July 2014 Ediscovery Case Summaries

ediscovery case studies

Orders Are Not Obsolete Unless the Court Says So
HM Elecs., Inc. v. R.F. Techs., Inc., 2014 WL 3014660 (S.D. Cal. July 3, 2014).

Court Encourages a More Cooperative Discovery Plan
Life Plans, Inc. v. Sec. Life of Denver Ins. Co., 2014 WL 2879881 (N.D. Ill. June 25, 2014).

Court Slaps Stonewalling Defendant with Sanctions
Brown v. Tellermate Holdings Ltd., 2014 WL 2987051 (S.D. Ohio July 1, 2014).

Court Denies Mirror-Imaging as a Disproportionate Discovery Method
Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415 (W.D. Va. June 2, 2014).

Court Does Not Find a Waiver Where Computer is Sold at Auction
Kyko Global, Inc. v. Prithvi Info. Solutions, Ltd., 2014 WL 2694236(W.D. Wash. June 13, 2014).

New Pulse Benchmarks Demonstrate Trends in Source Media and Deduplication


Don’t miss a beat; the new Pulse Benchmarks are here! These metrics can help practitioners keep up with trends in the ediscovery market and better plan and execute their ediscovery projects. If you’re new to ediscovery.com Pulse, here’s a quick overview: 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. Our two new Benchmarks cover interesting trends in types of source media and deduplication review volumes. To see the two new Benchmarks, please download the report.

Types of source media fluctuate as ediscovery processing becomes standardized

Understanding what data goes into a project is important to getting to the information you need. Source data for ediscovery processing can be transmitted in many formats, but data from the Pulse Benchmarks has indicated a trend away from data being transmitted on CDs/DVDs and more data being transmitted via electronic file transfer (or FTPs).

Deduplication rates rise to reduce review volumes

Cutting time and costs is what technology assisted review (TAR) is all about, and one of the important tools used in TAR is deduplication. Deduplication is the process of comparing documents based on characteristics and removing duplicate records from the data set. This process can either be leveraged on the entire data set (project level deduplication) or a subset of data (such as custodian deduplication). This Pulse Benchmark indicates that project level deduplication selections are on the rise, marking a trend toward efforts to drive down review set volumes to cut time and costs.

What do you think about the trends outlined by the new Pulse Benchmarks? Why do you think source data is move away from CDs/DVDs and toward FTPs and why do you think deduplication is being used more and more on a project level basis? Where do you expect these numbers to be in the coming years? Let us know in the comments below!

Want to know more Pulse Benchmarks? Be sure to check out the full list on ediscovery.com/Pulse or view our previously recorded webinar, featuring ediscovery experts Eli Nelson and Wendy Butler Curtis.

Kroll Ontrack Client Services – A Recipe for the Success

client services

There is always a great recipe behind every signature dish. For Kroll Ontrack Client Services, it entails a huge dash of experience and gigantic pinch of collaboration. Kroll Ontrack finds success when it comes to client services because it offers a systematic, transparent and a repeatable services approach to ediscovery management. Also, they are continuously improving and striving to ensure the best possible outcome for any ediscovery matter.

The hardworking group of people that make up client services have extensive experience and knowledge of the industry, Kroll Ontrack, and client. They have advanced degrees, certifications and widespread training on all the services provided to ensure the client is always the number one priority. In addition, unique Kroll Ontrack practices such as the utilization of the Project Wall and Unified Solutions Team approach ensures the client gets what they want, when they want it.

Hear directly from the Kroll Ontrack client services as they talk about the ingredients used in the recipe for success:

-          The importance of experience and having intimate familiarity of the client’s issue, Kroll Ontrack and the industry

-          The unified solutions team approach and how it benefits the client

-          The transparent collaboration and communication through the Project Wall

If you are interested in hearing a more in-depth discussion on the benefits of client services, please watch the video online now. Also catch the recent client services webinar to learn even more about how Kroll Ontrack works for you.

As always, stay tuned to The Ediscovery Blog to find out the latest news ediscovery.

Part II – FRCP Amendments: The Long and Winding Road


After a few twists and turns, we can finally say that there is light at the end of the tunnel and  amendments to the Federal Rules of Civil Procedure (FRCP) are nearing completion.  On May 29 and 30, the Committee on Rules of Practice and Procedure (the “Standing Committee”) adopted the proposed FRCP amendments.

To say the least, this was not the quickest or easiest process, but, with most of it behind us, we are almost finished. The next stop along this trek is the Judicial Conference in September, then the Supreme Court of the United States shortly thereafter, and finally Congress.  If all goes as planned, and it usually does after this point in the journey (fingers crossed), the new rules will go into effect December 1, 2015.

The Hot Ticket Item: Rule 37(e) – Failure to Preserve

The most noted and widely debated rule amendment is the complete overhaul of Rule 37(e).  As previously discussed in FRCP Amendments: The Long and Winding Road, Rule 37(e) has had quite the transformative journey. The new Rule 37(e) entirely replaces the original version and was unanimously approved by the Standing Committee.

The revised rule is designed to ensure a more uniform response from Federal Courts regarding the loss of Electronically Stored Information (ESI). The rule, broken into two sections, gives courts power to undertake “measures” – AKA sanctions and other similar procedures – when a party loses ESI because they failed to take “reasonable steps” to preserve it during the anticipation of impending litigation.

The first section, Section 37(e)(1), allows a court to take measures when a party is prejudiced by the opposing party’s loss of ESI. The court is permitted to take reasonable action that sufficiently cures the party’s prejudice even though the loss of the ESI may not have been the opposing party’s fault.

Similarly, the second section, Section 37(e)(2), authorizes a court to take measures when a party intentionally loses ESI.  However, it does not require a showing of prejudice to the adverse party. The court can assume that the ESI was unfavorable, instruct the jury that the ESI was unfavorable, or grant default judgment or dismiss the case.

Section 37(e)(1) and Section 37(e)(2) are not alternatives to one another and can both be used in combination by the court if necessary.  Overall, Rule 37(e) will offer more uniformity in the measures Federal Courts take when a party fails to preserve ESI.

Ediscovery Related Amendments: Rules 1 and 26

Other rule amendments relevant to  ediscovery  are Rule 1 and Rule 26. Rule 1 was amended to stress the importance of cooperation between adverse parties and the court to promote a “just, speedy, and inexpensive” resolution to every action and case. Additionally, the newly revised Rule 26(b)(1) aims to ensure that the scope of discovery is proportional and relevant to the case. By combining Rule 26(b)(2)(c)(iii) with Rule 26(b)(1), the importance of an appropriate scope is emphasized and will no longer be easily overlooked.

Additional Amendments: Rules 4, 16, and 34

Amendments to Rules 4, 16, and 34 were also adopted by the Standing Committee during the May 2014 meeting. For a full draft of the entire amended rules package – including the previously discussed rules – see Tom Allman’s latest FRCP amendments treatise. Tom is a former general counsel, current adjunct law professor, and foremost ediscovery rules guru, and with his permission, Kroll Ontrack has posted Tom’s paper for our blog readers’ enlightenment.

Before we know it, December 1, 2015, will be here and we will have a whole new set of FRCP guidelines for ediscovery.  With that said, stay tuned to theediscoveryblog.com and ediscovery.com for all the latest developments on the FRCP amendments and ediscovery.

June 2014 Ediscovery Case Summaries

ediscovery case studies

Court Denies Expansive ESI Protocol and Suggests Predictive Coding
FDIC v. Bowden, 2014 WL 2548137 (S.D. Ga. June 6, 2014).

Information Extraction Difficulties Not an Excuse to Halt Document Production
Stallings v. City of Johnston City, 2014 WL 2061669 (S.D. Ill. May 19, 2014).

Court Awards Only a Fraction of the ESI Costs Sought
Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC, 2014 WL 1729152 (E.D. Mo. May 1, 2014).

Court Rejects Unilateral Decision to Utilize Predictive Coding
Progressive Casualty Insurance Company v. Delaney, 2014 WL 2112927 (D. Nev. May 20, 2014).

Cost-Shifting Ordered after Determining Electronic Material Beneficial to Both Parties
Zeller v. S. Cent. Emerg’y Med. Servs. Inc., 2014 WL 2094340 (M.D. Pa. May 20, 2014).

Extra! Extra! The Results Are In: 2014 Ediscovery Magic Quadrant


The wait is over. We somehow made it through the long winter’s polar vortex, the spring’s torrential rain fall, and now, the big summer announcement that we have all been waiting for is finally here! Industry analyst, Gartner, has released its annual report, “2014 Magic Quadrant for E-Discovery Software”.

Partly, a “state of the union” and partly a provider evaluation, the report provides excellent insight into the industry’s current trends and future outlook. As in years past, Gartner evaluates providers by placing them in one of four quadrants – leaders, challengers, niche players, and visionaries. This year, Gartner evaluated 22 ediscovery software players on their ability to execute and completeness of vision, with 9 providers – including Kroll Ontrack – falling into the coveted Leaders quadrant. In addition, Gartner forecasted the ediscovery software market to grow from $1.8 billion in 2014 to $3.1 billion in 2018 because of increasing volumes of litigation and regulatory investigations and the always expanding volume of ESI. Lastly, Gartner discussed the ever changing buyer requirements in the ediscovery market. From full EDRM functionality and more sophisticated ways of understanding growing datasets, to transparent, simple pricing and links between ediscovery and cybersecurity offerings – Gartner advised that vendors stay on top of constant evolutions in ediscovery. With Gartner’s prominence and brand recognition, this Magic Quadrant is certainly one that corporations (and to some extent law firms too) turn to for guidance in ediscovery purchasing decisions.

As I look upon the time since the last Gartner Magic Quadrant, it has been a blockbuster twelve months for Kroll Ontrack with the launch of ediscovery.com. This hard work is reflected in Gartner’s evaluation, and once again, Kroll Ontrack was placed in the Leader’s Quadrant. According to Gartner, those in the premier Leader’s Quadrant “execute well against their current vision and are well positioned for tomorrow.” Kroll Ontrack was specifically recognized for its “compelling vision” and “flexible and reliable solutions”.

Check out the complete, downloadable copy of the 2014 Magic Quadrant for E-discovery Software at ediscovery.com.

Ediscovery 2014 Mid-Year Update: What’s Trending Now


The sun is shining, the birds are chirping, and the polar vortex is slowly becoming a distant memory. July 4th is just around the corner and that means we are almost half-way through the year – just in time for a mid-year update on the latest trends in ediscovery!

This week I was invited by an Am Law 100 law firm to provide its practice support team with an update on the latest ediscovery trends for 2014. When I was preparing for my presentation, I realized how quickly the trends in ediscovery evolve and discovered that the latest trends are different now than they were only 6 months ago. For example, many of the CLE sessions Legal Tech New York in February anticipated that predictive coding and information governance were going to be the hottest trending topics in 2014. As we reach the mid-point of 2014, these two topics and more are what’s hot in ediscovery. The top 5 currently trending areas in ediscovery are:

1) Predictive Coding – Predictive Coding is being used on an increasing number of ediscovery projects. It reduces litigation expenditures and is a great resource for both small and large ediscovery proceedings.

2) Data Triage – Downward cost pressures are driving new EDA and document review practices. Searching strategies are shifting which forces innovative and creative ediscovery practices.

3) Portfolio Management – Ediscovery services and software are being purchased at the portfolio level to curb costs. Buying patterns are changing resulting in more fixed-cost and subscription pricing models.

4) Information Governance – Big data is king and causing struggle now more than ever for corporations. The interplay of ESI and big data is still a conundrum for a large number of companies.

5) FRCP – US Civil Procedure Rules are likely to change in December 2015.  With two major hurdles down and three to go in the amendment process, by 2015 there will be new versions of Rules 1, 4, 16, 26, 34, and 37.

To view my entire presentation, visit Kroll Ontrack’s SlideShare site. Also, for all the latest trends in the ediscovery world watch for developments on Kroll Ontrack’s Ediscovery Blog and website. Furthermore, our most recent webinar, A Day in the Life of an Ediscovery Case Manager, is now available. Enjoy!

Ediscovery.com Review Challenge: Test Your Genius and Win!


Do you have a small matter, a big case, or something in between? Do you have databases that are cluttered with non-critical data? Are you looking for an innovative way to focus on the most relevant documents and procure accurate results while saving time and money? Ediscovery.com Review is the tool for you.

Ediscovery.com Review by Kroll Ontrack delivers fast and accurate results. It is an effective solution to conduct initial data assessment, analysis, review, and document production within a centralized platform. It was also recently awarded “Best Predictive Coding Solution” from a recent National Law Journal survey. Bottom line, big or small, ediscovery.com Review is the go-to review tool.

If you are not familiar with the cutting-edge features offered by ediscovery.com Review, now is the time to take the plunge!  Check out our interactive challenge, which gives you a quick glimpse into the key aspects of the all-in-one ediscovery document review tool that puts you in control.

So…what are you waiting for? Take the challenge to learn something new about ediscovery or strengthen the knowledge you already have. And, if you do, you could win a Bose SoundLink Mini Bluetooth Speaker. Busy? Not a problem – we made the quiz fun and easy. So take a break from your hectic day and sit back, relax, and win. Good luck!

The Latest ESI Report


In case you missed it, tune into the latest edition of the ESI Report at ediscovery.com which features two ediscovery experts discussing technology assisted review (TAR) and predictive coding. Recently, Cliff Nichols of Day Pitney and Tony Reichenberger of Kroll Ontrack joined the ESI Report for a conversation on a pay-to-play matter they worked on together, New Mexico State Investment Council v. Bland, 2014 WL 772860 (N.M. Dist. Ct. Feb. 12, 2014). Cliff and Tony executed an investigation leveraging TAR and predictive coding for the case.  This podcast includes an in-depth examination into the inner workings of the investigation.

Check out the podcast, which covers topics including the judge’s decision, the background of the case, the process by which Cliff and Tony decided to use and implement TAR and predictive coding in the investigation, and how they successfully used the technology. For an even deeper dive into the details of this case, be sure to also check out the case study  on this pay-to-play matter at ediscovery.com.

Like a Rollercoaster Ride: A Day in the Life of an Ediscovery Case Manager

ediscovery case manager

Ediscovery is a hectic arena, where law and technology intersect to provide solutions to complex litigation challenges.  From millions of documents, to tight production deadlines, no one understands the realities of the ediscovery frenzy better than an ediscovery case manager.  Whether based at a law firm, corporation or an ediscovery provider, case managers are the people in the trenches, helping guide an ediscovery project through the ups and downs.

Knowing the basics, do you ever wonder what it would be like to step into the shoes of an ediscovery case manager for a day? Hold on tight and imagine being on a rollercoaster ride because it will be an action packed and exciting day full of twists and turns.  It involves one-on-one client interactions built from solid foundational relationships, solving unique problems and thinking outside the box to arrive at custom solutions, and tackling and mitigating challenging situations as they arise to find innovative ways to avoid challenges in the future.

Kroll Ontrack ediscovery case managers have extensive knowledge and experience within the fields of ediscovery and client services to help them undertake a typical day.  They have advanced degrees, certifications and widespread training on all of the services provided to ensure the client is always the number one priority. Additionally, our case managers are supported by unique Kroll Ontrack practices that help them successfully manage client projects and accounts.

Hear from Kroll Ontrack ediscovery case managers as they talk about:

  • Establishing and maintaining successful and lasting client relationships
  • The benefits of having a personal case manager assigned to a project or account
  • How to handle challenging situations and avoid them in the future
  • Practices that are unique to Kroll Ontrack and how these practices  benefit the client

If you’re interested in hearing a more in­-depth discussion on the typical day of a Kroll Ontrack ediscovery case manager, register for our upcoming webinar, “A Day in the Life of an Ediscovery Case Manager,” on June 4, presented by Kroll Ontrack and ACEDS.  Also, stay tuned to The Ediscovery Blog to find out the latest news in the field of ediscovery.