eDiscovery and Litigation Support

Recap of Digital Reef’s Social Media Webinar

Kevin L. Nichols — Mon, 20 Feb 2012 15:45:00 GMT

Recently, Digital Reef hosted a webinar on the intersection of case law, data privacy, and discovery in the context of social media. The webinar covers three major topics related to social media:

1.) Provides a brief overview of some of the recent case law, employer liability concerns and new ethical concerns using social media

2.) Instructs readers how to prepare for social media discovery responses

3.) Provides social media policy best practice tips

The webinar helps listeners gain a greater grasp of the importance of having firm social media policies and procedures, and become better prepared to implement an action plan to address social media discovery.

One of the first distinctions drawn in the session was between business and personal communications. The line is getting greyer regarding whether or not communications are business related versus more personal when you are “friends” on Facebook, “connected” via LinkedIn, or “following” co-workers using Twitter and an issue arises at work. Social media has also exploded the number of “places” where electronically stored information relevant to a case might reside. Evidence is as likely to be located on Facebook, Twitter, LinkedIn, Instant Message, or SMS as it is in corporate email, or files stored on a shared network. The landscape is made even more complex given increased business use of various electronic devices such as laptops, tablets (iPads), and Smart phones.

If litigation ensues, how do you get a copy of the “tweet” or posting so that you can produce it to opposing counsel, and what happens to the evidence when co-workers spread the comments/pictures/etc. via their smart phone over the internet?

Furthermore, social media posses more challenges to traditional corporate practices of relying on email exchange servers to keep track of data and for preservation purposes. How do you place an internal “legal hold” to preserve any relevant data when the data is not hosted on your servers? The use of social media forces companies to think of strategies and cost effective measures in order to deal with its unknowns. Hence, companies need to invest the appropriate time, energy, and money in implementing plausible policies and procedures to protect them from exposure and liability.

Skilled litigators can figure out what’s going on. Utilizing the ENRON debacle as a case study, tens of millions of emails were analyzed which produced voluminous “red flag” terms such as “big mistake,” “can’t believe,” “just between us,” and “serious trouble” which indicated that something was awry at the company. eDiscovery, in these circumstances, is invaluable. It is easier to implement these tactics when the data is in-house, however, in the realm of social media, there are a lot more obstacles. Social networking sites typically battle tooth and nail to prevent giving up privacy information of its users, which can present enormous road blocks if the litigator cannot agree with opposing counsel to accept screen shots or printed copies of the party’s profiles.

Organizations should develop a social media policy that clearly articulates to their employees what comprises appropriate and inappropriate use of social media. Some simple best practices from the webinar were to not post anything that you would feel awkward saying in public; refrain from disclosing confidential or sensitive information online; and know the “ins and outs” of the social media site’s privacy and user settings. Be mindful that this new way of interacting online is fun and exciting, yet volatile and highly unregulated. The activities that you participate in and the matter that you conduct yourself may have consequences somewhere down the road once the court system catches up to where we are now.

Click here to listen to the replay

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which speciLalizes in Litigation, Diversity and Business Development/Social Media consulting.

Social Media Never Sleeps at LegalTech New York

Kevin L. Nichols — Fri, 17 Feb 2012 14:56:00 GMT

I had the pleasure of attending the “Money Never Sleeps and Neither Does Social Media: FINRA’s View is the Future for All” workshop at LegalTechNew York last week. The panelists were Debbi Corej (VP of Compliance at Prudential), Melanie Kalemba (VP Business Development of Socialware), Lisa Sotto, Esq. (Partner and Head of the Global Privacy and Data Security at Hunton & Williams LLP), and Allison Jane Walton, Esq. (eDiscovery Counsel, Symantec). One neat component of this workshop was that they handed out remote polling devices so that the audience could interact by answering questions anonymously and analyze the results in real-time.

The first major topic of the presentation was the complexity of privacy laws. Given the fact that there are more than 10 federal laws, hundreds of state laws, and various industry standards, there is no overarching privacy scheme in place in theU.S.and around the world. U.S.’s privacy laws such as HIPAA for the health care industry, COPPA for children’s data, and DPPA for DMV records require strict security and protection of this sensitive information. The Federal Trade Commission (“FTC”) has the authority to enforce such laws, however, enforcement typically falls after either a security breach, deceptive statements in privacy policies, or lack of conspicuous notice. Attorneys General are also becoming more proactive in the fight, yet privacy protection is still a global issue.

Secondly, having a formidable social media policy (“SMP”) is imperative. Employees are leveraging their “personal” networks to achieve “professional” success, which drives value in a relationship economy. Social networks such as LinkedIn and Facebook are designed for users to have one profile, so it is likely to expect overlap between “personal” vs. “professional” content. To protect the organization, the SMP should describe appropriate business usage of social networking sites (“SNS”). Here are the Elements of a Social Media Policy Checklist that they provided:

Form a social media committee to manage project adoption;
Gain consensus of company’s key stakeholders to establish and prioritize objectives and goals of employing social media;
Research and understand social media options, benefits, and pitfalls;
Determine best fit of company with social media options;
Determine which features/options/settings the firm is comfortable with or would prefer to prohibit;
Develop firm and regulatory compliance processes;
Draft company’s social media policy;
Designate employees to test approved social media sites;
Collaborate/coordinate with marketing department on guidelines for communicating with the public and pre-content approval process;
Work with legal department to develop proper disclaimers;
Work with IT department to integrate tools and automate procedures (monitoring, documentation, access);
Implement [a] social media training program;
Establish monitoring, supervision, and documentation procedures;
Activate social media program (enable & automate access); and
Review written policy frequently as social media is evolving rapidly

One of the key takeaways from this presentation is that a social media policy should be integrated into your document retention polices because it should be treated just like any other type of electronically stored information (“ESI”). Companies can either block access to social media all together, or create and implement strict policies and procedures. Social media can help grow your business, however, the ability to finesse the “personal” use versus the “professional” use can be challenging, yet highly beneficial.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which speciLalizes in Litigation, Diversity and Business Development/Social Media consulting.

How to Make the Most of Delaware’s New eDiscovery Rules: Part 3

Daniel Garrie — Thu, 16 Feb 2012 14:08:00 GMT

(Part 3 of 3) Tip #10: Appoint an E-Discovery Liaison: Each party to a case is required to designate an e-discovery liaison through which all e-discovery requests are to be made. The individual can be a third-party consultant, an employee of the part, or counsel.

Counsel should select someone early that knows e-discovery law and technology and ideally is also adept at searching for information. It is advisable that Counsel engage the Client technology team in selecting such an individual because if the person is not technically competent regarding the Client’s specific systems it could cause problems down the road. A company that finds itself a frequent party to litigation would save substantial money, time and resources by creating a full-time in-house e-discovery liaison.

Tip # 11: Information Searching Training

In addition, the new Default Standard requires that parties agree as to the method of searching, the words, the terms, and the phrases to be searched leveraging the domain expertise of their respective e-discovery liaisons. It is critical that the e-discovery liaison be trained in information searching.

Tip #12: Plan Carefully the Details of the Search

The parties also must agree as to the timing and conditions that might require additional searches during the course of discovery.

Counsel is advised to pay particular attention to the details of the search because selecting the wrong terms, fields, time frame, or document type can determine the cost and value the discovery provides. When selecting terms counsel should always remember that they are asking a machine to search data and not a human being, meaning that the machine is not likely to pick up cultural jargon, typos, or other things that humans automatically perform when reading information. However, tools are in the marketplace today that are more than just “dumb machines” that enable counsel to be both more efficient and effective when searching data.

Tip # 13: Develop a Standard Roadmap Describing your Process

With regards to the format of the data sets that are produced, the new Default Standard provides that if the parties during the course of the Rule 26(f) conference cannot agree as to format -- the parties shall produce text searchable image files, unless this proves to be overly burdensome. Parties are entitled to request the production of the native files that correlate to the search text image files, subject to a showing of a specific need.

In the first thirty (30) days of discovery, the parties should work with their respective e-discovery retention coordination to provide a roadmap that outlines the manner in which they intend to segregate and preserve the relevant information. In-house counsel should consider developing a standard roadmap that they can provide to outside counsel. Such a roadmap would provide e-discovery consistency and reduce costs substantially since outside counsel will not have to create such a document from scratch as part of each litigation. The more forthright the parties are in their efforts to preserve at the outset the less likely it is any accusations of spoliation will be viewed as having merit.

(Part 3 of 3)

For Tips 1-5, Click Here

For Tips 5-10, Click Here.

Making The Most Of Delaware’s New E-Discovery Rules: Tips 5-10

Daniel Garrie — Wed, 15 Feb 2012 16:13:00 GMT

(Part 2 of 3)Tip #5: Document Inaccessible and Not Relevant Systems The Default Standard (as introduced in Part 1) provides guidance around the timing of e-discovery. Specifically, it states that, upon receipt of a request for production under Fed. R. Civ. P. 34, the parties shall search systems that are reasonably accessible and produce such information in accordance with Fed. R. Civ. P. 26(b). This means where counsel fails to identify systems that are inaccessible and/or not relevant, counsel should be prepared to search and produce from such systems.

Counsel during the discovery phase should keep at a minimum a living document that details systems that are inaccessible and/or not relevant and ensure that this information has been provided to the courts and opposing counsel.

Tip #6: Make IT Aware of Inaccessible Systems

The new Default Standard when counsel identifies such systems as inaccessible, parties will not be required to search such systems until the search of all reasonably accessible relevant data repositories are completed.

When such systems are identified counsel should make IT aware that production from such systems be required, because acquiring data from such systems might require the use of third-parties or the use of internal IT resources. By providing notice you are enabling IT to plan, which generally makes the production (if necessary) less costly and disruptive.

Tip #7: Be Prepared to Defend Requests for On-Site Inspection

The new Default Standard further holds that any such request for information that is not reasonably accessible must be narrowly tailored and with good cause. The Default Standard also mandates that any request for on-site inspection pursuant to Fed. R. Civ. P. 34(b) is to be reviewed for (1) good cause and (2) specific need.

Notably, the default standard does not provide any guidance as to what constitutes good cause or specific need, so counsel should be prepared to defend its request for on-site inspection vigorously. In this regard, both “good cause” and “specific need” can be demonstrated to the court by various techniques, but should generally include a technical affidavit or report that supports the need for an on-site inspection.

Tip # 8: Identify Restrictions

The new Default Standard also requires the parties to disclose any restrictions specific to the scope and method of the electronic search of such information.

Counsel would be well served by engaging in a dialog around any such restrictions with the technical stakeholders involved in the search, because often what is obvious to a technologist might not be to counsel.

Tip # 9: Maintain a List of Capabilities and Limitations

Although the Default Standard is not clear as to what constitutes a restriction, counsel would benefit from having a firm grasp on the capabilities and limitations of any search tools being utilized.

In-house counsel should maintain a list of such limitations and provide this to outside counsel at the on-set of the discovery process.

Tip #10: Appoint an E-Discovery Liaison

Each party to a case is required to designate an e-discovery liaison through which all e-discovery requests are to be made. The individual can be a third-party consultant, an employee of the part, or counsel.

(Part 2 of 3. Stay tuned more tips on making the most of Delaware's New E-Discovery Rules)

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Making The Most Of Delaware’s New E-Discovery Rules: Tips 1-5

Daniel Garrie — Mon, 13 Feb 2012 19:06:00 GMT

(Part 1 of 3) On December 8, 2011, the Delaware federal courts adopted a "Default Standard for Discovery, Including Discovery of Electronically Stored Information ('ESI')” – commonly referred to as the “Default Standard”.[1]

The Default Standard has several key components that prescribe the process of e-discovery and the information sharing that must occur between opposing counsel. Notably, Rule 26(f) of the new Default Standard compels the parties to engage in substantive dialog around various aspects of the e-discovery process that is about to be undertaken. The Default Standard also requires that prior to the Rule 26(f) conference, the parties will have exchanged specific lists of information.

This article describes the new Default Standard for e-discovery and offers practical tips for practitioners.

Tip #1: Confer with Human Resources about Key Custodians

The Default Standard requires counsel to create a list of likely custodians with relevant electronically stored information. The list must provide the individual’s title and responsibility. Prior to the Rule 26(f) meeting, counsel should confer not only with in-house counsel but also with the client’s human resource representative to verify that the title and responsibilities being stated are both accurate and up to date. Counsel might also want to identify who are full time and who are contractors as contractors may be using their own computer systems.

Tip #2: Work with Technology Stakeholders about Relevant Systems

Counsel, in creating the list of custodians and relevant electronically stored information, should work with the Client’s technology stakeholders. This information may require a significant effort by the Client, and so counsel should engage early with the Client’s technology team to avoid a time crunch. In-house counsel should consider working with the information technology group to develop a list, routinely updated monthly or quarterly, that contains these details and can be accessed by counsel without requiring legal to engage IT each time such information is required. Although this might appear daunting, the long term benefit of implementing such a system with the requisite underlying process delivers value to the legal and technology groups, saving money, time, and resources. It is important to note that many IT departments have applications up and running to manage user profiles.

Tip #3: Establish a Retention Coordinator

Counsel is compelled to name an individual responsible for ESI retention and provide a general description of the retention policies for the systems identified as set-forth in Relevant Systems above. The retention coordinator is required to perform the following: (a) ensure that the e-mail of identified custodians is not permanently deleted in the ordinary course of business and that all other information maintain by the custodians is not tampered with or destroyed; (b) provide notice as to the spam and/or virus filtering criteria used by e-mail systems – all such messages are deemed to be unresponsive as long as the filtering criteria is reasonable; and (c) within seven days of identifying the relevant custodians, the retention coordinator must implement the aforesaid procedures and files a statement of compliance with the court.

Counsel and in-house counsel should proactively reach out to their Clients IT team to identify the appropriate Retention Coordinator. The actual number or title of individuals is not specified by the Default Standard, but it would be logical to assume that at least one or two people within the IT leadership group would be appropriate. Identifying IT authorities early on saves time and ensures that the parties will not accidentally end up eliminating a system that is subject to a litigation hold, which has been known to happen. While many corporations have a retention policy, few have a person designated for its enforcement. Enforcement typically occurs on a case-by-case basis when available storage space becomes an issue so Counsel should take pains to clarify what is policy and what is practice.

Tip #4: Identify Potential Problems

Parties should identify and provide notice to opposing counsel of any reasonably anticipated problems that might arise during the course of e-discovery. Because hindsight is 20/20 in-house counsel might want to compose a list of prior e-discovery issues that have arisen and utilize it appropriately. One possible implication of identifying problems earlier rather than later is that it can potentially lower the costs associated with the discovery process.

Tip #5: Document Inaccessible and Not Relevant Systems

The Default Standard provides guidance around the timing of e-discovery. Specifically, it states that, upon receipt of a request for production under Fed. R. Civ. P. 34, the parties shall search systems that are reasonably accessible and produce such information in accordance with Fed. R. Civ. P. 26(b). This means where counsel fails to identify systems that are inaccessible and/or not relevant, counsel should be prepared to search and produce from such systems.

[1] In the alternative, the new standard for e-discovery is that if no discovery agreement has been reached prior to the Fed. R. Civ. 16 scheduling conference, then the rules set-forth in the new Default Standard governs until the parties elect to conduct discovery in a cooperative fashion.

(Part 1 of 3.) Part 2 NEXT>>>

LegalTech New York Graduates from “ECA” to “Assisted Technology Review"

Kevin L. Nichols — Thu, 02 Feb 2012 14:19:00 GMT

If you thought descending on New York was going to be a vacation, you are probably feeling otherwise by now. I am confident that the recuperation process has begun after another successful LegalTech Show. If you have ever been before, this year’s show had the typical “glitz and glamour” as past shows. Last year, the talk of the town was Early Case Assessment (“ECA”) and nearly every workshop or presentation incorporated the topic in some shape or form. In contrast, this year’s show nearly made no mention of ECA. Instead, the unofficial theme of the Show was “Assisted Technology Review,” otherwise known as Predictive Coding, or more recently referred to as Predictive Priority ^TM.

The first plenary session titled, “Man vs. Machine: The Promise/Challenge of Predictive Coding & Other Disruptive Technologies” featured Maura R. Grossman (Litigation Counsel at Wachtell, Lipton, Rosen & Katz), Ralph Losey (Partner and National eDiscovery Counsel for Jackson Lewis), and The Honorable Judge Andrew Peck (U.S. Magistrate Judge for the Southern District of New York). The title of this session was somewhat misleading because by the end of the presentation, the conclusion was clearly a resounding “machine” as the victor, with little to no discussion about the “man” side of the equation.

Future blog posts will dissect the contents of this panel more in-depth because there was a lot of content discussed, yet one major takeaway is a baseline definition of “Technology Assisted Review” (“TAR”) which was defined as:

…an umbrella concept that involves keyword search, conceptual search, clustering, relevance ranking, sampling and predictive (aka computer-assisted) coding…[meaning] tools that use sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e. training by) a human reviewer. - Man vs. Machine Plenary Session

This definition takes into account the need for the “human reviewer” to be a seasoned partner or team that codes a “seed set” of documents that the computer will use to prioritize the review and/or determine responsive versus non-responsive documents. Grossman described the process with an analogy of an ophthalmologist’s examination, where an individual’s eyes are tested with lenses on the left and right side to determine the appropriate strength of the prescription. Eventually, it will become challenging to differentiate between the lenses and that is when your prescription has been identified. Similarly, the “high level trainers” as Losey referred to them, will train the computer to identify the appropriate documents to review and produce.

While the bulk of the show focused on TAR, very little emphasis was placed the importance of where TAR would be most effective and where it should appear in the Electronic Discovery Reference Model (EDRM). I argue that it should occur where LegalTech left off last year, in ECA. ECA allows you to access the entire corpus of documents and infuse your seed set at the beginning, before it gets to the review phase. Then you can feel more comfortable with the integrity of the data set that will be used for the traditional manual review. Stay tuned, for there is more to come from LegalTechNew York!

How to get the most out of eDiscovery Providers at LegalTech NY

Kevin L. Nichols — Fri, 20 Jan 2012 15:49:00 GMT

LegalTechNew York, by far, is the most highly anticipated legal technology conference in the world. Although the industry is broad and it makes a valiant attempt to cover various practice areas, it is predominately driven by eDiscovery solutions providers. For example, when you look at the marquee sponsors or the workshop presenters, you will notice that the majority of them have eDiscovery products or services. If you work in a law firm or are a corporate law department and already utilize these services, then LegalTech will provide you numerous additional opportunities to learn more about your practice’s needs. For those of you whose eDiscovery knowledge is limited, LegalTech is the perfect place to expand your knowledge of the industry. Here are some tips of how to get the most of the vendor booths in the Exhibitor Hall and the workshops in order to take full advantage of this unique opportunity:

Be Prepared – It does not hurt to do a little homework before you arrive. Research your organizations’ current service providers to see who they are. Ask your litigation support professionals, IT, or litigation paralegals what their thoughts are of their products and services, and ask them if they are looking at or considering additional providers so that you make sure you visit with them at “The Show.” If your organization does not have any eDiscovery matters, examine your clients and your current case load and ask yourself, do either of them have electronically stored information (ESI) that might be relevant to win your case? If so, you should find out how a vendor can help you achieve this goal.
Have a general idea of what your needs are and make the vendor sell you on them – The Exhibitor Hall can be an energetic environment full of sales executives looking to educate their potential customers about their products and services. The best thing to do after the preparation stage, is to know what questions to ask and why. If you are familiar with eDiscovery services already, then you can make more headway by inquiring what new releases and enhancements of various products will do for you, and/or evaluate foreign solutions to see if their service offerings are better or worse than what you currently have. Make the vendors earn their keep by selling you their service offerings. Have them demo their products and services for you and ask for literature and business cards of the individuals that you meet in the event you need to follow up with them.
LegalTech Brings Star Power – Rarely, will there be an opportunity to meet face to face with the president and/or CEO, of a multi-million dollar company by merely stopping by their company’s booth. Or meeting the CTO (Chief Technology Officer) who created the processing, hosting, or collection solution that your firm or organization uses. Thus, it is imperative that you have a well thought out plan of what you want to learn when you stop by a booth. You can find out a wealth of information about your current tools as well as learn the ins and outs of new tools that you had no idea even existed. Cease the moment.
Meet the Presenters – After a workshop that is sponsored by an eDiscovery provider, hang around once the presentation is over and meet the executives afterwards. If you have experience with their tool, let them know what that is, good or bad. Tell them some issues or problems you may have encountered either with their tool or with other solutions and ask them how their products and services deal with that particular issue. Moreover, you can also rant a rave if you are a satisfied customer of theirs as well. The wealth of information and the ability to have a captive audience hear your thoughts and vice cersa is chance of a lifetime.

In summary, eDiscovery providers want to meet you, whether you are an expert or novice. They want to understand your practice and they want you to learn about their products and services. Hopefully, the two will coincide and mesh together. While you are at LegalTechNY, take advantage of the unique opportunities to demo products, ask detailed questions, and learn what is on the horizon for that company and ultimately the industry. Ask questions, such as “Where do you think the industry is heading?” And review your clients’ needs to see if these vendors will be a contender to meet them in the future. Above all, have fun and stop by as many booths as you can.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com.

Tips and Tricks for LegalTech New York

Kevin L. Nichols — Thu, 12 Jan 2012 14:01:00 GMT

For those of you who have never been to LegalTech New York (LTNY), it is regarded as “the most important” legal technology conference in the world. Thousands of attendees converge from various continents to the New York Hilton in Mid-Town Manhattan from January 30 through February 1, 2012, to hear panelists and speakers disseminate the latest and most relevant content pertaining to the profession. The bulk of LTNY consists of education, where there are various “tracks” such as Information Management, Technology in Practice, and Corporate Law Departments designed to provide tips and best practices for lawyers, law firms, and corporate legal departments. Moreover, there are keynote speakers during morning and lunchtime sessions on various cutting edge topics by high ranking members in the industry. Last, but not least, the Exhibitor Hall showcases literally hundreds of vendors with booths conducting live demonstrations, handing out marketing materials, and engaging their customer base in person.

To get the most out of LTNY, here are some tips and tricks that you can use:

Plan a head – Visit www.LegalTechShow.com and download the brochure to map out your itinerary for all of the tracks that you are interested in attending.
Research – Remember that this is a technology show, so research the vendors that will be in the exhibit hall. If your firm needs calendaring, docketing, eDiscovery, or early case assessment (“ECA”) software solutions to name a few, research the vendors that will be there so that you can get a live demonstration, attend their workshop, and/or speak with a representative about your specific needs.
Communicate – Attendees are surprised when they Tweet about or participate in a LinkedIn group discussion about what they want or need to see at “The Show” (as it is affectionately referred to), and have various vendors respond who are listening. Tweet using #LTNY or #LegalTech hash tags to communicate with other attendees, including organizing a “Tweet-up” where you all can meet other like minded attendees during The Show.
Attend – You will be surprised how many thousands of people are at the hotel and in the keynote sessions versus those that are actually inside the workshops themselves. It is imperative that people attend the workshops. Often times, handouts are laid out on all of the chairs in preparation and many of them have to be recycled. Attending is the most important reason to go to The Show in the first place.
Meet the presenters – I have been fortunate to ask questions and meet multiple panelists and workshop presenters from past conferences. We have connected via LinkedIn and have had the pleasure of working together in various capacities since then. Bring business cards and ask for them as well. Get connected via LinkedIn and touch base from time to time so that they remember you.
If cost is an issue, visit the Exhibitor Hall and attend Keynote Sessions – Some firms and organizations cannot afford to send their employees to LTNY. There are other ways to take advantage of The Show. Registering for the Exhibitor Hall and attending the keynote sessions are usually free to the public. Please visit www.LegalTechShow.com to confirm and plan accordingly.
Take the “Swag” and Marketing Materials – Companies spend thousands of dollars on the developing marketing materials and creative concepts of toys and trinkets to highlight their brand. Not only should you take them, but read them to see if you have any questions before The Show ends.
Get on the Guest List for Receptions and Night-Time Activities – This is a tricky part. Many of the receptions are private for vendors’ clients or specific to only law firms/potential clients. Some of the receptions are publicized in the LTNY brochure and your registration may get you in to one or two. My recommendation would be to see if you can get on a guest list by contacting some of the sponsors to see if they are hosting events during LTNY or ask any of your existing clients/vendors the same.

This can be a very fun and exciting conference. It is a wonderful introduction to legal technology. Depending on whether or not you are a lawyer, litigation support professional, or a vendor, you will have very different experiences. Vendors will be incredibly welcoming and inviting to those from law firms. Lawyers and litigation support professionals will be deathly afraid that everyone is a vendor and is out to sell them something. Regardless who you are, I encourage you all to forget who you are and why you are there and just be friendly to one another. It makes “The Show,” less of a “show” and more like a professional gathering and exchange of knowledge from thought leaders in legal technology.

Don't forget to stop by Digital Reef's booth #1404 to view a demonstration and enter to win great prizes!

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com.

Indirect Costs of eDiscovery: Diverting of Resources and Personnel

Daniel Garrie — Tue, 10 Jan 2012 14:32:00 GMT

The full cost impact of an e-discovery request for an organization is hard to estimate because of the underlying, multi-faceted cost points.

E-discovery has become a cost-center for businesses, as it can drain significant funds without generating any in return. The idea of not keeping information that is not legally mandated or generates revenue for the company rarely rears its head in the e-discovery discussion, as most organizations tend to be reactive rather than proactive.

Companies should attempt to quantify the e-discovery costs today to determine the true costs of e-discovery tomorrow. In performing this calculation, it is critical to factor in the people burden, especially the indirect costs that result from the loss of business revenue or decreased job satisfaction, as well as the costs of diverting critical resources for a particular case. Employees involved in the e-discovery production, review or analysis process in an as-needed basis, will clearly limit the time and energy they can invest in their core duties. In some cases, companies have implemented in-house e-discovery teams, yet frequently the team is not provided with the necessary recourses to deliver real savings to the company.

Generally an e-discovery solution hinges on a common sense approach to defining a strategy, factoring in the technology, business and legal needs of a company. A company that is able to establish internal policies and business processes with the requisite technologies can reap substantial cost savings .

A company that can efficiently and effectively respond to e-discovery requests is minimizing the disruption to the business mission. Even though e-discovery is becoming the cost of doing business, the amount it costs varies greatly on these and other factors.

Although it is not necessary to get it 100% right the first time, it is key to get the ball moving and iterate, in order to learn from your own mistakes and those of your peers. The end result is that a company can lower the cost impact of unwelcome e-discovery requests and be assured that the focus is on making money.

Companies that are e-discovery prepared are rewarded. For example, many e-discovery and forensic firms charge substantial fees for a "rush job".

Furthermore, prepared companies avoid the internal e-Discovery learning cost curve.

Given the American legal mantra, the better you do in business, the more likely it is you get sued, and, the modified CCP to address e-discovery, it is more likely than not that a US company will face the e-discovery cost conundrum sometime in the near future - in State or Federal court.

Companies that fail to face these e-discovery issues can incur substantial expenses to their company or, in the case of outside counsel, to their client. Adjoining the additional costs is the reality that counsel can potentially endanger a case, irrespective of the underlying merits, which is reflect at both the State and Federal level.

Cost Effective Electronic Discovery in Litigation

Daniel Garrie — Mon, 09 Jan 2012 14:40:00 GMT

Litigators have an interest in making sure that, despite all the obstacles presented by the American system of justice, the value provided their clients by litigating a dispute exceeds the costs. However, in regards to e-discovery, federal and state codes now require the preservation and production of electronic data in all its various forms, with immense costs.

If one is not careful, the costs of electronic discovery alone may well ensure that any victory obtained in the courtroom will be entirely pyrrhic to your client. Yet, failure to reasonably abide by one's e-discovery obligations may lead to more costs later, in the form of motion practice, additional required discovery, and even possible sanctions.

Several organizations, such as the ACTL and The Sedona Conference are working on developing codes and standards that will bring some order and direction to the e-discovery process. Likewise, the Judicial Conference Committee on Rules of Practice and Procedure are considering changes to the rules of e-discovery that may lighten the litigator's burden. These proposed fixes, however welcome, address symptoms, not the underlying problem.

It is not novel that wherever there is information that may be relevant to a dispute, the principles of an adversary system of justice require that information be captured, reviewed and produced to the other side. What is new is the rate of technological change in this information age, and the simple fact that companies are generating more information than ever before.

Viewed in this way, it seems that the problem of electronic discovery might actually be a symptom of a larger problem of digital information management.

Accordingly, the most effective solution is one that addresses the information overload at its source, through a company's adoption of responsible and effective enterprise information management principles.

Companies adopting technologies that allow them to effectively manage their information so that less is retained, and that which is retained can be seamlessly collected, preserved, and reviewed, are companies that will obtain both a competitive and litigation advantage that could save the company millions in legal and technological costs. Here, the old saying "less is more" holds true, because companies that keep less information have less information to identify, collect, preserve, review, and analyze.

Of course, selecting the right solution and synchronizing the solution with a company's policies is critical. It requires crossing the gap between the technical jungle and the legal morass to deliver a real solution. Today, organizations seemingly keep information that has no legal, economic or competitive benefit, because the policies they have are not effectuated by the technologies they have acquired.

Large companies have achieved economies of scale by hiring "discovery counsel," be it an individual dedicated to helping manage the discovery portion of all litigations or outside counsel appointed to serve as National Discovery Counsel. A benefit of retaining such counsel is the company develops a deeper knowledge of the company's information systems, and that synchronicity between the technology and the law helps lower the company's legal bill.

The State of eDiscovery 2011: Results of our industry market research study

Kevin L. Nichols — Fri, 06 Jan 2012 15:55:00 GMT

With the start of the New Year eDiscovery practitioners often try to predict what risks, concerns, and challenges they will face in 2012. With the exception of using GPS technology, it is difficult to know where you are going if you do not know where you have been, or at least where you are. Rather than merely pontificating on this prediction, Digital Reef and I decided to take this a step further by conducting a market research study on the current state of eDiscovery, so that the industry has a benchmark of where we are heading.

First of all, we would like to thank those of you who took valuable time away from your busy schedules to participate in this survey. To put the survey results in their proper context, 40% of the participants worked in law firms, 26% were vendors, 14% were consultants, and 6% were corporate. Since the law firm category is relatively broad, 35% considered themselves as executive/senior management, while 24% were attorneys, 26% were litigation support professionals, and 7% were paralegals.

It is also important to know the experience level of the participants in order to gauge whether or not they know what they are talking about. As a whole, 35% have been in the industry between 5-15 years and 50% have been in it more than 15 years. Thus, our pool is comprised of very seasoned industry professionals.

Surprisingly, between 38%-40% of the participants are doing ECA, processing and collections in-house. Some organizations are doing legal holds and preservation as well. Here are some of the other activities that our participants are currently doing in-house:

Although 71% of the participants have full-time IT/Litigation Support Professionals, here are the results of what they still send out to vendors:

The cloud has been the source of great concern in the industry and in the courts. Fifty percent of those surveyed said that they either always or sometimes used cloud based ECA, however, nearly 19% where unsure of what they used. Consistently, 65% use a cloud based document review solution at some frequency, but 11% were unsure. Here are some of the pros the industry feels about utilizing cloud based technologies:

People also commented about cloud based technology’s “ease of use” and “convenience” as being strong pros as well. Nevertheless, in addition to the concerns below, many have concerns of its reliability and security:

Based on the industry’s concerns, fears, and successes, it looks like the industry will continue to look to the cloud for its eDiscovery solutions:

As our electronic devices continue to evolve, so will the need for our eDiscovery solutions. Cloud based technologies tend to have a lot of concern about security, yet many people enjoy the cost savings, functionality, and ease of use. Providers will need to address the security concerns the industry has in the New Year, but continue to make eDiscovery a practical cost saving solution overall. Here’s to the New Year and we hope to see you at LegalTech NYC.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com.

Takeaways from The Sedona Conference Working Group 6’s Report

Kevin L. Nichols — Wed, 04 Jan 2012 13:32:00 GMT

On International Principles on Discovery, Disclosure & Data Protection

The Sedona Conference^® (TSC) creates a preeminent opportunity for legal industry thought leaders, i.e. judges, attorneys, academics, and experts, to have a “meeting of the minds” regarding best practices and tips on issues such as antitrust law, complex litigation, and intellectual property rights. This is accomplished through mini-think tanks referred to as “Working Groups.” Working Group 6 is charged with focusing on International Electronic Information Management, Discovery, and Disclosure. Last month, they issued a report containing some best practices that will be summarized herein.

In 2007, Working Group 6 decided to tackle discrepancies involving cross-border discovery disputes and data privacy, challenges with transferring electronically stored information (ESI), and establishing workarounds because there was not one solution to these problems. TSC published The Sedona Conference^® Framework for Analysis of Cross-Border Discovery Conflicts (“Framework for Analysis”) shortly thereafter to address these concerns. To illustrate the complexity of the problems the TSC faced, an example was provided where a company inToronto was conducting business in a café inParis by sending electronic transmissions with attachments from “cloud” based servers inSingapore,Dallas, andAmsterdam to customers inDubai. Where does one begin to tackle such a jurisdictional nightmare? In the past, international agreements would dictate such discovery, however, those are extremely outdated.

Thus, the international legal community had to standardize discovery practices to deal with these issues. Here are the 6 Principles that Working Group 6 came up with:

The Sedona Conference^® International Principles on Discovery, Disclosure & Data Protection

1. With regard to data that is subject to preservation, disclosure, or discovery, courts and parties should demonstrate due respect to the Data Protection Laws of any foreign sovereign and the interests of any person who is subject to or benefits from such laws.

2. Where full compliance with both Data Protection Laws and preservation, disclosure, and discovery obligations presents a conflict, a party’s conduct should be judged by a court or data protection authority under a standard of good faith and reasonableness.

3. Preservation or discovery of Protected Data should be limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts of law and impact on the Data Subject.

4. Where a conflict exists between Data Protection Laws and preservation, disclosure, or discovery obligations, a stipulation or court order should be employed to protect Protected Data and minimize the conflict.

5. A Data Controller subject to preservation, disclosure, or discovery obligations should be prepared to demonstrate that data protection obligations have been addressed and that appropriate data protection safeguards have been instituted.

6. Data Controllers should retain Protected Data only as long as necessary to satisfy legal or business needs. While a legal action is pending or remains reasonably anticipated, Data Controllers should preserve relevant information, including relevant Protected Data, with appropriate data safeguards.

Although these principles seem practical and intuitive, it is imperative that the international legal community adopt such to have a baseline of how to address these issues. Please keep in mind that these only apply to European countries, yet a later version will be released to address additional countries. Please visit TSC’s website for the entire publication and the detailed comments regarding the above.

Note: This is the “Public Comment Version” of the International Principles and TSC welcomes suggestions and thoughts at www.thesedonaconference.org or info@sedonaconference.org.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.

Social Media Tips in the Age of eDiscovery

Kevin L. Nichols — Wed, 21 Dec 2011 14:13:00 GMT

Privacy is one of the public’s biggest concerns when discussing eDiscovery and its place within the realm of social media. For one thing, many people feel that it still exists…it does not. More and more courts are determining that there is no reasonable expectation of privacy when individuals voluntarily post updates, thoughts, suggestions, recommendations, etc. out in “the cloud” of public domain. Various Tweets, status updates, “check-ins”, and the like have caused many problems for litigants from across the globe. Who here has read all of the terms and conditions of all of the social media sites that they belong to and still belong to them? I would argue that very few have. So what can we do as regular citizens to protect our inalienable rights of Freedom of Speech and expression? Here are some tips that may give you the impression that your social media activity is private but cannot guarantee that it is not discoverable:

Facebook – The biggest culprit in alleged privacy violations appears to be Facebook, due to the shear volume of users. Under the Home button at the top right, there is a Privacy Settings button. There, you can limit who has access to see your posts, determine whether or not your profile is searchable by strangers, and determine which applications you will allow access to your profile. I recommend making your profile extremely private where no one can find you unless they have your customized URL or that your friends, who see you comment on a mutual friend’s page, sends you a request that way. Moreover, I rarely “check-in” places so that I do not alert people of my actual whereabouts at any given time. Employers, potential employers, or private investigators who are looking for your profile to see what kind of dirt that they can dig up on you will not be able to find you or if they are lucky enough to, they will have to develop further cleaver tactics to “friend” you in order to get behind your “friend” wall.

Twitter – Although it is difficult to say a lot using Twitter since it is limited to I believe 143 characters per Tweet, what you do say can go viral instantly and cannot be taken back. Furthermore, Twitter can pin point your exact GPS location when you send a Tweet if you do not know what you are doing. You also have to be careful using third party applications such as TweetDeck or UberSocial to send and receive Tweets because they have there own complicated privacy settings. I advise people that want to Tweet just to there “followers” to go to settings under their avatar at the top right of the screen and check Protect My Tweets and leave Add a Location to my Tweets unchecked so that you do not disclose your whereabouts at any given point of time.

LinkedIn – Even though LinkedIn is the most professional social media site, you still can and should protect your profile. The purpose of LinkedIn primarily is to network professionally so you want people to find you, however, you do not want EVERYONE seeing your activity, your status updates, your contact information, or sometimes your connections. Depending on what industry you are in, sharing this information can be detrimental by giving away your competitive edge for free by disclosing your coveted contacts. If you click settings under your name at the top right, there are buttons called Privacy Controls and Settings at the bottom that will allow you to limit who can see what if anything at all.

These suggestions will give you the illusion that you have privacy, however, as we all now should know, if your social media activity becomes a material issue in a lawsuit or legal proceeding, it will more than likely be discoverable and wind up in a trial where dozens of people, from vendors collecting and processing, to legal assistants and lawyers reviewing, and jurors and the audience seeing you holding one too many cocktails at last year’s Christmas party…

For more information and case law regarding social media, please click here.

To view a webinar on social media and eDiscovery, please click here.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com.

Effective Project Management is Essential

Kevin L. Nichols — Mon, 12 Dec 2011 15:28:00 GMT

Effective project management is an essential component in the litigation discovery process. Unlike other practice areas, litigation requires meeting numerous court deadlines, following various rules of civil procedure, and bartering with opposing counsel to reach agreements. Non-compliance can be costly, where hundreds of thousands of dollars can be handed down as sanctions. Effective project management enables lawyers to rely on their vendors to assist them in achieving these requirements on-time and on-budget.

The industry does not have a consistent definition of a project manager, however, for our purposes, we will define him/her as the technically skilled and legally knowledgeable intermediary between the law firm client and the vendor's IT staff that guides the flow of electronically stored information (ESI) throughout the Electronic Discovery Reference Model (EDRM). A project manager's duties include but are not limited to the following:

1. Possessing enough background and knowledge of the litigation process to comprehend the specifications and scope of the project at hand in order to articulate a clear and concise statement of work (SOW) for client approval;

2. Translate effectively the details of the SOW to the IT/EDD staff so that they know what to do and how to do it;

3. Set realistic internal deadlines that end before the drop-dead deadlines of the client’s to allow an appropriate cushion in the event something should go array;

4. Inquire about the project's status on a regular basis with IT/EDD staff and communicate updates to client; and

5. Effectively manage the project, including assisting the client with issues that may arise during the document review, until completion of the project, with honesty and integrity.

Honesty and integrity is inextricably tied to the project manager's familiarity and knowledge of eDiscovery. Both the vendor and client rely immensely on this individual's ability to communicate effectively. Thus, in order for project management to be effective, there must be technical knowledge, knowledge of the litigation process, honesty, and integrity. If any of these are lacking or missing, the project manager will learn accountability very rapidly.

For more eDiscovery best practice insight from industry experts browse our video page.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting. For more information, please visit http://www.klnconsultinggroup.com.

Tips and Techniques for a Defensible Social Media Discovery Process

Kate Slattery — Thu, 08 Dec 2011 15:53:00 GMT

Tweets, status updates, wall posts, messages… these have all become forms of business communication. The acceleration of social media has created yet another e-discovery headache for litigators. The problem is growing, and social media must be considered when preparing a case. It is almost required now that attorneys be knowledgeable and due diligence around social media. When comparing social media discovery to traditional discovery the process is essentially the same; search, identify, preserve, analyze and produce. But social media discovery requires specific techniques and a lot more “digging” than traditional discovery.

In a recent Digital Reef/ Masters Conference webinar, attorneys and experts gave best practice tips and techniques for doing social media discovery. The webinar provided available research tools and checklists for doing social media research, and gathering evidence. Sites like peekyou.com, people.yahoo.com, google.com/cse, to name a few, are sites that can be used as research tools to build a discovery profile using everything available through a public domain.

The panel stressed the need to document everything, and advised the audience “if your methodologies for retrieving evidence can be replicated, than you can be confident that you have carried out a reasonable and defensible means for gathering evidence”.

Find out how you can do social media discovery, what precautions you should take, and get access to research tools and checklists by viewing the webinar. The webinar recording is now available and can be accessed here.

Weighing the Risks and Benefits of Cloud Computing

Daniel Garrie — Wed, 07 Dec 2011 14:33:00 GMT

It is not a trivial task to migrate systems, data and users to a new system and especially one that exists in the cloud. However, companies that do so successfully achieve visibility into spending on cloud resources and manage the lifecycle for each instance, gain the ability to scale IT infrastructure capacity to meet increased demand, without capex resource costs, and do not have to spend time waiting for IT resource. Moreover the cloud enables companies to pay only for what it consumes, leaving it free to focus on its primary business. A cloud based environment can also allow companies to better handle a challenging economy by providing greater business agility in terms of rapidly expansion or contraction IT capabilities.

Though difficult to quantify, the risks involving the cloud data storage are very real. For example, there is the risk of loss or damage to the data. Provisions should of course be made to deal with such problems, but there can be a business cost to any interruption in the normal flow and use of data. Litigation risks are also present. Cloud computing could lead to increased risk of litigation over certain types of data, such as a patent litigation. Of course, the costs of any litigation will include electronic discovery costs, and the company must consider whether these costs will increase as a result of the cloud and should consider whether any increased costs could potentially offset or mitigate the benefits of using the cloud

Counsel should identify how data will be collected and preserved before that data is put on the cloud. A good practice point is to record the results of the due diligence in a data map or other litigation readiness tool and store that along with the contract. Should litigation later arise, the company will be prepared.

The business units must be engaged in the entire process as well. Their most important concern should be the handling and treatment of data - how it will be stored, accessed and used. But they will also need to consider the costs. One key point often overlooked is that every cloud computing solution is unique; in a large organization, different business units may have very different needs and issues (as well as cost analyses) and store information in different ways. One possible way to divide information is to segregate information by type. One can treat e-mails differently than other data. Or, if a company uses sales data, production data, and inventory data, it may make sense to store these in unique cloud systems in order to maximize storage and usage efficiency. Thus, depending on the company, the process of implementing cloud computing may involve several different approaches.

In short, clouds can provide significant competitive advantages in use, storage and efficiency of data. But these advantages will only be realized if they outweigh the costs and risks associated with the cloud. Careful attention to these risks at the outset - before implementation of the cloud - is the key to its successful use.

This is Part 3, of a 3 Part Post on eDiscovery in the Cloud; Click here for part 1, and here for part 2.

Cloud Computing & Jurisdiction: A Primer

Daniel Garrie — Tue, 06 Dec 2011 14:03:00 GMT

Cloud computing, which is relatively new, could lead to some novel problems concerning jurisdiction. Generally, in civil lawsuits, a company is charged with producing relevant documents that are under its “custody and control.” This typically means that a company is responsible for producing its documents without regard to where the documents are physically stored, provided they are the company’s documents or the company has control over the documents. However, because a company using cloud storage will place its documents in a different physical location from the office of that company, several new questions may arise and there is little precedent for these types of issues.

It is important to note that state laws can come into play. States have laws governing privacy and confidentiality that can provide severe sanctions for violating those laws. With cloud computing, are the documents governed by the law of the state in which they are physically located or by the location of the company possessing them or by the laws of the state where a person resides?

This problem becomes more complicated when one considers the role of law enforcement or government regulators. As the use of technological records increases, including email, instant messaging and cell phone records, so does law enforcement’s use of technology to conduct investigations and establish evidence of its cases. If the government wishes to review, or even seize, the records located in the cloud, does it have the power to do so? If there is a dispute over that issue, who decides? Which court would have jurisdiction? It is important to remember that law enforcement and government agencies may have difficulty using their authorized powers if they are outside of the jurisdictional limits of those powers.

These problems can become significantly more complicated if the documents are stored in another country, as confidentiality and privacy laws can vary greatly from those in the United States. For example, some countries have strict laws relating to secrecy of bank documents and the penalties for violating those laws can include criminal sanctions. Another potential area for disputes involves intellectual property rights, which can vary significantly.

An additional area of complication can be the use of affiliated companies for data storage and maintenance. What happens if a large company forms a subsidiary to manage its data and the data is stored under the name of that subsidiary? Could this mean that such data may not be responsive to document requests of the other affiliated companies? Could it impact the jurisdiction of courts to address disputes concerning the data?

Some of these issues can be addressed in the cloud computing contract. Agreements can be made concerning the jurisdiction over disputes concerning the data. However, disputes involving other entities which are not parties to that agreement may not be subject to the agreement. Accordingly, cloud computing presents significant uncertainty and has the potential for future disputes concerning jurisdiction.

This is Part 2, of a 3 Part Post on eDiscovery in the Cloud; Click here for part 1.

E-Discovery Analytic Technology: How does it work?

Kate Slattery — Mon, 05 Dec 2011 14:54:00 GMT

At this year’s 8^th Annual-Advanced eDiscovery Institute Event, a panel entitled “Behind the Black Box: Decoding Advanced Analytic Technology” was held for legal professionals to learn about eDiscovery technologies in simple terms. As moderator Gilbert O. Greenman stated, “…to explain the black box to you, I have none other than people who can claim to have invented the black box, tested the black box, and analyzed the black box”. Panelists included Founder and CTO of Digital Reef, Steve Akers; Principal Researcher at Microsoft Research, Susan Dumais; Professor at the University of Maryland, Dr. Douglas W. Oard; and CTO of Recommind, Dr. Jan Puzicha.

Concept searching, near-duplicate clustering, document clustering, predictive coding, and related analytic technologies facilitate eDiscovery, but many there are many concerns attorneys have about the ability to explain these technologies. This panel of experts peeled back the cover of these tools, and explained in simple terms how they work in practice. The panel of experts looked at both where on the EDRM the black box technology fits in, and what exactly the black box is. While introducing the panel moderator Gilbert Greenman joked, “…the slides may be the only thing this panel agrees upon.”

Cloud Computing Caveats Part I: Take Time with the Details

Daniel Garrie — Fri, 02 Dec 2011 15:58:00 GMT

Switching to a cloud can save money by lowering IT and data center support costs, improving performance and scalability, and reducing storage costs. However, stakeholders and counsel should be cognizant that cloud computing presents various legal issues around control and custody of data, data preservation and collection, data review and production, and of course, attorney-client privilege.

Before migrating to the cloud, a company should identify its critical systems and related data, and have such data readily accessible in the event its cloud-based data becomes inaccessible. In choosing a cloud vendor, pay attention to mechanisms the vendor has in place regarding backup and data retrieval. How many servers does the host have? How often will your data be backed up? What is the cost and time involved in rendering backup data accessible to you?

In preparing for the suspension or termination of cloud service scenarios, the legal component is as important as the business and technology considerations presented above. Counsel must identify and designate the parties responsible for repairing the cloud and getting the Company’s systems running again. Counsel should pay particular attention to the terms under which such repairs must be made and paid.

Counsel should identify which parties are responsible for covering the costs from the damages arising from the temporary or permanent shut-down of the cloud. Any agreement around cloud computing should define in detail what happens to the data if the cloud or the Company goes bankrupt. The agreement should state that the data of the Company should be the property of the company alone and not the property of the cloud vendor. The agreement should expressly provide that the cloud vendor has no rights to hold the data or to refuse the Company access to the data and, upon bankruptcy or any other termination of the business of the cloud vendor, the data should be promptly be returned to the Company. An agreement lacking these details can result in a company losing access to its data, if, for instance, creditors successfully assert that the data is the property of the bankrupt cloud vendor. If an argument is made that the data is an asset of the bankrupt debtor, the bankruptcy Court can take jurisdiction over that data and the data can be frozen until the Court can decide who is entitled to the data.

Another temporary suspension or termination of service issue involves the voluntary termination of service. The cloud vendor might be acquired by a competitor of the Company and consequently the Company might be uncomfortable with the vendor continuing to host its data. Counsel for both parties should ensure that the agreement address how to get the data from the cloud, who pays, and the appropriate timeline. Moreover, the Company should address what happens if the cloud vendor withholds the Company’s data in a dispute about payment. It is prudent that Counsel for the Company include language specifying that no dispute concerning payment constitutes grounds for the cloud vendor to withhold data.

This is Part 1, of a 3 Part Post on eDiscovery in the Cloud; Check back for Part 2.

Interested in Digital Reef's hosted eDiscovery Solution? Click here.

How can lawyers learn more about eDiscovery to win cases?

Kevin L. Nichols — Wed, 30 Nov 2011 21:18:00 GMT

As litigation attorneys grow more technologically savvy, the integration of eDiscovery practices congruently become more widespread. More law firms are accepting the fact that cultivating electronically stored information (ESI) can help them win their cases. However, there is large subset of attorneys that wince at the very thought of dealing with ESI and will avoid it all costs. Perhaps it is because they do not understand its use, have heard horror stories about the financial burden that eDiscovery may cause, or that they are afraid of the enormous consequences that exist with sanctions. Regardless of the reasons, many law firms and lawyers from around the world are consciously refusing to explore proven methods that can assist them in winning their clients’ cases. Nevertheless, they are in luck, because it is not too late for them to learn how to utilize eDiscovery to provide them more options to win their cases.

David J. Schwartz once said, "To fight fear, act. To increase fear wait, put off, postpone." Squeamish lawyers must overcome their aberration of eDiscovery and learn more about it. EDiscovery can be used to obtain pertinent information extracted from various key witnesses to prove their knowledge of, or the existence of, relevant evidence/facts that win or lose cases. Laptops, desktops, handheld devices, etc. all possess ESI that can provide the location of witnesses, email communications, social media postings, and the like, which may have an impact on the outcome of their case. Here are 5 tips of what lawyers can do to learn more about eDiscovery:

1) Study eDiscovery trade associations and their publications – The EDRM.net, ILTA, Sedona Conference, etc., provide a wealth of knowledge and resources for people wanting to find out more about eDiscovery and its various stages.

2) Read law and technology news magazines – There are a few good publications that talk about the latest news and best practices.

3) Subscribe to eDiscovery Blogs – Knowledgeable and talented litigation support professionals, vendors, and law firms have fantastic blogs with relevant case law, articles, and updates.

4) Participate in free vendor webinars – Many vendors have products and services with cutting edge technology that they want to share with the world “for free”. Take advantage by participating and asking as many questions that you may have.

5) Attend eDiscovery workshops and conferences – Numerous shows exist around the country, such as LegalTech, ILTA, the Masters Conference, to name a few, that focus on eDiscovery technology and creating solutions for all types of legal organizations. Meet the individuals behind these conferences face-to-face and make them earn your business.

‘Zero Email’ Policy: The Need for a Social Media Discovery Plan

Kate Slattery — Wed, 30 Nov 2011 18:33:00 GMT

Goodbye, email- hello eDiscovery headaches. ABC News reported in an article on Tuesday that Employees of Atos, a technology company, will be banned from sending emails due to the company’s recently implemented “zero email” policy. Why no emails? The CEO of the company, Theirry Breton, says only 10% of the 200 messages employees receive per day are useful, and 18% are spam messages. Breton believes it will be effective to get rid of email all together and force employees to communicate with one another using Facebook and other social media sites.

Are the days of email coming to an end? Hopefully not, but while social media continues to evolve into a central method for business communication it is more vital than ever to have a social media discovery plan in place.

Tomorrow at 1 PM EDT (Thursday, December 1) Digital Reef will host a webinar of attorneys and experts who will address the hot topic of social media and eDiscovery, while offering insights for preparing a social media discovery plan.

To register for this webinar entitled Social Media: The intersection of case law, data privacy and practical Discovery, click here and select “Register” next to “Event Status”.

Electronic Conveniences and Privacy Issues

Kate Slattery — Wed, 30 Nov 2011 15:15:00 GMT

Yesterday’s Wired Magazine article - entitled Researcher’s Video Shows Secret Software on Millions of Phones Logging Everything - states, “The Android developer who raised the ire of a mobile-phone monitoring company last week is on the attack again, producing a video of how the Carrier IQ software installed on millions of mobile phones reports most everything a user does on a phone.”

While disconcerting, this isn’t uncommon. Electronic conveniences significantly affect privacy. In a August Panel at the Master’s Series for Legal Professionals, Founder of Digital Reef and a panel of experts discussed issues arising when discoverable data is stored in the cloud, mobile apps, mobile phones, iPads, GPS tracking devices and more.

Who has my data? Where is it being stored? Get answers by watching the video below.

Click Here.

Addressing Social Media and E-Discovery

Kate Slattery — Tue, 29 Nov 2011 14:36:00 GMT

Facebook, Twitter, LinkedIn... social media as a mode of communication is constantly evolving and the methods of addressing it when it comes to discovery are also changing. Firms and corporations should have a plan in place to address social media, regardless of the stage of evolution.

This week, Digital Reef will host a panel of attorneys and experts to cover the hot topic of social media and eDiscovery. The panel will touch on the unique aspects of discovery response planning, recent case law, employer liability, and new ethical concerns.

The panel includes Gordon Calhoun, Partner, Lewis Brisbois Bisgaard and Smith, Brian Rocca, Partner, Binham McCutchen LLP, and Jim Vaughn, Managing Director, Intelligent Discovery Solutions. These three experts will discuss the topic and answers any questions from the audience in an informative webinar. The live webinar will be held on Thursday, December 1 at 1:00 PM EST.

To sign up for this webinar: Click here and select "Register" (next to "Not Started") to secure your spot.

Highlights from the Georgetown eDiscovery Conference

Kate Slattery — Fri, 25 Nov 2011 14:57:00 GMT

The Georgetown eDiscovery Conference opened and closed the first day of the event with the two top most popular panels of the conference. Day one of the 8^th annual Georgetown Law Advanced eDiscovery Institute event began with an opportunity to learn from those who have the ultimate decision in whether an eDiscovery practice is legally defensible; a panel of six federal judges. These judges from across the country gathered to discuss some of the most interesting cases and trends in the industry in a panel entitled “eDiscovery Case Law Update”.

These judges were: Hon. John M. Facciola from the U.S. District Court for the District of Columbia, Hon. James C. Francis from the U.S. District Court for the Southern District of New York, Hon. Andrew J. Peck also from the U.S. District Court for the Southern District of New York, Hon. Lee H. Rosenthal from the U.S. District Court for the Southern District of Texas, Hon. Shira A Scheinden from the U.S. District Court for the Southern District of New York and Hon. David Waxse from the U.S. District Court for the District of Kansas. The Honorable Paul W. Grimm was in the Agenda as part of the panel, but was not able to participate due to a conflict.

This session was the longest slot of the two-day event due to audience feedback and significant interest. Audience members stated the panel was unique due to the large number of judges assembled together in one program, and therefore it deserved a two-hour slot.

The last panel of the day, another session very well received by the audience, was entitled “Behind the Black Box: Decoding Advanced Analytic Technology”. As moderator Gilbert O. Greenman stated, “…to explain the black box to you, I have none other than people who can claim to have invented the black box, tested the black box, and analyzed the black box”. Panelists included Founder and CTO of Digital Reef, Steve Akers; Principal Researcher at Microsoft Research, Susan Dumais; Professor at the University of Maryland, Dr. Douglas W. Oard; and CTO of Recommind, Dr. Jan Puzicha.

Digital Reef is producing a four-part video series from this panel, that will be made available here on our Blog next week. Check back to view it!

Behind the Black Box: A Preview of the 8th Annual-Advanced eDiscovery Institute Event

Kate Slattery — Fri, 11 Nov 2011 17:29:00 GMT

The Georgetown Law CLE 8^th Annual-Advanced eDiscovery Institute event is rapidly approaching. Next week on November 17, eDiscovery thought leaders will gather at the Ritz Carlton in Washington DC for the two day CLE event. Digital Reef is a Georgetown Law Institute sponsor of the event and the company’s Founder and CTO, Steve Akers will be speaking at a 4:15 pm panel on the first day. The panel is titled “Behind the Black Box: Decoding Advanced eDiscovery Analytic Technology”.

No one disputes that concept searching, near-duplicate clustering, predictive coding, and related analytic technologies can help reduce the burden of eDiscovery. Yet, the fear that many attorneys have regarding their ability to explain these methods has limited their widespread adoption. Add the reluctance of some service providers to reveal the inner workings of their technology and the problem is compounded. This eDiscovery Institute event panel will peel back the cover of these tools and explain in simple understandable terms, how they work in practice.

Gilbert O. Greenman, from Williams & Connolly LLP, will moderate the panel. Panelists include Founder and CTO of Digital Reef, Steve Akers, Principal Researcher from Microsoft Research, Susan Dumais, CTO of Recommind, Dr. Jan. Puzicha, and Dr. Douglas W. Oard.

Digital Reef representatives will be present at a table in the Exhibit Hall, and will be raffling off Starbucks Gift Cards during Networking Breaks.

For more information visit our Events Page.