A Warm Fire, a Hot Drink and a New Legal Hold Guide

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Snow flakes, steaming drinks and friendly gatherings are some of the best parts of December – and no classic winter gathering is complete without a roaring fire. But practitioners know not all fires bring great memories: legal hold wildfires and resulting sanctions can dampen winter joy. Fortunately, Kroll Ontrack has just released a newly updated guide, Preventing a Legal Hold Wildfire, so that nothing ruins your winter delights.

The Sanctions Outside are Frightful

The December 1, 2015 FRCP amendments and this year’s court decisions, such as GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016), reiterate the importance of the duty to preserve electronically stored information (ESI). Recognizing your company’s or client’s duty to preserve, when it begins, what it entails and when it ends are key strategies that can save your organization time, money and stress.

But Proper Preservation is so Delightful

The newly updated guide from Kroll Ontrack, Preventing a Legal Hold Wildfire, has tips and tricks so that you do not get caught in the flames. This compact guide features 2016 case law and gives practitioners the starting points that they need to make their own strategies for navigating legal holds.

Since We Know Just Where to Go

Knowing what your organization needs to do and how to do it are two very different tasks; parties need to have their legal hold processes and systems in check. Kroll Ontrack has professional consultants for every aspect of the ediscovery process. And, when it comes to legal holds and how to implement them, Jackie Warner, one of our legal hold consultants, is a pro. Contact Jackie today for an initial legal hold consultation.

December 2016 Ediscovery Case Summaries

ediscovery case summaries

Failing to Cooperate Has Negative Consequences for Party
Venturedyne, Ltd. v. Carbonyx, Inc., 2016 U.S. Dist. LEXIS 157722 (N.D. Ind. Nov. 15, 2016)

Court Holds “Skepticism” Not Enough for Computer Forensic Search
Coast to Coast Eng’g Servs. v. Roop, 2016 U.S. Dist. LEXIS 154758 (D. Me. Nov. 8, 2016)

Court States “Old Habits Die Hard” With the New FRCP
In re Bard IVC Filters Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 126448 (D. Ariz. Sept. 16, 2016)

Court Upholds High Bar for Sanctions
Richard v. Inland Dredging Co., LLC, 2016 U.S. Dist. LEXIS 134859 (W.D. La. Sept. 29, 2016)

Court Finds Lesser Sanctions of District Court Sufficient
BMG Rights Mgmt. (US) LLC v. Cox Communs., Inc., 2016 U.S. Dist. LEXIS 105981 (E.D. Va. Aug. 8, 2016)

Happy Anniversary, FRCP Amendments!

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Ediscovery professionals are celebrating the one-year anniversary of the amendments to the Federal Rules of Civil Procedure. With 365 days of applying the new rules, now is a great time to ask: What’s been the impact of the FRCP amendments?

Take the FRCP amendments survey – and enter to win a prize!

How do you think the amendments have impacted ediscovery practices? What about preservation practices in Rule 37(e)? Clawback motions? The questions are simple and we want to know what you think.

After you answer five easy questions about how the FRCP amendments have impacted ediscovery practices, you will be entered to win a Kindle Paperwhite e-reader.

DOJ ANTITRUST DIVISION ISSUES NEW MODEL SECOND REQUEST, WITH NEW PREDICTIVE CODING INSTRUCTIONS

On November 28, 2016, the Department of Justice (DOJ) Antitrust Division issued an updated Model Second Request, aimed at revising and streamlining the model to conform to “current division practice.” The updated Model will be used for all Second Requests issued on or after December 12, 2016. The new model contains significant changes to merging parties’ obligations during a Second Request, as well as a substantial formatting overhaul.

Regarding the use of ediscovery technology during a Second Request from the DOJ, the predictive coding instructions were meaningfully modified.

First, the new model appears to signal an increased acceptance of use of predictive coding during a second request. Specifically, the searching and predictive coding instruction begins with the following new language, “Before using software or technology…” seemingly indicating that the Antitrust Division recognizes that it is not a matter of “if” parties are leveraging technology but “when” and “how” that technology will be used.

Second, the new model requires merging parties and their counsel to be more astute than ever before when it comes to ediscovery technology. For example, if search terms are used, merging parties must now submit a list of stop words and operators for the platform being used. Also, if predictive coding technology is used to identify or eliminate documents, merging parties must provide more than just a description of the methods being used. Under this new model, the Antitrust Division also is requiring information about the use of subject matter experts to review seed sets and training documents, effectiveness metrics (such as recall, precision and confidence-intervals) and validation protocols, including sampling protocols used to categorize non-responsive documents.

The new predictive coding and searching instruction is provided in full below:

November 2016 Version – DOJ Model Second Request

  1. Before using software or technology (including search terms, predictive coding, de-duplication, or similar technologies) to identify or eliminate documents, data, or information potentially responsive to this Request, the Company must submit a written description of the method(s) used to conduct any part of its search. In addition, for any process that relies on search terms to identify or eliminate documents, the Company must submit: (a) a list of proposed terms; (b) a tally of all the terms that appear in the collection and the frequency of each term; (c) a list of stop words and operators for the platform being used; and (d) a glossary of industry and company terminology. For any process that instead relies on predictive coding to identify or eliminate documents, you must include (a) confirmation that subject-matter experts will be reviewing the seed set and training rounds; (b) recall, precision, and confidence-level statistics (or an equivalent); and (c) a validation process that allows for Department review of statistically-significant samples of documents categorized as non-responsive documents by the algorithm.

As these new instructions reinforce, Second Requests are synonymous with sheer complexity. At Kroll Ontrack, we have leading technology backed by human experts, like John Pilznienski, who know how to successfully navigate a Second Request. Kroll Ontrack is uniquely equipped to help manage your document productions to the FTC, DOJ and other global competition bureaus.

Making Cents Out of Ediscovery Costs [Webinar]

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Ediscovery does not have to be expensive. By utilizing the newest technologies, engaging in skillful preparation and obtaining knowledge of the process, you can keep ediscovery costs down. Kroll Ontrack’s latest webinar, Cost-Effective Ediscovery: How to Manage Expense and Reduce Waste provides useful tips and suggestions from three seasoned ediscovery specialists. These experts provide law firm, corporate and provider’s perspectives:

Don’t Be Late to Adopt New Technology

The myth that human review is the gold standard, as well as apprehension on how a court regards technology has led some practitioners to shy away from taking advantage of technological opportunities. However, as the webinar panelists discuss, predictive coding is an untapped resource for practitioners aiming to cut ediscovery costs.

Don’t Just Buy Ediscovery: Manage It

The webinar discusses that keeping ediscovery costs in check is not as simple as choosing the right provider. While setting a budget and considering fee schedules are important, this is not all that needs to be done to influence ediscovery costs. Panelists suggested:

  • Monitoring costs along the way; ask for regular updates
  • Communicating with corporate, law firm and provider representatives; lack of communication increases costs
  • Cooperating with opposing parties where possible; come to an agreement on things such as the number of custodians, production parameters and document review protocols

Don’t Miss the Opportunity to Get Proactive

Being prepared for ediscovery saves downstream costs. Webinar panelists highlighted the importance of ediscovery assessments and postmortem evaluations in pinpointing risks and identifying cost reduction recommendations across discovery response plans.

Watch this webinar, Cost-Effective Ediscovery: How to Manage Expense and Reduce Waste to learn even more about how to make budget-friendly ediscovery not just a possibility, but a reality.

November 2016 Ediscovery Case Summaries

ediscovery case summaries

Court Declines to Compel a Party to Utilize Predictive Coding
In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016)

No Obligation to Produce Information Outside of a Party’s Legal Right of Control
Jackson v. E-Z-Go. Div. of Textron, Inc., 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 24, 2016)

Court Grants Discovery Objection that Was Stated With Specificity
Arenas v. Unified Sch. Dist. No. 223, 2016 U.S. Dist. LEXIS 143338 (D. Kan. Oct. 17, 2016)

Court Holds It Will Not “Micro-Manage” Ediscovery; Orders Parties to Meet and Confer about Search Terms
Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sept. 30, 2016)

“No Emails Found” is Insufficient; Court Requires Party to Explain Steps Taken to Locate Responsive Email
Carter v. Cummings, 2016 U.S. Dist. LEXIS 137118 (W.D. Wis. Oct. 3, 2016)

Crossing Borders: Where Discovery and Privacy Collide

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Litigation teams face new challenges when an ediscovery project crosses borders – from multilingual data and unique cultural norms to unfamiliar laws, regulations and data privacy practices. In addition, the international data protection landscape is changing and U.S. businesses with global operations need to be prepared. Companies need to think carefully about the risks of transferring data across borders.

To help practitioners navigate these challenges, Kroll Ontrack synthesized information on more than seventeen countries to create a succinct, new guidebook, A Practical Guide to Cross-Border Ediscovery: Insights for U.S. Lawyers.

This guide includes practical insights into how organizations all over the world are managing a wide range of business challenges using ediscovery technology, including:

  • Case studies on cross-border litigation and FCPA investigations;
  • An “At a Glance” visual map that shows the legal system, applicable rules and ediscovery practices for key countries in the Americas, EMEA and APAC regions;
  • Short summaries from experts on the ediscovery landscape in key countries; and
  • A timeline of EU Data Privacy and Protection milestones.

Litigation, compliance demands and investigations are part of the regular course of business for U.S. lawyers. With global considerations and cross-border implications, law firms and companies now rely on mobile ediscovery technologies, in-country data centers and local expertise to empower the processing and transferring of data in a compliant and cost-effective manner. This guide is just one way that Kroll Ontrack is here to help attorneys and their counsel thrive and adapt in a changing ediscovery world. Read the new cross-border guide today.

Ediscovery Data Collection: Fact v. Fiction

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Getting off to a good start in an ediscovery project or computer forensics investigation is paramount. This places extreme scrutiny on the left-hand EDRM activities – namely, identification, preservation and data collection. However, developing the proper collection strategy in a specific matter is anything but turnkey. There are a number of reasonable methods for collecting data, which are often dictated by the facts and circumstances of the case. If you are new to capturing data, or a veteran with many projects under your belt, take five minutes to brush up on these fallacies and facts around data collection.

1. Fiction: Bit-by-bit imaging is required for a forensically sound collection.
Fact: As discussed by Nick Pietig, one of Kroll Ontrack’s consulting professionals, data needs to be collected with an eye toward preventing spoliation, while preserving metadata and ensuring defensibility. In most cases, a full forensic image is not needed and an active data capture will suffice for civil litigation. However, some matters (such as employment cases where a key player is suspected of intentionally deleting information) and some organizations (such as those in regulated industries or with global operations) prefer bit-by-bit imaging, because it is perceived to be the “safest” collection method, capable of standing up to rigorous scrutiny. Despite the type of data collection required, every collection must be forensically sound – meaning that all the files are preserved, along with the associated metadata necessary to prove that the information is authentic. To learn more, check out Nick’s data collection video.

2. Fiction: The volume of data collected is decreasing because of better targeting of key custodians.
Fact: According to the 2015 edition of Kroll Ontrack’s “Pulse Benchmarks,” the average number of custodians in a data collection is decreasing, from 65 in 2008 to 16 in 2014. In no small part, this trend is likely due to the fact that cost-conscious litigants are leveraging new collection methods and advanced pre-filtering technologies, combined with more effective custodian interviews. However, the overall volume of data in a collection is relatively stable or even slightly increasing, with 444 GBs collected on average in 2008 and 482 GBs collected on average in 2014. Even though parties are collecting data more diligently and custodian counts per matter continue to decline, big data is driving up data volumes per custodian, resulting in increased data volumes per case.

3. Fiction: Once you collect data, it must be transported for further processing or investigation offsite.
Fact: In many situations, after data is collected, it is transported to some other location for further analysis. However, there are scenarios where data cannot leave its premise. For example, some organizations, under certain circumstances, request that collection and filtering efforts be completed onsite to prevent the transport of irrelevant and sensitive data. In these situations, technology has evolved to collect, filter and process data onsite, so it never leaves the premises. Find out more about this mobile technology by reading a recent mobile discovery case study.

4. Fiction: Collection processes, once proven, need never change.
Fact: Because security measures, operating systems and devices are constantly evolving, collection processes also need to continually adapt. For example, new encryption protocols across all types of devices – from mobile devices to the cloud – are resulting in freshened collection protocols. As such, collection professionals need to research new techniques, investigate tools and perform tests to ensure the collection will accurately capture targeted data. If you are interested in learning more, don’t miss Kroll Ontrack’s November 16 webinar, Mobile Device Investigations: From Android to iPhone and Back, where Jason Bergerson will boost your understanding of how to leverage data from mobile devices in a forensically-sound manner.

TAR: Building a Better Playlist

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“Sometimes it seems as if our Pandora and Netflix accounts know us better than we know ourselves, and can build a better play list…”

Brett M. Anders

Brett M. Anders, Jackson Lewis

In a recent article in Today’s General Counsel, Brett M. Anders of Jackson Lewis and my Kroll Ontrack colleague Rick Anderson, seek to debunk the misconception that human lawyers alone can build a better playlist when it comes to legal document review.

Human Review Is Not the Gold Standard

Practitioners shy away from predictive coding and technology assisted review (TAR) in part because of the myth that human review is superior to that done by a computer. However, this is not the case. Humans can be inaccurate: relevant documents can be missed and accuracy suffers. This position has been verified by studies and is generally accepted by the judiciary. The use of TAR has received much support from the courts in the cases where it has been an issue. However, at this point, no court has gone so far as to mandate the use of TAR.

Rick Anderson, Kroll Ontrack

Rick Anderson, Kroll Ontrack

Using Technology Assisted Review in Litigation

As of now, several judicial opinions have surfaced regarding the use of TAR. As noted above, the courts have supported it as a cost effective method for conducting discovery. The standard for discovery responses is “reasonable and proportional to the matter,” not perfection. Therefore, the accuracy offered by the use of TAR satisfies the standard for discovery production.

Speaking of proportionality, using TAR can place a party in a better position to make an argument about proportionality when litigation costs become too high. Because TAR prioritizes which documents are most likely to be relevant, a party who makes its way through the documents with the highest relevance has a basis to argue that additional discovery would not be “proportional to the needs of the case.”

Advantages of Using TAR

As discussed by Anders and Anderson, despite the apprehension to utilize this technology in the legal community, the fact remains that TAR has many advantages.

  • TAR costs a fraction of the expense it would take to review documents manually
  • TAR is typically faster than traditional document review, while also more accurate
  • Courts have approved the use of TAR; parties no longer need to worry about being the first to use this technology in a case
  • Courts are encouraging its use, while respecting the party’s wish to keep its seed set (used to train predictive coding technology) confidential

For more information on TAR, and how to utilize its benefits in litigation, be sure to read the full article, “Building a Better Play List with Technology-Assisted Review.”

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?

 
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