Last week I attended LegalTech at the Hilton in New York City. During the past two years the focus of LegalTech has largely been on the continuing Predictive Coding discussion with an emphasis on using it to reduce the cost of discovery. This year's conference, however, featured more varied CLE topics and discussions.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...
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)
2012 Federal Trial Practice Seminar: An Introduction to Federal Practice in the District of Delaware
From the Delaware Federal Bar Executive Committee:
The Delaware Chapter of the Federal Bar Association, in conjunction with the United States District Court for the District of Delaware, is pleased to announce another exciting new initiative. On the evenings of Thursday, May 17 and Thursday, May 31, 2012, from 5:00 to 7:30 p.m., the District Court and FBA will sponsor a two-night seminar program entitled “The Federal Trial Practice Seminar Presents: An Introduction to Federal Practice in the District of Delaware.” The sessions will take place in Courtroom 2B at the J. Caleb Boggs Federal Building.
Attorneys who have been practicing in the District for three years or less are eligible to participate in this seminar. One of the two seminar sessions will relate to an attorney’s interaction with opposing counsel and participation in the litigation process, while the other session will focus on an attorney’s interaction with the Court. Each session will include a presentation from a speaker and a panel discussion. The speakers and panel members will be current and/or former judges of the District Court.
Participation is limited to FBA members. Current FBA members may register for the seminar by contacting Steve Brauerman via e-mail at firstname.lastname@example.org, by no later than May 14, 2012. Those interested in participating in the seminar who are not currently FBA members may fill out and submit the attached application form in order to become a member. Alternatively, they may contact Mr. Brauerman at the e-mail address listed above to obtain additional information about FBA membership.
Space for the seminar is limited and applicants will be accepted on a first-come, first-served basis. Applicants should be available to attend both sessions. Admission to the seminar is free and the FBA expects to apply for Continuing Legal Education credit in Delaware for both sessions.
The "Introduction to Federal Practice" seminar will be organized by the same administrative team that has organized our successful "Federal Trial Practice Seminar" (or "FTPS") in 2010 and 2011. The FTPS, an eight-week trial skills seminar program offered to attorneys in their first ten years of practice, will be next offered again in Spring 2013.
- Note number one is that I promise to resume posting regularly. I haven't been very good at keeping up here as my case load has grown. It was important for me to spend my time focusing on managing my growing eDiscovery client work. (Don't feel bad though, because you aren't the only ones I've been neglecting. I didn't go to the Georgetown Advanced eDiscovery Institute, LTNY, or either of the last two Sedona Conference® WG1 meetings.) Now that I'm sure everything is under control, I can return to the blogosphere. Yay!
- Speaking of my return to the sunlight, I am honored to be a panelist at the upcoming annual ARMA Diamond State Chapter seminar, INFO XXX – RIM on the Edge. (Cool name! Jealous much?) I will be on a panel discussing Knowledge Management. I'm excited that two of my favorite people, Vince Catanzaro and Molly DiBianca, are also participating.
- Delaware's eDiscovery rockstar, Kevin F. Brady, has finally, officially joined forces with nationally known corporate litigator and blogger Francis G.X. Pileggi in the Wilmington, Delaware office of Eckert Seamans Cherin & Mellott. Kevin has often guest posted on Francis' blog, and the two have collaborated on other projects. I wouldn't say they exchange long-protein strains a la Kang and Kodos, but they've been professionally linked together in the past. Read more at Delaware Law Weekly.
- Last, but definitely not least. LeClair Ryan's Dennis Kiker, co-author of the excellent The e-Discovery Myth blog, has two posts discussing the emergence of the true eDiscovery lawyer—those of us who have dedicated our legal practice to eDiscovery. Take a look at "I Want an E-Discovery Lawyer for My E-Discovery Project" and the follow up "E-Discovery Lawyers – Part II."
Apparently I am the only one who seems to be concerned with the Court of Chancery's unqualified allowance for parties to agree to forgo discovery of ESI. Here are the other blog posts I found that have reported on the new guidelines, not a single one raises any concern:
Last week, the Delaware Court of Chancery—one of the nation's premier business Courts—unexpectedly issued a one and a half page "Guidelines for Preservation of Electronically Stored Information." Surprisingly, the Guidelines seem to allow parties to opt-out of document discovery entirely (see the last item below). In summary, the Guidelines are as follows:
- There is a common law duty to preserve potentially relevant electronically stored information (ESI) within a party's possession, custody, or control once litigation is commenced or when litigation is "reasonably anticipated."
- Parties must take reasonable steps in good faith to meet their duty to preserve ESI.
- Parties and their counsel should confer early in the litigation regarding the preservation of ESI.
- Parties and their counsel must develop, oversee, and document a preservation process in collaboration with the appropriate client information technology personnel.
- Parties and their counsel should discuss the need to identify how custodians store their information, including document retention policies and procedures as well as the processes used to create, edit, send, receive, store, and destroy information for the custodians.
- Counsel should take reasonable steps to verify information they receive about how ESI is created, modified, stored, or destroyed.
- The preservation process should include a written litigation hold notice to individual custodians instructing them to take reasonable steps, act in good faith, and with a sense of urgency in preserving potentially relevant information.
- Parties and their counsel may face "serious consequences" for failing to take reasonable steps to preserve ESI.
- The reasonableness of a party's preservation process is judged on a case-by-case basis.
- Counsel for all parties should confer about the scope and timing of discovery of ESI and may agree to limit or forgo the discovery of ESI.
I am very interested to hear comments on this development.
The Morris James Intellectual Property Litigation Group provides out-of-state firms and their clients help in navigating the Delaware court system. The Group combines its on-the-ground, technical and trial experience to address the complex intellectual property protection issues moving global markets today. They represent clients in complex disputes involving patents, trade secrets, trademarks, copyrights, unfair competition, and antitrust issues and have successfully litigated cases in all areas of technology in the Delaware District Court, the Delaware Court of Chancery and Superior Court, and federal courts throughout the country, including the Court of Appeals for the Federal Circuit.
Morris James is pleased to congratulate the lawyers listed below who were the most recommended by their professional peers, as determined by a Delaware Today survey of Delaware attorneys.
Gretchen S. Knight
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Keith E. Donovan
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Morris James LLP Receives "Award of Excellence" From The Marvin S. Gilman Superstars in Business Awards Sponsored by the DSCC
We are very pleased to receive this honor from the Delaware State Chamber of Commerce," said David H. Williams, Managing Partner of Morris James LLP, "Our firm is deeply rooted in Delaware and we are committed to providing our community with top-tier legal services.”
The Marvin S. Gilman Superstars in Business Award, named for one of Delaware’s leading small business entrepreneurs, honors businesses and non-profit corporations for their outstanding achievements and model approaches to business and management. The awards are presented to companies that have been in business for at least three years, are small businesses based on number of employees, and are members of the Delaware State Chamber of Commerce. Awards of Excellence are also granted to deserving companies.Continue Reading...
Best Practices in Managing Discovery: Strategies & Tactics to Control Spending, Reduce Volume and Streamline Processes
I am honored to be a co-panelist with Richard Baer of Qwest Communications, in a LexisNexis® webinar tomorrow, Thursday, September 23, from 2-3 pm EST. Rich is Chief Administrative Officer and General Counsel for Qwest, and we will be discussing best practices for managing discovery in-house.
Here is a short summary from the webinar's website:
If your law department is under pressure to control rising costs associated with discovery, you’re not alone. In an average case, discovery expenses now represent 50% of total litigation costs—and in some cases up to 90%.
In this free Webinar, we’ve paired in-house counsel Richard Baer of Qwest Communications and outside counsel Chris Spizzirri of Morris James LLP—two professionals who are expert at minimizing the burden and costs associated with discovery. Register today to discover best practices for:
- Creating and implementing policies and procedures to streamline every phase of discovery, from preservation efforts to document production
- Utilizing technology to organize and deal with large volumes of data
- Assembling and managing response and discovery teams including internal staff, outside counsel, contract attorneys and non-attorneys
- And more strategies and tactics
Please Register now and join us for an informative session.