Forbes and MSNBCand has also has been invited to speak at various industry conferences including: The Computer Forensics Show, ILTA, Legal IQ/IQPC eDiscovery Series, LegalTech New York and the Masters Conference.

Mr. Gonsowski has a JD from the University of San Diego School of Law and a BS from the University of California, Santa Barbara.  He is a licensed attorney in both California and Colorado.

Source: Recommind

The post What’s the Impact of Big Data on E-Discovery? appeared first on International Finance.