Lingering Ediscovery Worries? Check With a Pro

Unexpected investigations, compliance violations and discovery sanctions are just a few of the difficulties that corporate counsel must contend with if the realities of ediscovery are ignored. If you have ever found yourself wondering how your organization would fare faced with a duty to produce electronic documents in a legal matter, Kroll Ontrack has a solution: an “Ediscovery Pre-Check” with an ediscovery or information governance pro(fessional).

Consultant Profiles for Every Ediscovery Scenario

Through its years of assisting organizations faced with data management through document production, Kroll Ontrack has assembled a top-tier team of experienced consultants. Our experts have run the gamut on everything from legal holds to proactive ediscovery planning; from information governance to antitrust second requests.

Check out each of their biographies to match your needs to an ediscovery professional’s background. These profiles not only explain how our experts can help you, but also include an inside glimpse to their previous work, trends they are watching and what motivates them to be the best in their field.

When you find a consultant that fits your needs, send them a note – they would be happy to speak with you!  In fact, over the next couple of months, Kroll Ontrack is offering a free “Ediscovery Pre-Check” – an advisory appointment with any of these consultants.  They will conduct a brief evaluation of your greatest ediscovery and infogov hotspots and provide you with a short synopsis of your organization’s greatest risks and opportunities.  Take advantage of this opportunity to answer your lingering questions.

Your Ediscovery Pro

  • Do you need help navigating a matter with multiple parties and millions of documents? Check in with Cathleen P. Peterson, the Complex Matters Pro.
  • Do you need help with retrieving deleted or encrypted data? Check in with Jason Bergerson, the Computer Forensics Pro.
  • Do you need help using predictive coding to respond to a document request? Check in with Karen Wagshul, the Analytics and Predictive Coding Pro.
  • Do you need help with a DOJ or FTC request? Check in with John Pilznienski, the Second Requests Pro.
  • Do you need help with preservation or implementing a legal hold? Check in with Jackie Warner, the Legal Hold Pro.
  • Do you need help identifying custodians and collecting the data? Check in with Nick Pietig, the Collections Pro.
  • Do you need help with data management and discovery readiness? Check in with Tom Barce, the Information Governance Pro.
  • Do you need help with knowing which data your organization can delete, and which should be saved? Check in with Vikas Pall, the Ediscovery Assessments Pro.

Smart organizations know their ediscovery hotspots and regularly fine tune their protocols. When was your organization’s last check-in?

October 2016 Ediscovery Case Summaries

ediscovery case summaries

Court Clarifies that Data Must be Permanently Deleted for Sanctions
Erhart v. BofI Holding, Inc., 2016 U.S. Dist. LEXIS 129906 (S.D. Cal. Sept. 21, 2016)

Court Issues a Cornucopia of Sanctions for Discovery Violations
Arrowhead Capital Fin., Ltd. v. Seven Arts Entm’t, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016)

Court Compels Party to Identify Knowledgeable IT Personnel
Collins v. St. Paul Fire & Marine Ins. Co., 2016 U.S. Dist. LEXIS 135615 (D. S.D. Sept. 30, 2016)

Court Orders Party to Attempt On-Site Data Collection
Sky Med. Supply Inc. v. SCS Support Claim Servs., 2016 U.S. Dist. LEXIS 121215 (E.D.N.Y. Sept. 7, 2016)

Court Discusses What Constitutes Reasonable Steps for Preserving Text Messages
Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016)

Fall is the Time for Fests!


The chill in the air, the pumpkin spice lattes and the plethora of fests mean only one thing: fall has arrived. Fall is the time of year for all things “fest,” as Oktoberfests, Harvest Fests, Apple Fests and more fill our calendars. For the ediscovery community, Relativity Fest is another reason to celebrate this time of year.

The Ediscovery Fest of the Year

Relativity Fest is a greatly anticipated event in the ediscovery community and this year it kicks off in Chicago on Sunday night, October 9.

Kroll Ontrack will be there en masse. We are excited to once again send a contingent of people to brush up on their RCEs (Relativity Continuing Education credits). And several of Kroll Ontrack experts will speak at these sessions, providing a unique opportunity to share their experiences:

More Reasons to Celebrate: Chicago Review Center & Corporate Legal Projects

It wouldn’t be Fest without a party! Some of the most extravagant parties are hosted by kCura, but Kroll Ontrack has its own reason to celebrate in Chicago, adding to the fun by hosting a pre-party happy hour on Monday the 10th.

Kroll Ontrack is celebrating the launch of its new Corporate Legal Projects offering. From time to time, a transaction, merger, or regulatory change may require that a modification be made to a body of corporate contracts. This change often involves collection, extraction, analysis, disposition and repapering of contracts or other corporate documents. Kroll Ontrack understands that these complex legal projects are better managed by process experts – experienced professionals who take a methodical, defined approach to contract review. This is the foundation for our Corporate Legal Projects solution.

Also, recently, Kroll Ontrack opened a new document review center in Chicago to streamline the contract review and document review processes. The new Chicago center, which joins several other Kroll Ontrack review centers around the world, contains:

  • 12,800 sq. ft. – ready to be deployed for your next review project;
  • Space for 130+ reviewers;
  • Three conference rooms for review training; and
  • Offices for visiting attorneys and clients.

There is no better time to celebrate these new offerings than with a party at Relativity Fest. After a long day of keynotes, workshops and breakout sessions, you’re going to want a drink and some food before you head out to kCura’s evening bash. We’ll have it all at the 720 South Bar & Grill (in the Hilton lobby) on Monday, October 10 from 5:30 – 7:30 PM. If you are attending Relativity Fest, stop by and celebrate with us!

Cheers to Fall and Fests!

September 2016 Ediscovery Case Summaries

ediscovery case summaries

Court Will Not Force Responding Party to Use TAR; Judge Peck Authors another Key Predictive Coding Opinion
Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016)

Proportionality Factors Persuade Court to Grant Motion to Compel
First Niagara Risk Mgmt. v. Folino, 2016 U.S. Dist. LEXIS 106094 (E.D. Pa. Aug. 11, 2016)

Court Limits Request for Social Media to Certain Relevant Information
Baxter v. Anderson, 2016 U.S. Dist. LEXIS 110687 (M.D. La. Aug. 18, 2016)

Court Holds that Predictive Coding Does Not Change Discovery Standard
Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, No. 2685-11, 8393-12, 2016 WL 4204067 (T.C. July 13, 2016)

Court Refuses to Compel Production of Archived Emails on Backup Tape
Elkharwily v. Franciscan Health Sys., 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016)

An Ediscovery Attorney and a Healthcare Security Manager Walk into a Webinar


What do an ediscovery attorney, a forensics investigator and a healthcare security manager have in common? In today’s digital age – everything. 


Kroll Ontrack’s most recent webinar, How To Develop a Data Preservation & Collection Plan in Preparation for Litigation, hosted by Healthcare Informatics, gave attendees a hard look into the challenges healthcare organizations face when a government investigation or civil litigation arises.

Kroll Ontrack SVP of consulting Cathleen Peterson and healthcare security manager Brian Abel put their own professional experiences on display as they navigated this challenging intersection between healthcare, law and technology.


Truth is, an ediscovery attorney, a forensics investigator and a healthcare security manager have a lot in common. Today’s healthcare organizations are traversing a new information technology terrain. Growing data volumes, increased information security threats, vast data collection efforts and computer forensics investigations require a higher level of comprehension from all experts.

As Brian and Cathleen discussed via a real-world case study, legal, regulatory and compliance requirements are requiring hospitals and healthcare organizations to properly handle electronically stored information (ESI), or face severe consequences. At the end of the day, this new territory is where technologists meet attorneys and data managers meet security professionals.  If your job involves any of these important roles, you will benefit from spending 60 minutes with this new webinar recording.

Soft Data, Warm Data, Little Thread of Emails: The Big Bang Theory Meets ILTACon


The hit CBS show, The Big Bang Theory, returns this month and fans are eagerly awaiting developments with each character’s storyline – from relationships between Leonard, Penny, Sheldon and Amy to the impending arrival of baby Wolowitz (which may interfere with the gang’s annual Comic-Con plans).

One thing that cannot be interfered with is the legal tech industry’s own Comic-Con – better known as ILTACon. At ILTACon, the Big Bang Theory clan would be right at home, diving headfirst into technologies that improve law firm and corporate law/IT department responsibilities. Frankly, this tradeshow is known for being a total geek-fest. (And the lawyers, litigation support professionals and IT staff in attendance are cool with that.)

Bazinga! Just Another One of Kroll Ontrack’s Inventions

At ILTACon this year, Kroll Ontrack was excited to announce its newest gizmo to aid document review: Communication Insight.

To understand the benefits of Communication Insight, a Relativity-based application, it is worth elaborating on what viewing retrieved emails is like without it. Normally, when an email is reviewed, it is very difficult to piece together conversations and themes. Going through each file is time-consuming (read: expensive) and presents the risk that important information will be missed because the email is not viewed as part of a whole conversation. The bottom line – document review needs to be intuitive, as discussed at ILTACon by Kroll Ontrack product director Wendy King in a short video interview with LegalTech News’ Ian Lopez.

Kroll Ontrack Presents: Fun with Emails

At its core, Communication Insight makes it easier to view threads of emails and understand what happened in the entirety of the conversation. With this technology, the user is able to tell when the subject of an email changed, who was part of the conversation and if attachments were dropped. It provides a comprehensive overview of the conversation, so that complicated email chains can be read in context. Emails are displayed in a manner familiar to email users and the program notifies users if someone was added to or left the conversation. Through a logical display of conversation data and dynamic visual cues, reviewers can quickly make decisions and intuitively focus their review.

For Relativity users, Communication Insight is a new feature Kroll Ontrack is proud to bring to the platform. #ILTACon2016 attendees seeing Communication Insight in action noted that it gives them everything they need, front and center…and even a non-geek can appreciate that.


ILTACon 2016: The Sticky Truth about Tape


Known for profound peer-to-peer panels and the newest legal technologies, this year’s ILTACon did not disappoint. From artificial intelligence (AI) and the cloud to data protection and mobile device forensics, ILTACon attendees heard innovative presentations on emerging trends in legal technology.

Taking center-stage at the Kroll Ontrack booth was not the multitude of drinks and tech giveaways, but rather our new product Ontrack DataAdvisor. Whether it’s damaged tapes or multiple generations of legacy tape, Ontrack DataAdvisor will retrieve and catalog the data so you can view your catalogs online and make decisions about your data, as highlighted in our recent case studies.

Bogged Down in Tape; Masking the Real Problem

Many companies satisfy their legal and compliance duties by storing old data on backup tapes, creating a massive amount of legacy data. For a large organization, this can mean holding hundreds or even thousands of tapes in storage – most dating back years and from a variety of outdated software formats.

And then litigation pops up. Suddenly, dark, legacy data must be retrieved and examined. Finding relevant data turns into a herculean task. The cost of going through reams of tape skyrockets litigation costs and deadlines flash by too quickly. Moreover, even with new proportionality guidelines in the amended Federal Rules of Civil Procedure, courts may be unsympathetic to the expense and time that this situation creates, as a party cannot evade discovery because they chose an inconvenient storage method.

Ontrack DataAdvisor Unsticks Your Tape Troubles

Scotch, duct, packaging, masking, electrical, double-sided – you need the right tool for the right job. When it comes to volumes of legacy backup tapes, Ontrack DataAdvisor unsticks your tape troubles. Here’s how it works:

  • Your catalogs are created by Kroll Ontrack or supplied to Kroll Ontrack;
  • They are ingested into Ontrack DataAdvisor;
  • You can easily view the folder hierarchy of catalogs (media, session, directory, date, file name), search and browse folders.

With this information in-hand, you can identify, retrieve and migrate key items on individual tapes – without restoring all data in your tape library. For many #ILTACon2016 attendees who saw demos of Ontrack DataAdvisor, wheels started turning. They commented on how this solution could more easily help them solve the mystery of what is on that box of tapes in the closet.

New Resources Available for Interpreting the FRCP

Ediscovery resources

The first couple of months after the Federal Rules of Civil Procedure (FRCP) amendments were enacted in December 2015 changed the ediscovery atmosphere. During that time, it was unknown to practitioners whether the changes to Rules 26(b)(1) and 37(e) would create any reaction by the courts, much less if they would substantially influence the course of discovery. The early opinions became a sounding board as both courts and parties struggled with the challenges of interpreting the new amendments and the impact they would have on their cases.

In just a few short months, the 2015 amendments will be one year old and many courts now have established expectations based on the new rules.  Practitioners can no longer afford to ignore the changes. In order to help practitioners avoid making their case a lightning rod, Kroll Ontrack has compiled a number of useful resources published this summer to help you navigate the current framework.

Summer 2016: New Ediscovery Resources

  • Published in mid-August 2016, Gibson, Dunn & Crutcher’s report, 2016 Mid-Year E-Discovery Update, highlights the current trends of courts in regards to 26(b)(1) and 37(e).
  • Kroll Ontrack’s e-Book, 6 Months of Case Law Under the New FRCP, which is mentioned in the Gibson, Dunn & Crutcher report, gives a six month overview of cases which have had the most impact due to the new amendments.
  • Nationally renowned ediscovery expert, Tom Allman, has released a new treatise entitled, Applying the 2015 Civil Rules Amendments. The article provides useful background information on the formation of the new amendments, as well as an analysis of how the rules are being utilized by the courts.
  • The recent Sedona Conference publication, TAR Case Law Primer, offers a comprehensive overview of the jurisprudence surrounding the use of TAR. The primer also includes a discussion of the use of TAR in an international context.

Don’t miss out on these great new resources!

Brexit: Through the Eyes of a US Legal Team


The headlines are nearly ubiquitous at this point: this summer, the people of the United Kingdom voted to leave the European Union. The reasons cited for leaving are varied and complicated, with many commentators still debating what caused a niche political movement be adopted by 52% of the electorate. However, most agree that the following broad factors led to the vote to leave (aka “Brexit”):

  • A belief that the EU wields too much power over UK legislation and a subsequent desire to restore sovereignty
  • Dissatisfaction over the costs of EU membership and a feeling that the UK paid too much and received too little in return in comparison to other countries
  • Concern over EU immigration policy and a desire to have full control over UK borders
  • Anger over the UK government’s austerity regime, particularly in areas that have suffered a decline in manufacturing and industrial jobs

Technically speaking, the controversial referendum was not an official notice to the EU that the UK will leave the EU. As soon as the formal notice is given to the EU, a ticking clock begins which is set for a two year exit phase to organize the finer points of Brexit. UK Prime Minister Theresa May said she understands the need for certainty but has indicated that she does not intend to give the formal notice this year. At the earliest, Brexit could become official in 2019.

But what does this referendum mean for US businesses with global operations? Specifically, what is the full impact of Brexit on data transfers in corporate litigation and investigations? How should US in-house counsel and their law firms be preparing for future data protection and privacy changes as a result of Brexit? What will be the impact on global ediscovery practices?

Data Protection: New Horizons or Business As Usual?

The UK currently operates under the Data Protection Act 1998 (DPA), which was enacted to bring British law in line with the EU Data Protection Directive (DPD). Since Britain voted to leave the EU, it is likely that the DPA will remain unchanged at least during the Brexit transition period.

The future state of the law is partly dependent on whether or not Britain becomes part of the European Economic Area (EEA) or the European Free Trade Association. If the UK becomes part of the EEA and the EU finds the UK’s data protection safeguards to be appropriate, this would make transferring data outside of the UK easier. However, it is likely that businesses will still have to comply with the new requirements to be implemented under the forthcoming General Data Protection Regulation, when transferring data across borders to comply with legal obligations in other countries.  If Britain does not become part of the EEA, the situation is more complicated, and it is likely that an arrangement similar to the EU-US Privacy Shield would need to be agreed to. This would likely provide a safe passage for the transfer of data between the UK and other countries in Europe.

Ediscovery: Knowledge and Technology are Power

The crux of the situation is that the international data protection landscape is changing regardless of the outcome of the Brexit referendum and US businesses with global operations need to be prepared for the differences. Until the UK finalizes its data protection regime and comes to an agreement with the EU, companies need to think carefully about the risks of transferring data across UK borders. But, business does not have to come to a standstill; law firms and companies can rely on Kroll Ontrack’s mobile ediscovery solution and network of European data centers to continue processing and transferring data in Europe in a compliant and cost-effective manner.

Kroll Ontrack is here to help you and your business thrive and adapt in a changing ediscovery world. Subscribe to our email newsletters, follow us on Twitter and connect with us on LinkedIn, and read up on ediscovery all around the world.

August 2016 Ediscovery Case Summaries

ediscovery case summaries

Court Grants $3,000,000 in Punitive Damages for ESI Spoliation
GN Netcom, Inc. v. Plantronics, Inc., 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016)

Court Clarifies the Obligation to Utilize Rule 26(b)(1) Proportionality Factors
Rowan v. Sunflower, 2016 U.S. Dist. LEXIS 72254 (D. Kan. June 2, 2016)

Court Denies U.S. Government’s Warrant to Obtain Overseas Data
Microsoft Corp. v. United States (In re Warrant to Search a Certain E-Mail Account Controlled & Maintained by Microsoft Corp.), 2016 U.S. App. LEXIS 12926 (2d Cir. N.Y. July 14, 2016)

Attorney Sanctioned for Failing to Address Proportionality in Brief
Fulton v. Livingston Fin. LLC, 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016)

“Caveat Emptor” Applies to ESI Requests
P.R. Med. Emergency Grp., Inc. v. Iglesia Episcopal Puertorriqueña, Inc., 2016 U.S. Dist. LEXIS 99391 (D.P.R. July 26, 2016)