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2016: Ediscovery Year in Review

All good things must come to an end; even a great year in ediscovery.

As another year wraps up, we look back at a year that brought great changes to ediscovery. There is no better time than now to remember the highlights of ediscovery case law in 2016. The arrival of the FRCP amendments in December 2015 altered ediscovery practice and set new precedents. The duty to preserve, a new emphasis on proportionality and the intent to deprive dominated ediscovery judicial opinions as courts applied the new FRCP amendments.

Beyond the domination of preservation, proportionality and production, Kroll Ontrack’s analysis of 57 significant state and federal ediscovery opinions led to the classification of 4 major categories that arose most commonly in 2016 ediscovery case law. The most important of these cases are summarized in Kroll Ontrack’s guide, Top Ediscovery Cases of 2016. This guide includes the following topics and cases:

56 percent of opinions dealt with disputes involving production and the methods used, and arguments about proportionality and the scope of discovery.

  • Fulton v. Livingston Fin., 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016)
  • Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459 (N.D. Tex. 2015)
  • Jackson v. E-Z-Go. Div. of Textron, 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 24, 2016)
  • Gilead Scis. v. Merck, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. Jan. 13, 2016)

32 percent of opinions dealt with disputes involving preservation, spoliation and motions for sanctions.

  • Orchestratehr v. Trombetta, 2016 U.S. Dist. LEXIS 51405 (N.D. Tex. Apr. 18, 2016)
  • Living Color Enters. v. New Era Aquaculture, 2016 U.S. Dist. LEXIS 39113 (S.D. Fla. Mar. 22, 2016)
  • Marten Transp. v. Plattform Adver., 2016 U.S. Dist. LEXIS 15098 (D. Kan. Feb. 8, 2016)
  • GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016)
  • Cat3 v. Black Lineage, 2016 U.S. Dist. LEXIS 3618 (S.D.N.Y. Jan. 12, 2016)

4 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs.

  • R. Med. Emergency Grp. v. Iglesia Episcopal Puertorriqueña, 2016 U.S. Dist. LEXIS 99391 (D.P.R. July 26, 2016)
  • Elkharwily v. Franciscan Health Sys. 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016)

9 percent of opinions discussed procedural issues, such as search and predictive coding protocols.

  • Dynamo Holdings v. Comm’r of Internal Revenue, 2016 WL 4204067 (T.C. July 13, 2016)
  • Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016)
  • Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sept. 30, 2016)
  • In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016)

The guide also includes a special section on International Predictive Coding, discussing the major opinions to emerge from overseas.

  • Pyrrho Investments Ltd. v. MWB property Ltd., [2016] EWHC 256 (Ch)

Looking for more? Check out our Top Ediscovery Cases of 2016 guide to review these significant ediscovery cases.

Crossing Borders: Where Discovery and Privacy Collide

international ediscovery

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.

Antitrust Video Series: Part 1

Antitrust videos

Navigating the Seas of Global Antitrust and the Expanding Internet Frontier

Every year, the leading practitioners in antitrust law congregate in Washington, DC for more than just the cherry blossoms: they gather for the Annual Spring Meeting of the ABA Section of Antitrust Law. This year, the Spring Meeting focused on global antitrust law, highlighting that now, more than ever before, the legal antitrust professional needs to contend with the global market.

Not everyone is lucky enough to attend the Spring Meeting, so at this year’s meeting Kroll Ontrack was honored to partner with The Capitol Forum to bring you a glimpse of the exciting new topics that were discussed. Nationally renowned experts on antitrust law shared their insights and opinions with us over a dozen short, exclusive antitrust videos, which are available here for you. Part One of our video series focuses on antitrust issues involving either international jurisdictions or Internet companies, with each video each highlighting a unique facet of the current antitrust environment. Each video is organized with a short description to make is easier for you to decide which of these compelling videos to view first.

Internet Markets are Different

Scott Sher

Scott Sher

The unique follower devotion, the speed of buildup and the customer base consisting of both users and advertisers are just a few ways that Internet markets are different and are proving to be a challenge for regulatory schemes both in the United States and abroad.

Watch: Internet Monopolies featuring Scott Sher, a partner at Wilson Sonsini Goodrich & Rosati, as he discusses the unique antitrust issues facing Internet platform monopolies.


Diversity in Regulatory Regimes Brings Improvement Along with Headaches

William Kovacic

William Kovacic

The United States is no longer the only major jurisdiction with antitrust filing, and this has resulted in increased time and expense. Is there a unified system of regulatory filings on the horizon, and if so, should there be?

Watch: Global Antitrust Regimes featuring Professor William Kovacic of George Washington University, as he discusses the global establishment of antitrust regimes around the world, the complications and possible solutions to remedy these problems.


Antitrust Law Continues to Build on What Came Before

Antitrust videos

Jonathan Kanter

Antitrust law originated to prevent railroad companies from exploiting the market. Today, antitrust law is struggling to grapple with the challenges presented by Internet companies.

Watch: Mechanisms of Antitrust Law featuring Jonathan Kanter, a partner at Cadwalader, Wickersham & Taft, as he discusses the history and mechanisms of antitrust law and its emergence as a public issue.



Be sure to keep watch for next month’s arrival of Part Two of our video series, which will feature the remaining videos and focus exclusively on antitrust issues currently at play in the United States.

Survey says… New trends from corporate in-house counsel

corporate In-house counsel

Recently, Kroll and Kroll Ontrack surveyed over 170 corporate in-house counsel to share their perspectives on modern legal challenges facing organizations. We asked about some of the most pressing issues – from big data and compliance to fraud and cyber security – to uncover some striking corporate counsel trends.

Benchmark your company’s legal risks: download the report!

These were just some of the questions asked:

  • What are the most pressing legal issues facing your corporation?
  • Does your company have a data breach or incident response plan in place?
  • Does your corporation have an information governance program in place?
  • How frequently do you discuss data security issues with your organization’s head of technology?

The key findings in this 2016 Corporate Risk Survey indicate that organizations are making noteworthy strides as the result of new risks facing the enterprise. Nevertheless, the survey also reveals that organizations have additional room to evolve if they seek to combat these modern risks in an efficient, cost-effective manner. Some of the in-house counsel findings include:

  • Only 41% report that their company’s Incident Response plan is regularly updated and tested.
  • 20% indicate that they never discuss data security issues with their organization’s head of technology.
  • 73% believe that they do not have an effective Information Governance (IG) program in place to deal with skyrocketing data volumes.

Want to see how your organization compares? Click here to answer seven of the questions we asked in-house counsel, then download a copy of the report summarizing key findings.

Explore the Global Expansion of Ediscovery

Ediscovery is in the midst of global change. Even for countries with legal frameworks that don’t require parties to disclose electronic documents, global ediscovery is emerging as a critical component of business and corporate governance.

Kroll Ontrack experts created a new, interactive map to help you explore global ediscovery insights. Organized by nation and theme, Ediscovery Goes Global: 2016 Trends” explores the influence of data privacy laws and regulations, cyber security concerns, advancements in computer forensics and the evolution of technology assisted review around the world.

  • Have you ever wondered what the largest emerging market in ediscovery is?
  • How, why and when does ediscovery activity increase in the Netherlands?
  • Where is the use of predictive coding expanding?
  • Ever wondered how China deals with data protection and privacy in ediscovery?
  • Coming out of significant recessions, will Spain & Italy’s use of ediscovery technologies and techniques expand?
  • How do computer forensic tools influence ediscovery in France?
  • Which APAC countries are seeing the most ediscovery growth?

Click here to explore the map and learn more about trends in the hottest emerging ediscovery markets.

Take a “Quick Peek”— 2014 HSR Annual Report

A few weeks ago, the FTC and DOJ released their annual HSR Report. Like any report card, this annual assessment allows us to see the developments of the last year when it comes to premerger notification and merger enforcement.

Before sitting down to do some serious studying of the full report, take a quick peek at a few of the numbers, then read Kroll Ontrack’s analysis, “Top 10 Takeaways: 2014 HSR Annual Report.”

Mergers are up

  • In 2014, merger filings increased by more than 25% from 2013.
  • 1,663 transactions were reported under the HSR Act in 2014.

Considerable emphasis on consumer market competition

  • Consumer Goods & Services comprised 30.8% of the HSR transactions in 2014, more than any other industry.

Growth in multi-million dollar mergers

  • 4% of reported transactions had a value of over $500 million.

Second Request volumes steady with previous years

  • Second Requests were issued in 51 merger investigations – 30 by the FTC, 21 by the DOJ.
  • The number of Second Requests issued in 2014 increased 8.5% over 2013.
  • Second Requests were issued in 3.2% of total HSR transactions, down from 3.7% in 2013.
  • More than 80% of Second Request investigations occurred in transaction ranges of $300 million or greater.

With ample antitrust and Second Request experience under our belts, Kroll Ontrack is uniquely equipped to help manage your document productions to the FTC, DOJ and other global competition bureaus. To learn more about Kroll Ontrack’s expertise, be sure to check out our Second Request Services.

Excavation, Evolution and EMEA Ediscovery: Spotlight on the UK and Germany

What do dinosaurs and data have in common? While it may seem like a strange comparison, excavating a fossilized Tyrannosaurus Rex may not be all that different from finding the most relevant information in terabytes of data. Just as paleontologists have adopted modern technology to locate and date fossils (or create terrifying hybrid dinosaurs such as those in the summer blockbuster Jurassic World), international ediscovery is experiencing its own technology revolution, with firms and companies adopting new techniques and technology to maximize accuracy and efficiency.

Through two recent surveys focusing on EMEA ediscovery, an in-house market study on ediscovery in Germany and a collaborative survey of 101 general counsel and in-house lawyers in the UK with Legal Week Intelligence, Kroll Ontrack unearthed just how firms and companies are handling ediscovery, litigation and regulatory data demands across the pond. Below you will find a summary of these reports, to tide you over until you get time to read both documents in their entirety.

International Ediscovery: Intriguing Themes

  • Regulations, Conflicting Roles, and Costs – UK survey respondents identified an increasingly regulated environment, straddling the need to be legal advisers and commercial advisers and controlling costs as the most pressing challenges facing legal departments today.
  • Internal and Local Tendencies – Two-thirds of the companies surveyed in the UK say they use their own technology and software solutions, although not many have sophisticated ediscovery solutions at their disposal. While companies in Germany generally outsource data processing to external providers, they prefer to use experts with roots in Germany.
  • Differences in Implementation – While nearly 60% of the German companies surveyed recognized the necessary nature of ediscovery, only 20% have response plans for ediscovery projects. In the UK, ediscovery has been around for more than 10 years in litigation and 53% of the surveyed companies are also now embracing sophisticated technology proactively to review their ESI for compliance and potential legal risks, although a third stated that they do not use technology for this process.

Ediscovery in the EU: Dramatic Differences

  • Predictive Coding – While the use of predictive coding has been warmly received in the US for quite some time, EU courts have not had occasion to sanction its usage. However, the Republic of Ireland High Court approved the use of machine learning technology in a case in March – the first time a court in the British Isles has done so. The ruling addresses major concerns regarding predictive coding and seeks to sway the skeptics.
  • No Formal Rules – In contrast to the formal discovery rules in the US and the UK, Germany has no formal legal requirement for ediscovery in civil litigation. That said, ediscovery technologies are nevertheless consistently being used in litigation which indicates just how useful using ediscovery technology can be in case building. With over half of the companies having experienced an ediscovery incident in the past year and a third predicting they will face an ediscovery incident in the next 12 months, being ready for ediscovery is becoming even more important.
  • Differing Demands – Internal investigations, regulatory investigations and litigation arising outside of Germany are the major drivers of ediscovery services in Germany whereas domestic litigation followed by internal investigations and international litigation dominate ediscovery projects in the UK.

What Lies Ahead for EMEA Ediscovery?

  • Specialization – Given the growth of ediscovery practices and professionals in the US, experts expect a similar trend to take hold in the UK, Germany and the rest of EMEA, with ediscovery becoming a legal specialism in its own right.
  • Education –While individuals in Germany are highly aware of the relevance of ediscovery in legal proceedings, there is still a need for greater education regarding the ins and outs of ediscovery. In the UK, there is scope for corporate counsel to learn more about ediscovery, given their dependence on law firms to guide them. The cost benefits of unbundling legal services and relying on experts for ediscovery is becoming very apparent especially in relation to document review.

Before the summer ends, read these two new reports to advance your knowledge of ediscovery practices in Europe.

Information Governance: Points from the Professionals

Information governance (IG) is becoming more and more critical to any organization’s success in controlling the sheer mass of data generated in the ordinary course of business.  However, determining the best ways to get information under control has many organizations at a standstill, with too many organizations only enacting IG practices after disaster strikes.

To highlight the importance of developing effective IG programs, the Information Governance Initiative (IGI) interviewed a number of IG practitioners in differing industries and recently published two reports.  Stories in Information Governance: The IGI 2015 Benchmarking Report and the accompanying document, Information Governance: Tips from the Trenches, compile valuable expert insight and practitioner tips to help any organization evaluate and cultivate an IG program. Across both resources, a couple central themes emerged:

Secure Support for Information Governance

Selling a program meant to protect against a vague, future threat is undoubtedly a challenge, but securing executive support and funding is essential for success. Using mock scenarios to test your program’s strengths and weaknesses, calculating the costs of inaction and consulting an outside expert can help win over a tough crowd and jumpstart an IG program or revive an old one.

Integrate Information Governance into the Entire Organization, not just a Single Department

By coordinating IG throughout the whole organization, end users will learn to think of information as belonging to the organization as whole, not just one department’s problem. For example, creating a senior IG role and developing an IG council of interdepartmental players can optimize the effectiveness of a program.  Further, exploring technology options that can automate as many processes as possible and eliminate end-user variability can make for a streamlined, cost-effective integration of IG policies and procedures into your organization.

Look for Smart Solutions to Challenging Information Governance Problems

Encountering roadblocks while starting and running an IG program is par for the course; don’t shy away from creative solutions. Proactive and creative planning gives you the chance to highlight the value of a strong IG program and garner support from key stakeholders. For example, leveraging versatile technology used to address one problem for other purposes can help stretch a limited budget. Rather than fixating on short-term hang ups, utilizing resources and finding a balance between completing current projects and achieving long-term goals will create a strong IG core at the heart of every project.

Make sure you take time to read these two valuable resources from IGI today: Stories in Information Governance: The IGI 2015 Benchmarking Report and Information Governance: Tips from the Trenches.

Case Study: Investigators Uncover 18 Critical Emails Among Millions

300 gigabytes of data, 1 million documents, and a corporate fraud investigation …

As an ediscovery professional, you have probably found yourself in a scenario like this more than once.  Knowing what to do and having a good set of tools is half the battle, but effectively and efficiently finding a shred of valuable evidence in a mountain of data can be just as challenging as finding a needle in haystack.  Learn how one company, along with its counsel and ediscovery provider navigated this tricky terrain by reading this new Kroll Ontrack case study.

Finding the Needle in the Haystack

When a healthcare company discovered its intellectual property had been stolen, it faced the daunting task of reviewing a crippling amount of data with little or no guarantee that the evidence it needed would even be found.  In preparing for this daunting fraud investigation, it enlisted an AmLaw 100 law firm as well as Kroll investigators and Kroll Ontrack document review experts to take on the arduous task of analyzing and reviewing 300 gigabytes of data and over one million documents.  But what started as a monumental task of sifting through a myriad of data  was alleviated by leveraging  Kroll Ontrack’s Relativity platform, which includes a powerful Early Case Assessment workflow that can be customized to help review teams quickly organize, cull and prioritize docume prior to review.  In a matter of days, the investigators found their “needles” in the sizable haystack: amongst the one million documents reviewed, they found 18 emails to support the corporation’s claims and initiate a formal lawsuit.

Searching through the Straw

What can you do to sift through a seemingly endless amount of data? When you come upon your next substantial data haystack, keep these tips in mind:

  • Plan: Jumping into the data haystack headfirst may seem like a good way to quicken your search, but properly planning your investigation is the key to efficiency. An effective investigation requires strong communication, coordination, and goal setting to produce the best possible results.
  • Focus: You want to find those “needles” and quickly cull the straw from your data haystack to focus your search. Kroll Ontrack’s Relativity lets you to do just that by importing, analyzing, and organizing all potentially relevant data in its unified database, allowing you to easily identify the most important documents.
  • Assess: You may not find the “needle” you were looking for immediately, but assessing your findings and holding on to anything that stands out from the hay may save valuable time later. Keep the goals of the investigation in mind to ensure that critical or questionable data remains in the pool as the investigation progresses.

Pairing strong preparation with the powerful versatility of Kroll Ontrack’s unique technology and seasoned professionals enables investigation teams to locate valuable evidence in the most formidable of data haystacks.  To learn more about how this healthcare company managed this data nightmare with Kroll Ontrack’s unique technology and services, check out the full case study today.

Show-and-Tell: Ediscovery on SlideShare

I remember a time not too long ago when YouTube didn’t exist, Facebook was exclusive  and user-generated content was merely an idea restricted to the internet’s geekiest circles. Now, not only can we savor things like NFL Bad Lip Reading, but we can create fun stuff ourselves with simple software.

Reality TV aside, user-generated content is an extremely valuable medium with uses that extend far beyond personal posts and funny videos. A wealth of information about many different topics is available in the vein of user-generated content, and great ediscovery content is no exception, whether it’s a particularly popular blog (aside from this one, of course), an informative YouTube channel, a cutting-edge podcast or—as I recently discovered—SlideShare presentations.

Ediscovery Information in a Click

For those unfamiliar, SlideShare is essentially the YouTube of PowerPoint presentations. Users can upload PDFs of presentations, documents and graphics to share with the online community. Kroll Ontrack’s new SlideShare account is a great resource for educational ediscovery content. Whether you missed the most recent Kroll Ontrack webinar or simply want to know more about the most salient issues in ediscovery, Kroll Ontrack’s SlideShare currently offers its most popular presentations, ranging from social media to technology assisted review, and several eye-catching infographics.

For practitioners, there’s a wealth of information regarding ediscovery on SlideShare. Within a few minutes of searching I was able to find a litany of ediscovery content including: The Lorenzi Group, a digital forensics and data security consulting firm, who has over 25 presentations on data security and related topics. I also found that many SlideShares offer more than just PowerPoint presentations: Osterman Research, Inc., for example, has over 30 combined white papers, surveys, and briefs on relevant ediscovery topics. Beyond the realm of ediscovery, I also found Matthew Homann’s presentations on innovative legal practices to be a breath of fresh air.

With that said, I’ll cut short my laundry list of useful SlideShares, and leave it to you to find your favorites. However, like my recent post about ediscovery podcasts, please offer your favorite SlideShares in the comments below or let me know what more you would like to see on Kroll Ontrack’s SlideShare.