FRCP Amendments: The Long and Winding Road


Just like in the Beatles song, the long and winding road leading to Federal Rules of Civil Procedure (FRCP) amendments took another turn on April 10th and 11th when the Advisory Committee considered the proposed rules package at its meeting in Portland, Oregon. The rules package being considered at the Portland conference was the result of revisions on the original amendment proposals after an active public comment period that ran from August 2013 through February 2014. While the rules package contains several important amendments relating to ediscovery, the most controversial proposal relates to the “failure to preserve” section in Rule 37(e). This language was the most hotly contested area throughout the public comment period. As such, there was much anticipation surrounding the Advisory Committee’s Portland meeting.

Major Ediscovery Milestones in Portland

The Advisory Committee unanimously approved a draft of Rule 37(e)…but not the draft that was issued in late March (after the public comments). A shortened Rule 37(e) – limited to ESI only – was drafted during day one of the Portland meeting and unveiled to the Advisory Committee only minutes before meetings commenced on day two. The fluidity of the process is exhibited by the fact that no Committee Note accompanied the revised Rule 37(e). Instead, when the Advisory Committee unanimously adopted it, the motion included a provision that a Committee Note be drafted prior to submitting a package to the Committee on Rules of Practice and Procedure (the “Standing Committee”).

The Best Possible FRCP Amendments Tour Guide

A full draft of the entire rules package – including the new, shortened Rule 37(e) – can be found in Tom Allman’s latest version of his FRCP amendments treatise. Tom is a former general counsel, current adjunct law school professor, and foremost ediscovery rules guru, and with his permission, Kroll Ontrack has posted Tom’s paper for our blog readers’ edification.

The Next Stop on this Incredible Journey

On May 29th and 30th, the Standing Committee is scheduled to review the Advisory Committee’s recommendations, after which the proposals (if approved) will be submitted to the Judicial Conference and Supreme Court. The earliest that any FRCP amendments could go into effect is December 1, 2015 (assuming that Congress does nothing to intervene).

Buckle your seat belts, there are likely to be a few more twists and turns before we reach the door of new FRCP guidelines for ediscovery.  Stay tuned to by Kroll Ontrack for all the developments.

Heartbleed Won’t Bring Cardiac Arrest for Ediscovery


How do you stop a security professional’s heart from beating?

Two words: security breach.  In today’s “Internet of Everything” environment, the impact of a security breach can be felt around the world and back again…in a matter of seconds.  For that reason, it’s not surprising that on April 7th when news of the Heartbleed bug became public, IT and security professionals issued a global code red.

What is the heartbleed bug?

Heartbleed is a name given to a vulnerability found within the OpenSSL library – a tool used in many software and hardware components to securely transmit information over the Internet.  According to the High Technology Crime Investigation Association:

“The Heartbleed bug allows anyone on the Internet to read the memory of the systems protected by the vulnerable versions of the OpenSSL software. This compromises the secret keys used to identify the service providers and to encrypt the traffic, the names and passwords of the users and the actual content. This allows attackers to eavesdrop on communications, steal data directly from the services and users and to impersonate services and users.”

When Google, YouTube, Facebook, Yahoo and Dropbox are on the short-list of providers working to protect their systems, you can imagine the impact is colossal.  Luckily, there are sites where you can keep abreast of the impact of Heartbleed on the most popular social, email, banking and commerce websites.

Why should ediscovery professionals care about Heartbleed?

It does not take an open heart surgeon to understand that legal teams should be assessing the impact of Heartbleed on their systems – stat.  From accessing judicial opinions to filing a claim and fact-finding in discovery, web-based legal software tools are more than a mainstay in today’s digital practice of law.  Most legal technology providers understand the critical nature of security to their offerings, and as such, have robust security programs, complete with on-going monitoring for vulnerabilities.

At Kroll Ontrack, security of our systems is paramount.  As part of our standard operating procedures, our engineering and quality assurance groups use various methods to inventory, and then test technology components to ensure that they are not vulnerable to such attacks.  Further, our IT team and Chief Information Security Officer continuously monitor for security alerts to ensure our technology platforms around the world remain unaffected.  We are glad to report that Heartbleed has not caused the pulse of to flat-line, or even skip a beat.  If you have questions specific to Heartbleed or any of Kroll Ontrack’s ongoing security protocols, contact your Kroll Ontrack case manager.

School of Ediscovery!


From Rodney Dangerfield’s 1980’s hit, “Back to School,” to Jack Black’s “School of Rock” in 2003 – time and time again – the movie industry strikes gold portraying stories of greenhorns attending or teaching in educational institutions.

Having had my own journey through law school and enduring the spotlight of the Socratic Method, I never thought I would be back in a law school classroom. But, when New York Law School asked if I would deliver a presentation on ediscovery, the daunting memories of my law school days soon vanished. Like Rodney Dangerfield and Jack Black, I was heading back to school!  (I have to admit, I liked being on the other side of the  podium.)

Ediscovery lives at the intersection of law and technology, and it is not surprising that law schools seek to include more ediscovery education as part of their mainstream curriculum. So, on April 8th, I stood before an assembly of eager New York Law School students to talk about ediscovery.  The presentation was titled “Ediscovery Unleashed!” and focused on how this area of the law is evolving at the speed of light with innovative technologies, such as predictive coding, pushing the boundaries of traditional document review and production.

This particular group of motivated law students more than understood that today’s legal professionals need to embrace the unique intricacies of ediscovery and the technologies that are employed in this area of law. I have no doubt that many of these New York Law School students will go on to do great things in ediscovery (and other areas of the law).

And, while we are on the topic of ediscovery in the classroom, Kroll Ontrack is hosting an upcoming Ediscovery Certification Workshop in New York City, NY, on May 7, in which I will be teaching with many more industry experts. Come for a day of great discussion, networking, and excellent food and beverages. Be there!

Three Good Reasons Why Even the Most Cutthroat Lawyers Should Want to Cooperate


Venturing down memory lane to when I was a first year law student with a thirst for knowledge, I’m reminded of the proverbial “Aha!” moment that struck me when all the information I’d been learning about distinct areas of law started to blend together. For the first time, I had a sense of how our overarching justice system actually functions in one related universe. Even within ediscovery, the topics we feel are discussion-worthy—evidentiary rules, computer forensics, costs, sanctions, and tech phenomena like social media or BYOD—can seem hard to place on one relatable plane.

It’s easy to dismiss in passing that the word “cooperation,” although it appears in ediscovery opinions touching all of these subjects, only serves as a friendly reminder or precedes the occasional slap on the wrist. But let’s leave the mushy stuff off the table—I’ve learned that if there is one go-to method to drive down ediscovery costs across disciplines, it’s cooperation. Below, I want to share three compelling incentives for cooperating early with opposition, and why cooperation is almost always better than crying foul over minor ediscovery procedural disputes.

Hammer out, and get approved, a Fed. R. Evid. 502 clawback agreement

Judge Waxse and Ralph Losey have spoken at length about the importance of clawback agreements, with the former allegedly opining that failing to enter into one could be sufficient grounds for attorney malpractice. The basic fact is that just as man and machine will probably never be able to perfectly separate what’s relevant from what’s not, the same holds true for identifying and isolating privileged information—mistakes happen and they always will. While this does incentivize proper vendor selection, it also stresses the importance of carving out an escape plan. Sans party agreement, parties must show they took “reasonable steps” to prevent disclosure, among other requirements found in Fed. R. Evid. 502(b) in order to recoup mistakenly produced privileged documents. However, parties can modify these requirements, or eliminate them altogether, if they arrive at a properly worded Fed. R. Evid. 502 clawback agreement before discovery begins.

Avoid being squelched about search when disputes  arise later

When one party fails to meet and confer, despite the mandates of Fed. R. Civ. P. 26(f)(3), courts have frequently voiced dismay when ruling over future discovery requests raised by that party.  In the context of search, if a proactive producing party solicits the requesting party for input over its tentative search protocol (whatever form(s) of technology assisted review it might involve), the requesting party has an incredible incentive to speak up. In In re National Association of Music Merchants, Musical Instruments and Equipment Antitrust Litigation, the plaintiffs failed to suggest any search terms to be used in the defendants’ search when prompted by the defendants in their early attempt to meet in confer. When the plaintiffs later argued that the defendants’ unilaterally chosen search terms failed to capture all responsive electronically stored information (ESI) because they didn’t accommodate for acronyms and abbreviations appearing in the data set, the court was quick to deny the plaintiffs’ motion asking the defendants to re-search ESI with key words which included these terms. If there is such a thing as “cooperation” case law, perhaps the general rule that emerges is that requesting parties get one bite of the apple for offering search input to producing parties, who are afforded deference over their search methodology and bear the burden of certifying a complete production under Rule 26(g). As shown by this illustrative case, when requesting parties don’t chime in after being engaged by a producing party attempting to meet and confer, the entire apple may be left for opposition.

Avoid discovery about discovery

When the defendants’ discovery efforts were brought under fire by the plaintiffs in Ruiz-Bueno v. Scott, the court was forced to decide whether it would force defendants to produce answers to interrogatories aimed at finding out how they conducted ediscovery. Let me make this crystal clear: the plaintiffs were asking the court to order the defendants to answer “what procedures or methods were used” for search—information that should have been discussed in a meet and confer that never happened. The main lesson of this case: failure to cooperate is costly. The court here awarded the sought after “discovery about discovery” after calling it exactly that, because it had to resolve the (non-)issue.

That’s my $.02 on the issue of cooperation, but more importantly I want your feedback: what are the incentives that compel you to cooperate or not cooperate early with opposition about ediscovery?

Also, check out Kroll Ontrack’s newest podcast, Work Smarter Not Harder Portfolio with Portfolio Management,  on Listen to experts David J. Kearney and John Winkler as they discuss the many benefits to multi-matter management discovery.

And the Award Goes to…


Awards can give you a tremendous amount of encouragement to keep getting better, no matter how young or old you are.
-Alan Alda

Who doesn’t love award and tournament season? In February I try to complete an Oscar ballot. Then, in March I attempt to fill out an NCAA tournament bracket. However, no matter the award or tournament, I routinely run into the same problem: my heavy bias toward who I think is “the best” clouds my ability to make objective decisions about other movies or teams. Whether it was my hands-down favorite film from 2013, or my beloved Alma matter (which was sadly snubbed in the NCAA tournament selection this year), there’s a lot of repetition in my award winner predictions.

Similarly, if I were to have to pick the best ediscovery provider, I don’t think I would have to spell out what my answer would be; I have a heavy bias toward and Kroll Ontrack.

For the 2014 Best of NLJ Survey awards, the National Law Journal did not ask me to fill out a ballot. However, the results were pretty similar to how I would have voted. I’m proud to announce that, based on nearly 6,500 votes from lawyers, legal consultants, judges, and other legal professionals nationwide, Kroll Ontrack was named “Best Predictive Coding eDiscovery Solution.” Kroll Ontrack also received top honors for “Data Recovery Solution Provider” and placed in the top three providers in many other categories. It’s great to know that all of the hard work Kroll Ontrack put into launching a revolutionary new platform and advancing knowledge about predictive coding in the legal community was recognized by NLJ readers…and, this award will push us to just keep getting better.

If you want to know more about this award, or Kroll Ontrack’s predictive coding solution, be sure to check out this short video.

March 2014 Ediscovery Case Summaries

Read the very latest ediscovery case law summaries

Court Endorses Use of Predictive Coding
Fed. Hous. Fin. Agency v. HSBC, 2014 WL 584300 (S.D.N.Y.  Feb. 14, 2014).

Court Imposes Sanctions for Manipulation of Metadata
T & E Inv. v. Faulkner, 2014 WL 550596 (N.D. Tex. Feb. 12, 2014).

Court Denies Sanctions Without Evidence of Timing of Destruction
Sokn v. Fieldcrest Cmty. School Dist. No. 8, 2014 WL 201534 (C.D. Ill. Jan. 17, 2014).

Defendant Fails to Meet Safe Harbor Standards with Deletion of Metadata
Gardner v. Cafepress, Inc., 2014 WL 794216 (S.D. Cal. Feb. 26, 2014).

Court Orders Limited Discovery in the Form of a Random Sample
McPherson v. Canon Bus. SolutionsInc., 2014 WL 654573 (D.N.J. Feb. 20, 2014).

Predictive Coding Semantics: Step out of the Rain!

predictive coding semantics

A few years ago, we wrote about predictive coding going mainstream; shortly thereafter we wrote a series debunking the most common myths about predictive coding; then, we even went so far as to break down predictive coding lifecycles (actually, we did that twice!), explained how to maximize training for machine learning, and taught a short lesson about the most commonly-used stats for evaluating your machine’s work. So, to make a long story short, we’re pretty big on using predictive coding as part of a search methodology, and we’re doing everything we can to demystify the process so that organizations can use this technology to increase their ediscovery efficiency and, in turn, save a significant amount of money. If you don’t believe me, check out one of our case studies illustrating the myriad benefits of employing predictive coding for search, analysis, and review.

According to Fullbright’s 9th Annual Litigation Trends Report in 2013, however, only 35% of the respondent companies indicated they were using some form of predictive coding. While that percentage is likely a significant increase from the pre-Da Silva Moore days where only a few ediscovery pioneers were brave enough to dive into their data with predictive coding, it still suggests some hesitancy on the part of practitioners.

Defining “Predictive Coding” and “Technology Assisted Review”

Whether the legal community’s hesitancy is related to cost, uncertainty, or a lack of matters they deem appropriate for predictive coding, it’s still a fairly opaque process, and it starts at one of the most basic levels: vernacular. The ediscovery community loves this technology… but it still hasn’t settled on what to call it. Whether it’s “predictive coding,” “technology assisted review,” or “computer assisted review,” there’s a smattering of terms floating around and little consensus about the preferred term.

As I stated before, Kroll Ontrack is committed to demystifying this process, and we’re drawing some lines to help clear up the semantic ambiguities related to predictive coding. It’s best to think of technology assisted review, or TAR, as an umbrella term that encompasses a variety of other advanced litigation technologies designed to help litigation teams work more efficiently and ease the burdens of standard linear review. Under this approach, predictive coding is just one prong of the larger array of complementary TAR and Early Data Assessment tools, such as near-dupe identification, email threading, visual analytics, workflow automation, and other reporting tools.

To see a visual of this approach, check out “Defining Technology Assisted Review,” our latest infographic.

How the ‘Internet of Things’ Will Impact Ediscovery


Most of us cannot fathom the day when every durable object around us is part of the “Internet of Things.” A world in which devices possessing IP addresses is the norm and not the exception. A world in which we interact with a dozen or more items in the course of a day that are “wired”, unassumingly gathering information about us and our interactions with our environment. When the “Internet of Things” becomes a reality, the deluge of data discoverable in legal actions will dwarf the data tsunami that is seemingly engulfing litigation teams today in 2014. Big data is only going to get bigger, my friends.

Today, ediscovery professionals turn over every rock – aka computer, laptop, server, phone, USB drive – to find relevant documents germane to a lawsuit. It’s not uncommon for a single commercial case to involve hundreds of thousands of emails and documents – all of which need to be examined and analyzed by the case team. Thankfully, technology has evolved at light speed to aid the increasingly daunting discovery process. From online review platforms, which saved young associates and paralegals from millions of paper-cuts, to cutting edge predictive coding tools that use artificial intelligence to weigh the responsiveness of a document in a matter – technology is now indispensable in legal discovery.

In the not-so-distant future, we all will live in an Internet ecosystem.  Our modes of transportation and locations, bio-medical devices, food and beverage consumption, purchasing habits, interactions with other humans and more will be catalogued by the “Internet of Things.” In a single day, we will leave digital fingerprints not only through the devices we carry, but also every object or establishment we interact with will possess metadata about our movements and decisions. Lawyers can only imagine the impact this will have on legal claims and defenses, with data security and privacy issues coming to mind. The number of “rocks” that ediscovery professionals will be called upon to collect, analyze and produce data from will be infinite. Ediscovery innovations have kept pace so far, but document review databases and ediscovery technology platforms will have to kick into warp drive to cope with this vast volume of new and diverse discoverable data from the “Internet of Things” revolution.

Antagonists will protest that data from everyone’s Internet toasters and coffee makers will have minimal relevance in litigation. Could the same insular thinking have argued that social media data in Facebook, Twitter, or LinkedIn would not be impactful in a law suit? We need to think more broadly. The “Internet of Things” will only lead to the ediscovery of everything. It will be a brave, new world of digital law and practice.

For a deep dive into a technology platform that is evolving the increasingly daunting discovery process, join us March 12 for ACED’s upcoming webinar, Work Smarter, Not Harder with Portfolio Management sponsored by Kroll Ontrack. Register today!

Twenty-Five Percent Fewer Eyes on Each Project From 2010-2012: A Sign of the Times?

pulse benchmarks

Staying ahead of the curve is everything in ediscovery, and the Pulse is generating all kinds of buzz amongst lawyers and practitioners looking to improve their output. About a month ago, nearly 150 Legal Tech attendees crammed into the Nassau Suite at the Hilton, New York, for The Ediscovery Pulse: Metrics You Need to Know, educational session in which a panel of experts dove into Kroll Ontrack’s first-of-its-kind Pulse Benchmarks.

If you are new to the Pulse Benchmarks, here’s a quick primer: Kroll Ontrack’s Pulse Benchmarks present aggregated and trended data from over 4,000 matters over a five-year span (2008-2012) to identify trends and key changes in the ediscovery market. Practitioners aiming to stay ahead of the curve can use these real-time metrics to cut time and costs on their ediscovery projects.

New Metric Shows Reviewers Per Project on the Decline

According to the age-old adage, time is money—especially when it comes to ediscovery. One of the largest concerns associated with Big Data and ediscovery stems from review, where teams of attorneys traditionally reviewed thousands of pages of documents, billing anywhere from $100 to $300 per hour (note: these estimates are conservative). It should come with little surprise that, according to the Rand Institute, the review phase accounts for a whopping 73 percent of ediscovery costs. As global data volumes nearly double every two years, more of same with regard to review is only going to drive that percentage (and the consequent cost of conducting review) up.

Thankfully, our newest Pulse Metric shows that the average number of reviewers per project decreased by 25 percent from 2010 to 2013. Whether that drop can be attributed to advanced technologies, savvier reviewers, or both, it’s definitely a step in the right direction. As practitioners are increasingly conscious of the bottom line in ediscovery, this number will hopefully continue to decrease as advanced and nuanced culling and review protocols are implemented in ediscovery projects of all sizes.

Thanks to advancing technologies such as predictive coding, fewer eyes are needed on every project. This decrease in the number of reviewers means significant savings in ediscovery expenses, and with litigants increasingly comfortable with leveraging advanced EDA techniques to cull data sets and predictive coding, this number could see a more substantial decrease in the next few years.

So, what do you think about the trend observed in this metric? Why do you think the number of reviewers per project dropped steadily from 2008 to 2012, and where do you expect this number to go in the next five years? Sound off in the comments below.

Want to know more Pulse Metrics? To dive further into all of the Pulse Benchmarks, be sure to view our previously recorded webinar, featuring Ontrack President and CEO Dean Hager with experts Eli Nelson and Wendy Butler Curtis.

February 2014 Ediscovery Case Summaries

Read the very latest ediscovery case law summaries

Opened, Web-based Emails Are “Electronic Storage” as Defined by the Stored Communications Act
Cheng v. Romo, 2013 WL 6814691 (D. Mass. Dec. 20, 2013).

Court Imposes Large Sanctions for Bad Faith Actions During Discovery
In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013).

“Promptness” of a Clawback Request for Inadvertent Disclosure Must Be Reasonable
RIPL Corp. v. Google Inc., 2013 WL 6632040 (W.D. Wash. Dec. 17, 2013).

Court Denies an Adverse Inference Absent Materiality
Cognex Corporation v. Microscan Systems, Inc., 2013 WL 6906221 (S.D.N.Y. Dec. 31, 2013).

Plaintiffs’ Attempt to Conceal Certain Text Messages Backfires
Calderon v. Corporacion Puertorriquena de Salud, 2014 WL 171599 (D. P. R. Jan. 16, 2014).