How the ‘Internet of Things’ Will Impact Ediscovery

by Michele Lange on March 11, 2014 in Ediscovery with No comments
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?

by Eric Robinson on March 3, 2014 in Ediscovery with No comments
pulse benchmarks

Staying ahead of the curve is everything in ediscovery, and the ediscovery.com 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 Ediscovery.com 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

by Thought Leadership Team on February 25, 2014 in Other with No comments
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).

Change is in the Air: Transforming Ediscovery From an Art to a Science

by Thought Leadership Team on February 24, 2014 in Ediscovery with No comments
ediscoverylogo_c2

Spring is just around the corner (hopefully), and change is in the air! Likewise, change is in the air in ediscovery. The ediscovery process is far from perfect, but continues to evolve and change despite facing compelling challenges. Perhaps the biggest challenge today is the vast amount of data that is being created. Fighting the frustrations of one project can be bad enough, but sweeping up the dust bunnies of multiple ediscovery projects at once can be overwhelming to manage. And, because this industry was founded on ediscovery matters being on a case-by-case basis, it is no wonder that changing the underlying technology, processes, and teams for each and every project typically results in both inconsistent and unpredictable ediscovery results.

With the launch of ediscovery.com, Kroll Ontrack is addressing this challenge head on. Our goal is to transform ediscovery from an art – something that is recreated with every project – to a science – something that is repeatable, predictable and efficient, with higher quality results.

At first blush, some may say it can’t be done. But it’s been done before… over and over in the technology industry… and the key is repeatability. David Yerich, Director of Ediscovery at UnitedHealth Group, agrees, stating that law is an art, but ediscovery shouldn’t be. “There are no two cases that are identical,” said Yerich. “However, ediscovery, which supports the practice of law, is a process that can be defined. Kroll Ontrack is on the path to helping customers refine this process to make it not only repeatable, but better with every project.”

From a process perspective, repeatability should be applied in three key areas:

1) First, organizations should be attempting to optimize their entire ediscovery portfolio – not each individual project;

2) Second, rather than directing projects through emails and phone calls, apply a more structured method of collaboration, one that is always available for quality checking and reuse;

3) And third, instead of viewing ediscovery as a series of linear steps where data is transferred from tool to tool, think of it as an integrated information continuum where the state of data simply changes depending on where you are in the process.

Ediscovery.com addresses these principles of repeatability by allowing organizations to manage ediscovery as a cohesive portfolio, not fragmented individual projects while data is kept in a single place, rather than distributing data across multiple applications and personnel. It is intelligent technology helping intelligent people make informed and intelligent decisions.

To learn more about how to transform ediscovery from an art to a science, check out ediscovery.com and the “From Art to Science” video.

Ediscovery Portfolio Tracking: Don’t Fall Asleep at the Wheel!

by Thought Leadership Team on February 20, 2014 in Ediscovery with No comments
Untitled

As we’ve stated before, many organizations and law firms spend a significant amount of time and money creating and recreating the ediscovery process as each case arises. Thankfully, the multi-matter management approach (also commonly referred to as cross-matter management or portfolio management) is building significant steam in ediscovery and presenting numerous opportunities to cut costs.

While it’s beyond the scope of this post to focus on an in-depth discussion of what multi-matter management entails, those who are unfamiliar should refer back to the wealth of valuable content providing an overview and in-depth discussion of its benefits, and technology that can help manage your ediscovery portfolio.  Broadly speaking, multi-matter management refers to implementing systems, processes and technology that allows litigation teams to address the bigger ediscovery picture by tracking projects and repurposing past work and/or data in similar matters.

We’d be lying if we said we were the first bloggers to compare some facet of ediscovery to an automobile , but your entire ediscovery process should nonetheless function like a well-maintained machine—regardless of the miles you’ve put on it. However, with so many pieces in place, tracking performance is often easier said than done, so what metrics should be on your ediscovery “dashboard” to ensure optimal performance?

Here is a top-down walkthrough of the critical items that should be tracked in your ediscovery “dashboard.” Whether you’re using a multi-matter management tool or diligently tracking them manually, you should regularly keep a pulse on these important metrics:

    1. Total spend: similar to your odometer, this metric gives a broad sense of the tread on your ediscovery portfolio’s tires. This metric serves as the “starting point” from which you dive deeper into your ediscovery.
    2. Portfolio spend: while your total spend offers a broad snapshot of your ediscovery expenditures, a breakdown of expenses at the portfolio level provides valuable insight to your spend at various stages of litigation. There’s also value in breaking down the spend in each phase by case, which further allows you to compare and contrast how much each project is billing for various phases of the EDRM.
    3. Project metrics: As you start diving into project-specific financials, there is additional value in tracking several metrics within each project, such as:a. Source GBs
      b. GBs in review
      c. Filtering rate
      d. Deduplication rate
      e. Keyword hit rate
      f. Spend per custodian

      While this isn’t an exhaustive list of the metrics you should be tracking at the project level, tracking these metrics across the portfolio will allow greater opportunities to compare and contrast each project.

    4. Custodian metrics: Finally, tracking many of those project-level metrics, such as keyword efficacy and filtering rates, at the custodian level can help pinpoint  irregularities and identify opportunities to improve the efficiency of your ediscovery project.

To help you visualize your ediscovery portfolio in a dashboard, check out our latest infographic, and stay tuned to ediscovery.com Pulse to keep pace with metrics across a larger sample size.

International Ediscovery: Best Practices Around the World

by Brian Meegan on February 19, 2014 in Ediscovery, International Ediscovery with No comments
International Ediscovery

Over six thousand athletes from eighty-five countries have gathered to compete. When you sit down to watch the events, remember that behind every flag is a unique legal system, with diverse privacy laws and ediscovery rubrics. As these laws become increasingly intertwined, legal professionals – like athletes – must constantly push themselves to manage international ediscovery in the digital age.

United States

A central theme in American discovery is that the search for truth in litigation outweighs individual privacy concerns, with the exception of personally identifiable information. The 2006 amendments to the Federal Rules of Civil Procedure are the heart of ediscovery, namely Federal Rules 26 and 34 which define electronically stored information (ESI) as a discoverable source of information. There are new proposed amendments to Rules 26 and 37 on the ediscovery horizon in 2014.

Guided by few appellate decisions, US district courts and magistrate judges are the architects behind an expansive body of ediscovery case law. Proportionality (barring unduly burdensome ESI production and preservation) and cooperation (mandating party-to-party ESI discourse early) are defining facets of American ediscovery. In 2013, courts have expressed unrivalled legal-technological proficiency by tackling several complex ediscovery issues: taxation of ediscovery costs,1 the role of wilfulness in the duty to preserve,2 and marrying smart technology with document processing and review.3

England and Wales

The shifting tides of ediscovery impact both sides of the Atlantic. In the UK, Civil Procedure Rule 31 governs disclosure. Its counterpart, Practice Direction 31B, is the primary source for coping with issues like the preservation of ESI, defining a “reasonable search,” and assessing the level of party communication required before the case management conference.

The UK takes a fundamentally different approach to discovery than the US. While US courts seek to produce all relevant documents to a case, CPR 31.5(7) limits disclosure in the UK “to that which is necessary to deal with the case justly.” Courts in England and Wales now have a “menu” of options for disclosure, which range from no disclosure to full blown train of enquiry disclosure with issues-based disclosure and reliance-based disclosure somewhere in between.

The European Union

The EU Data Protection Directive 95/46/EC (“the Directive”) mandates signatory countries to implement laws restricting the processing of “personal data”—information “relating to an identified or identifiable” person. Moreover, the Directive bars the transfer of personal data to non-EU states unless the country provides for “adequate protection” of personal data and marks a significant detour from the American approach to data protection.4

In 2012, the European Commission proposed a comprehensive reform to the Directive to protect “the fundamental right of data protection and to guarantee the free flow of personal data between Member States.”5 Set to take effect in 2015, the new data protection regime bolsters the rights of data subjects, imposes heightened obligations on organizations and strengthens enforcement measures. This rubric, combined with many civil law systems, provides for minimal discovery of ESI in EU litigation. Coupled with several countries adopting blocking statutes to prevent the transfer of personal data across borders, these new protection laws also create tension with the US Federal Rules of Civil Procedure, which seek to produce all relevant electronic records.

Canada

Throughout the Canadian provinces, the 2008 Sedona Conference® Publication, The Sedona Canada Principles, has provided an impetus for developing ediscovery rulemaking. For example, the Ontario Rules of Civil Procedure make an explicit call for cooperation and a meet and confer conference when discussing discoverability of electronic data. Further, they require counsel to consult with The Sedona Canada Principles.

However, following the footprints of the EU, Canada has taken a rigorous approach to data protection regulation at the legislative level. Private sector data use is controlled by the Personal information Protection and Electronic Documents Act, a federal privacy law designed to “support and promote electronic commerce by protecting personal information that is collected, used or disclosed.”

Asia (APAC)

Ediscovery law in APAC is evolving at the speed of light. Some countries have passed ediscovery guidelines (e.g., Singapore); however, many countries, like South Korea and Japan, are still considering implementing ediscovery laws. In the APAC region, ediscovery largely impacts international companies with US-based litigation and antitrust concerns. Local counsel and local service providers can provide immense value when attempting to successfully collect data in the region, while navigating the vast legal system differences.
As the market continues to blast through geographic boundaries, watch for countries to continue to parse their existing rules against the demands of litigation, develop laws that cushion these changes, and shift the burden of knowledge to attorneys engaging in international data discovery. It is only a matter of time before a case on your docket, in your firm or on your desk involves multinational discovery laws. Also, for a deeper dive into APAC ediscovery, view this previously recorded Kroll Ontrack/eDJ webinar, Ediscovery in Asia: What U.S. Legal Professionals Need to Know.

1 See Gabriel Tech. Corp. v. Qualcomm Inc., 2013 WL 410103 (S.D.Cal. Feb. 1, 2013).
2 See Moore v. Citgo Co., LP, 735 F.3d 309 (5th Cir. 2013).
3 See Gordon v. Kaleida Health, 2013 WL 2250579 (W.D.N.Y. May 21, 2013).
4 American data protection law involves a concoction of legislation (e.g., the Fair Credit Reporting Act), self-regulation, and industry regulation.
5 Available: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012PC0010:
en:NOT

The Sights and Sounds of LTNY

by Michele Lange on February 11, 2014 in Ediscovery with No comments

Legal Tech New York was another glowing success this year! Thousands of ediscovery practitioners and experts attended, and every big name in legal technology was present. From Kroll Ontrack’s Brilliance Party, filled with lights and refreshments, to the hundreds of booths showing off the newest advancements in technology, the conference was packed. Each day, speakers discussed ways to move forward in the legal technology industry.

Experience the sights and sounds of LTNY 2014 with us here in our highlight video!

Trekking Through LegalTech: Day Two

by Michele Lange on February 6, 2014 in Ediscovery with Comments Off
LTNY Day 1

While the snow and ice could have put a serious damper on day two’s events at LTNY 2014, it soon became clear that attendees were willing to brave the elements when the first keynote of the day went ‘standing room only.’ But I suppose that’s exactly what one should expect when Judges  James Francis, Shira Scheindlin, Andrew Peck, and John Facciola get together to talk about everything from the bring your own device (BYOD) phenomenon to predictive coding and Federal Rules amendments. The rest of the day brought a frenzy of educational tracks and exhibits, culminating in several core themes that defined day two at LTNY 2014:

Predictive Coding – While the number of panels dedicated to predictive coding was notably less than in 2013, the subject nonetheless captured the attention of what felt like at least half of the educational presentations. But it wasn’t the same old song and dance from 2012 or 2013. With some sessions spreading scepticism (i.e., The End of Predictive Coding) and a handful digging into the details (i.e., Have We Reached a “John Henry” Moment in Evidentiary Search),   it was clear that the reoccurring themes around predictive coding are evolving away from the theoretical and more toward the practical, as evidenced by some of the most techie individuals taking interest in LTNY.

Information Governance – If they weren’t talking about predictive coding, chances are attendees and exhibitors were talking about information governance (IG).  IG was definitely the topic de jour at LTNY 2014, with some reporting that as many as 14 sessions  dedicated to this emerging topic alone.  As one panellist put it, “It is time for lawyers to become IG experts.” Perhaps not surprisingly, the bevy of experts dwelling on marrying ediscovery and IG best practices coincided with a wave of press releases surrounding IG offerings; it remains to be seen when, and if, this “dealing with big data” fad transitions from conjecture to reality. To give you a flavor of the discussion, here’s just a smattering of the educational sessions that concentrated on IG at LTNY 2014:

  • Advice from Counsel: One Small Step for E-Discovery, a Giant Leap for Information Governance?
  • Information Governance: Taking Your Organization to the Next Level
  • Jumpstart Your Information Governance Strategy by Taking Control of Dark Data
  • Is the Best Defense a Good Offense? Proactively Manage Information Governance to Control Ediscovery
  • Information Governance: Rightsizing Your Program to Get Funding and Succeed

Ediscovery for small and medium-sized businesses (SMBs) – A seemingly promising growth sector in the IT-law industry is ediscovery for SMBs. As more and more SMBs and non-Amlaw 200 law firms are exploring comprehensive ediscovery solutions in attempts to reign-in litigation spend. As exemplified by announcements at the show, such as those from HP Autonomy, Recommind and Kroll Ontrack adding Relativity to the ediscovery.com product suite, many providers are determined to bring ediscovery into focus for smaller firms ready to infuse practice with technology.

Pricing – Several product offerings addressed the notion that organizations want to purchase ediscovery solutions in a more predictable manner. New pricing models, like those offered by Catalyst and Kroll Ontrack, seek to offer more digestible, repeatable alternatives outside the confines of per matter or a la carte pricing, and you could see LTNY attendees’ brain-wheels turning, calculating new methods for purchasing ediscovery technology.

Chock-full of educational tracks and exhibits, it was a great but tiring second day at LegalTech. As always, check back at the theediscoveryblog.com for more info as we round off our coverage of LTNY 2014!

Trekking Through LegalTech: Day One

by Michele Lange on February 5, 2014 in Ediscovery with Comments Off
LTNY Day 1

I’ve been coming to LegalTech for more than ten years, and really, I thought I’d seen it all. Well, not this year. Perhaps it’s no surprise that social media is the weapon of choice for communicating among us IT-law junkies, but with 2,181 tweets aimed at #LTNY so far, I think it’s safe to say that Twitter is the tie that binds @ LTNY 2014. And what better way to recap the highlights from day one of LTNY than by counting down the day’s top tweets?

Exhibitor hall photos – LexBlog Network was kind enough to collect and share a gallery of photos highlighting vendor offerings at Exhibition Hall via their tweet, “Where to Go and What to Do at LegalTech: A Quick Look Around the Exhibitor Halls.”

Live twitter wall – No seriously, Twitter is a theme at LTNY this year. Here’s a pic of the live Twitter wall LexisNexis unveiled for those who really wanted a pulse on the action (as tweeted by user @nuxnix from earlier in the day).

Over-the-top frills – As put by Identify.com, “[a]n oxygen bar, cupcake dispenser and a froyo machine at #LegalTech booths today. Who says legal is boring?” As in years past, vendors went to the extreme to make a splash. One unique offering I hadn’t seen before was the complimentary headshot photo booth from Integreon.

Really over-the-top frills – But I think the most… progressive (?) vendor giveaway had to be from Colorado-based Catalyst. As tweeted by Bob Ambrogi, “Best #ltny give-away: rolling papers from Denver-based @CatalystSecure.”

Celebrity sightings – Yes, even the famous got caught up in the buzz surrounding day one of LTNY 2014. As tweeted by Legal Tech Show (LTNY): “#LTNY George Clooney at Ziegfeld premier of Monuments Man across from Hilton NY @GeorgeClooney – stop by LegalTech!”

As for Kroll Ontrack’s doings: the Kroll Ontrack welcome reception cocktail party and ediscovery.com robot pens were huge hits! But perhaps the most discussed topic of the day was the snow and ice that has arrived just in time for day two of #LTNY. For day one, that’s a wrap—be sure to stay tuned for more coverage at www.theediscoveryblog.com.

Making Music: Ediscovery Collaboration

by Michele Lange on February 3, 2014 in Ediscovery with Comments Off
making music ediscovery collaboration

From a hip-hop country mix “Cruise,” to the smash hit “Thrift Shop,” 2013 was a year of musical collaborations. Nevertheless, collaborations are not new: from Sinatra’s Duets to Dolly Parton and Kenny Rogers’ “Islands in the Stream,” collaborations are a staple in pop culture. The reason behind this is while a solo artist can create beautiful music, the harmony of two contrasting voices generates a unique and compelling sound.

Great collaborations, however, are not limited to stadiums and Grammies. Since the beginning of ediscovery, collaborations, in the form of mergers, acquisitions and partnerships, have been an industry staple. It is through these partnerships that the industry moves forward. Like pop culture collaborations, two ediscovery providers working together can create beautiful music.

In ediscovery, it is not uncommon to think of ediscovery tools in a vacuum, serving a niche of the EDRM – such as a singular review program – that solves only one piece of the puzzle. These tools are unconnected, operating apart from one another, as so many musicians do for years.  For this reason, law firms and corporations often have more than one ediscovery tool at their disposal. They often run more than one software package at the same time, trying to patch together a full solution. There is no streamlined, standardized way to use different tools together. This problem has led to a push for better visibility across all tools and cases to allow consolidation of work across the ediscovery portfolio.

This is the exact reason that today, Kroll Ontrack announced it is now a Premium Hosting Partner for kCura’s Relativity platform.  kCura’s Relativity review tool will now be offered as part of Kroll Ontrack’s ediscovery.com platform alongside the ediscovery.com Collect, Review and Manage tools. The joint venture gives law firms and corporations review tool choice based on the needs of the project while also making it easier to consolidate their project portfolio. Regardless of the chosen review tool , transparency into all the work being done on your cases, as well as the ability to direct actions, is possible via the ediscovery.com Manage Project Wall. With the ability to bring together ediscovery projects in a unified technology platform and manage them as a portfolio, ediscovery can transform from an art to a science. This kind of collaboration is, like some musical collaboration, pure genius.

In the above montage, from upper left, clockwise:
Colbie Callait & Jason Mraz; David Bowie & Mick Jagger; Louis Armstrong & Ella Fitzgerald; Frank Sinatra & Dean Martin; Mariah Carey & Whitney Houston; Paul McCartney & Michael Jackson; Macklemore & Ryan Lewis; Justin Timberlake & Jay-Z; Dolly Parton & Kenny Rogers
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