A recent landmark decision in which the Court of Chancery ordered both sides to engage in predictive coding by using a mutually agreed upon vendor has been modified. The new order allows plaintiffs in the EORHB v. HOA matter to review their documents using traditional methods. They will also be allowed to choose a separate vendor than defendants.Continue Reading...
We lawyers have a tendency to confuse our terminology when discussing technology. This is especially true when discussing the technical aspects of eDiscovery.
I was inspired by the excellent Grossman-Cormack Glossary of Technology-Assisted Review which attempted to define the terminology surrounding TAR. I prepared the following short glossary of commonly used eDiscovery terms to assist our group in understanding some of jargon used by eDiscovery professionals. The terms can be found after the break.Continue Reading...
Henry Kelston of the Legal Intelligencer provides a useful summary of the amendments to the FRCP that were recently proposed by the United States Courts’ Advisory Committee on Civil Rules.
The rules would seek to create uniformity on a variety of issues including scope and proportionality of discovery, sanctions for failure to preserve discoverable information and limits on written discovery and depositions.Continue Reading...
Hello, and welcome back to the Delaware eDiscovery Report. There have been many developments recently in the world of eDiscovery, particularly in Delaware. Before providing a rundown of these new cases and guidelines, I would like to offer an introduction.
My name is Ian McCauley. I have focused my practice solely on eDiscovery for the past 5 years with an emphasis on effective project management, early data/case assessment and litigation support/legal synergies. I hope to have other voices join the conversation as we begin the blog anew.
I attended the Carmel Valley eDiscovery Retreat (CVEDR) two weeks ago, spent last week digging out from under everything that had piled up in my office, so now have a moment to share some thoughts on the event.
First, a big congratulations to Chris LaCour for putting together a successful event. I thought the content was among the best I've seen, especially the panel on defending the use of analytics. ;-) The work product series of panels explored the tension between work product protection and cooperative translucence. As you can imagine, there was some debate on the issue and highlights the need for more practical guidance—if the experts can't agree, what hope does the average practitioner have of walking this tightrope?
eDiscovery Journal's Greg Buckles was an excellent moderator and has written his own summary titled "CVEDR Take II – Monkeys and Magistrates in Monterey." Greg offered us some key takeaways and paraphrased memorable panelist statements. I would like to offer the following unattributed panelist comments or concepts to Greg's list:
- 'Judge-consumable' information is information about e-discovery that is easily digested by non-e-discovery judges.
- 'Containing the intrusion' into work product, meaning efforts to limit the scope of inquiry when the e-discovery process is called into question.
- Many of us seem to agree there should be a presumption that a producing party has acted reasonably, requiring some good cause showing of a problem before delving into work product protected activities.
- If you want to try some form of technology-assisted review but are uneasy about its defensibility, try it out on an opposing production.
- Have a Consulting Expert who will have full access in a matter and a Testifying Expert who knows about the things they need to know to properly testify.
- Along the same line, bifurcating custodian interviews into Technical Interviews and Substantive Interviews protects the substantive information from disclosure.
- Who owns the work product protection when a firm chooses a vendor and works directly with them, but the client signs the contract?
- An Information Flow Map may be more useful than a Data Map, because it shouldn't become outdated as quickly.
There were many more excellent quotes and ideas floated at the conference. Be there next year and hear them all. In the meantime, you can listen to the 2012 Judicial Panel at ESIBytes.
Not only is this worm and its siblings, Duqu and Flame, fascinating, the information security (infosec) issues have implications for data authenticity. I'll explore data authenticity is a future post, for now here are a couple recent articles on Stuxnet's death.
A few links to recent articles of interest:
- Experts Propose Defensible E-Discovery Standards (Jason Baron's working on an official ANSI ISO Standard on eDiscovery; how does this jibe with the EDRM's work?)
- Hacker Conferences Target the Law (Lawyer tells IT people to think of "litigation, including subpoenas, search warrants, and discovery orders, as another form of attack." My emphasis.)
- Lawyers Talking About e-Discovery? Not So Much. (Dennis Kiker laments the sad truth that most lawyers still don't know to discuss and plan for eDiscovery. Amen Brother!)
- Around the Blawgosphere: Crowdsourcing Performance Evaluations? Pros and Cons of ‘Client Contact’ (ABA Journal spotlights Delaware's legal social media maven and labor & employment lawyer Molly DiBianca.)
I recently came across this interesting post summarizing a survey of General Counsel views on eDiscovery: 2012 Study of Global 250 General Counsel on eDiscovery. A few of the survey's findings perplex me.
Top Concerns Over the Next 12 Months: Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 63%
Top Frustrations Over the Past 12 Months: Outside Counsel Not Providing Adequate Support for eDiscovery Requirements = 75%
Top Pet Peeves Over the Past 12 Months: Outside Counsel's refusal to take responsibility on eDiscovery = 50%
Have these GCs been unable to find outside counsel that has an eDiscovery practice group? I see "Electronic Discovery and Information Governance" practice groups popping up like weeds, so it seems like they would be easy to find. Firms are falling all over themselves to woo GC's with their eDiscovery prowess, so why are so many unhappy with their outside counsel's eDiscovery services?
Perhaps they have hired firms who claimed to be eDiscovery experts but turned out to be otherwise? That's possible and quite frustrating to those of us who dedicate ourselves to the practice of eDiscovery instead of just using it as a marketing angle. It seems there are those who think they can simply read the Zubulake opinions, pay the Sedona Conference© Working Group Series℠ membership fee, and declare themselves eDiscovery experts.
If your outside counsel isn't providing quality eDiscovery services, find new outside counsel.
A few links to recent articles of interest:
- Pittsburgh lawyer wins landmark case involving use of predictive coding in discovery process (while everyone stares at the Da Silva Moore train wreck, this undramatic case may turn out to be useful)
- Where Angels Fear To Tread: Daubert, FRE 702, and eDiscovery (discusses expert testimony to assess the reliability of predictive coding and other eDiscovery technology; included despite the fact that the author commits one of my pet peeves using the phrase "beg the question" (a specific type of flaw in formal logic) instead of "raises the question")
- Is LPM a Technique? Is It Process Improvement? (Steven Levy)
- Judge Orders Forensic Examination of Attorney's Hard Drive (to investigate document backdating suspicions)
- Apple iOS Presents Forensics Challenges in E-Discovery (the prevalence of iPhones and iPad makes them a large and growing source of original discoverable information)
- Court Suppresses E-discovery in Criminal Investigation for Government's Bad Faith Seizure of Hard Drives (no "taint review" had begun on hard drives seized 15 months prior to hearing)
- Unique insight into Flame malware (interactive timeline and infographic of the domain registrations used by Flame for command and control)