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

by Eric Robinson on September 23, 2016 in Ediscovery, Information Management, Webinar with No comments

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

HIGH-TECHNOLOGY HEALTHCARE

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.

CASE STUDY: EDISCOVERY HEALTH CHECK

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

by Michele Lange on September 12, 2016 in Document Review, Technology-assisted Review (TAR) with No comments

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

by Michele Lange on September 8, 2016 in Information Management with No comments

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

by Thought Leadership Team on September 6, 2016 in Case Law, Ediscovery, Other with No comments

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

by Thought Leadership Team on August 22, 2016 in Ediscovery, International Ediscovery with Comments Off

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

by Thought Leadership Team on August 19, 2016 in Case Law, Ediscovery with Comments Off

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)

Throwback Thursday: 6 Months of Case Law Under the New FRCP [Webinar]

by Thought Leadership Team on August 11, 2016 in Case Law, Ediscovery, Webinar with Comments Off

A Tale of Two Rules

The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on proportionality and Rule 37(e) with its “reasonable steps” language have impacted the ediscovery environment.

To guide practitioners, Kroll Ontrack has compiled an extensive case law digest containing case summaries and analysis to guide practitioners through the nuances of these new rules. In addition to the downloadable e-book, Kroll Ontrack partnered with Judge Elizabeth Preston Deavers of Ohio and nationally renowned civil procedure expert Tom Allman to present a webinar that explored the most prominent cases and developments.

Missed the webinar? Listen here.

Rule 26(b)(1): The Age of Proportionality

In the webinar, Judge Deavers discussed the changes to Rule 26(b)(1) and their resulting impact on ediscovery. Most notably, the old and often cited “reasonably calculated” language of this rule has been removed, and the rule was revised to emphasize the need for proportionality. Webinar speaker Tom Allman referenced a new research paper he authored, Proportionality Today, which he made available to webinar attendees.

As the new rules take hold, one theme clearly emerges: There is no substitute for specificity. Parties need to be prepared to explain why their discovery request is both relevant and proportional, while parties that are objecting to discovery need to be able to explain why it is not.

In the background of this is newly amended Rule 1, which encourages cooperation between the parties. Keeping discovery proportional and manageable is no longer solely the responsibility of the courts: parties are now expected to do their part to contain the parameters of discovery and resolve any disputes.

Rule 37(e): Preservation Under the Shadow of Inherent Power

In addition to the Rule 26 discussion, Tom Allman reviewed the amendments to Rule 37(e) in regards to sanctions for ESI spoliation and directed webinar attendees to another piece of his research, Applying Amended Rule 37(e). The new language specifies that “reasonable steps” must be taken to preserve ESI, however the rules do not specify what this constitutes, leaving it to the courts to determine depending on the facts of the case.

Despite the lack of explanation of what constitutes “reasonable steps,” the rule clarifies that a party must still have act with intent or “bad faith” before sanctions will be imposed. Suspicious activity or honest mistakes are not enough to warrant sanctions, in most cases. However, if a party acts irresponsibly to preserve evidence, a court may infer a finding of intent.

In addition, Rule 37(e) has attracted attention because some courts are going beyond the parameters of Rule 37(e) and using their “inherent power” to sanction parties. In these cases, the court reached the conclusion that Rule 37(e) did not provide a suitable remedy for the behavior.

With new opinions emerging on an almost daily basis, the impact of the 2015 FRCP amendments continues to evolve, changing the ediscovery landscape. Download the full webinar here!

Global Predictive Coding: Gold, Silver & Bronze

by Brian Meegan on August 3, 2016 in Case Law, Ediscovery, International Ediscovery, Technology-assisted Review (TAR) with Comments Off

This week, athletes from around the globe will gather in Rio to compete for gold medals and present years of hard work and dedication. With the Games as a backdrop, there is no better time than to explore our own global phenomenon in ediscovery – predictive coding technology.

Recently, Kroll Ontrack’s Michele Lange and Tracy Stretton co-authored an article for Bloomberg BNA’s Digital Discovery & e-Evidence in which they discussed the way predictive coding is taking the globe by storm.

A Global Predictive Coding Case Law Primer

Taking the gold medal for the first predictive coding judicial opinion, several years ago American courts approved the use of predictive coding technology in discovery, making it widely recognized and respected. In March 2015, Ireland earned the silver medal with its approval of the use of predictive coding in the discovery process in Irish Bank Resolution Corporation Ltd. & Ors v. Quinn & Ors. In February 2016, Master Matthews helped Britain win the bronze when he issued the first British opinion, known as Pyrrho Investments Ltd. v. MWB Property Ltd., which approved the use of predictive coding in High Court proceedings, partly relying on Magistrate Judge Peck’s opinion in Da Silva Moore v. Publicis Groupe. Even more recently in May 2016, Britain had its first contested case regarding predictive coding, David Brown v. BCA Trading. These opinions are just the start of what we will see on the issue of predictive coding in years to come. Case law will continue to develop as many of the same concerns are being raised globally.

What’s Next on the Horizon?

As discussed by Lange and Stretton in their article, in the US and UK, judges will continue to interpret the nuances of parties’ predictive coding practices and it will not be long until other European and Asian countries formally join the predictive coding games. In the meantime, technology is evolving so legal professionals must stay vigilant to meet the expectations of demanding international clients when producing electronic documents in global litigations or investigations.

Relativity Certifications—Helping You Learn the Lingo

by Eric Robinson on July 25, 2016 in Document Review, Ediscovery, Other, Product Tips with Comments Off

For Relativity gurus, making sense of kCura’s certification system is likely no sweat. However, for ediscovery outsiders or legal/IT professionals new to Relativity, all of the classes, tests and designations are a bit overwhelming. While kCura’s certification system is not overly complicated, it takes some time to learn the lingo. To speed up your learning curve, take five minutes to familiarize yourself with the Relativity certification structure.

PREPARING FOR A RELATIVITY EXAM? WATCH THIS VIDEO from Kroll Ontrack.

Why Get a Relativity Certification?

If you work for a corporation, law firm or service provider utilizing Relativity for ediscovery, there is no better way to learn new Relativity features and provide more value to your organization than to get certified. The Relativity certification programs are for individuals looking to validate their knowledge and expertise in the software.

What Relativity Certifications Are Available?

kCura offers eight certifications for Relativity:

Relativity Certified Administrator (RCA) – The keystone certification, targeted at case administrators working day-to-day in Relativity.
Relativity Analytics Specialist – For individuals working extensively with Relativity Analytics.
Relativity Infrastructure Specialist – For individuals responsible for setting up, running and troubleshooting a Relativity environment.
Relativity Certified User – For individuals conducting document review within Relativity.
Relativity Assisted Review Specialist – For individuals with expertise in predictive coding within Relativity.
Relativity Processing Specialist – For individuals operating the processing engine in Relativity.
Relativity Project Management Specialist – For individuals troubleshooting case workflows using Relativity.
Relativity Certified Sales Professional (RCSP) – For individuals demonstrating Relativity in a sales setting.
Expert – For RCAs who hold two or three specialist certifications concurrently.
Master – For RCAs who hold four or more specialist certifications concurrently.

How Does the Certification Process Work?

Don’t expect these certifications to come easy. It is generally known that kCura’s exams are not a stroll through the park. Expect to invest plenty of time studying to prepare yourself. Further, in order to sit for one of the exams, candidates have to possess specific experience as a prerequisite. After you pass, you have to keep your certification up to date by earning Relativity Continuing Education (RCE) credits.

Hear What Some RCAs Have to Say

At Kroll Ontrack, many of our team members are ramping up their Relativity expertise. In fact, currently 53 colleagues hold the RCA designation, with several also certified in one or more specialist areas. Of those certified, nine in Kroll Ontrack’s crew have reached the Relativity Expert designation and one hard-working individual at Kroll Ontrack is certified as a Relativity Master.

If you are thinking about earning a Relativity certification, watch this short video to hear how some of Kroll Ontrack’s folks prepared themselves and achieved these important Relativity designations. Then, if you are intrigued to pursue such a certification, set aside time to read the wealth of information available on kCura’s website. As anyone working in ediscovery knows, given the amount of change in the law and technology, continued professional development goes a long way to a prosperous career in ediscovery.

Soaking up the Ediscovery Sun: Ing3nious NorCal 2016

by Michele Lange on July 21, 2016 in Ediscovery, Other with Comments Off

This past week, I had the opportunity to attend the Ing3nious NorCal Retreat on Ediscovery and Information Governance in the beautiful Pacific coast town of Half Moon Bay, California. This event signified the fifth anniversary since Ing3nious launched its initial retreat. As typical for Ing3nious conferences, the retreat featured many knowledgeable speakers and informative presentations.

Ediscovery Ethics: Calm, Cool and Competent

At the retreat, I had the chance to present the session on ediscovery ethics, along with attorney Brendan Kenny of Blackwell Burke. The focus of our presentation was on The State Bar of California Formal Opinion No. 2015-193 on Ediscovery Ethics and its applicability to the Model Rules of Professional Conduct. We discussed the importance of the nine skills highlighted in the California opinion:

Initially assess ediscovery needs and issues
Implement/cause to implement appropriate ESI preservation procedures
Analyze and understand a client’s ESI systems and storage
Advise the client on available options for collection and preservation of ESI
Identify custodians of potentially relevant ESI
Engage in competent and meaningful meet and confer with opposing counsel concerning an ediscovery plan
Perform data searches
Collect responsive ESI in a manner that preserves the integrity of that ESI
Produce responsive non-privileged ESI in a recognized and appropriate manner

Brendan live-streamed the presentation via Periscope and it is available for you to watch as a recording here. The slides from the presentation are also available for you on SlideShare.

Destination 2020, Social Media and Ediscovery Trends

One session that I found particularly interesting was “Destination 2020: The Changes, Opportunities and Challenges of the Next Four Years” presented by Chris Surdak. Chris has been at the forefront of the application of information technology and gave us a glimpse of his new book: Jerk, Twelve Steps to Rule the World. In his presentation, Chris discussed the formula for causing jerk in any industry and what existing companies must do to respond to these jerks while there is still time.

Other sessions I enjoyed include, “Through the Looking Glass: On the Other Side of the FRCP Amendments,” “It’s a Social World After All,” and “Top Trends in Discovery for 2016.” Specifically, I had the pleasure of listening to my Kroll Ontrack colleague, computer forensics expert Steve Komos, discuss social media in the “It’s a Social World After All” panel discussion.

To learn more about Ing3nious or the retreat, visit the website here. Additionally, keep an eye out for the Ing3nious East Coast 2016 retreat that is set for late September at which Kroll Ontrack will be a participant.