eDiscovery Climate Change: Who is Affected (Part 2—Recommendations for Corporate Clients)

In my last blog post, I spoke of a tipping point coming in eDiscovery, identified the three groups affected (corporations, providers, and law firms), and provided a list of the top 10 questions buyers should consider.  In part 2 of the series, I’ll provide justifications for these being the top questions and provide what I consider to be ideal answers that corporate clients (or buyers of eDiscovery services) should be seeking.

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eDiscovery Climate Change: Who is Affected (Part 1—Corporate Clients)

A tipping point is coming in eDiscovery.  Maybe not today, next week, next month, or even next year, but in what will be seen in hindsight as the “blink of an eye”, the tipping point will be past.  What tipping point am I referring to?  Technology vs. human, cost vs. benefit, old standard vs. new ways. Phrase it how you want, but changes are coming faster to eDiscovery than ever before.  Continue reading

Notes and Observations from the 24th Annual ACFE Conference

I recently presented at the 24th Annual Association of Certified Fraud Examiner Conference.  This conference brings together fraud examiners and investigators from across the spectrum of corporate, governmental and private enterprise.  Based on the increasing reliance on fraud examiners and financial integrity investigators on electronic data, the coordinator of this year’s conference contacted me to come speak to attendees about eDiscovery standards, practices and how fraud examiners and financial investigators can navigate eDiscovery standards and leverage them to their advantage in conducting investigations.

A couple months ago, I wrote a blog in advance of the conference that identified what I consider to be two foundational questions (See http://lhediscoverynews.com/?p=859) Continue reading

Are You Ready for Litigation? Two Foundational Questions

There are numerous relevant business characteristics to consider in navigating data preservation and collections practices.  However, there are two that I consider to be particularly useful foundational categories that track with many of the findings in Symantec’s 2011 Information Retention and eDiscovery Survey[1] as well as the IGRM[2]. They are:

  1. Does your company have a centralized or de-centralized corporate IT and Legal structure?
  2. Does your company have a litigation or investigation readiness program or policy?

This post will highlight why the answers to these questions matter and identify steps you can take in response to each.

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Privilege and Redaction Consistency

Even the title probably makes a few of you shudder, but let’s not kid each other.  One of the more time-consuming and expensive phases of eDiscovery is document review.  Regardless of the review model you use, a review for privilege among the materials identified as relevant is done.  The privilege review, the redaction of partially privileged documents and the creation of a privilege log are often the most costly parts of document review.  Why so expensive?  There are 4 basic factors that contribute to this increased cost.  To start, this work is usually reserved for the most experienced and thus most expensive document review staff or the litigation team associates.  Second, the differences between privileged and non-privileged documents include nuances that require a closer, more time consuming read of the contents of the documents.  Third, a significant portion of privileged documents are only partially privileged.  As such, these documents require redactions (usually accomplished by drawing a box that blocks or hides from view the privileged text).  Redactions are time consuming and fraught with potential landmines relating to consistency, incomplete or inaccurate redactions and failure to ensure the associated text files for redacted documents reflect the redacted version of the document instead of the original un-redacted version.  Finally, documents identified as privileged require additional coding that includes identification of the privilege claim (e.g. atty/client privilege, work product, joint defense or common interest to name a few), a privilege description (e.g. “an email containing legal advice regarding xyz.”) and normalization of data for some common fields such as names in the To, From, Cc fields. Continue reading

TAR and Review of Opposition Documents

Many vendors, law firms and clients think of TAR primarily as a means of reducing costs associated with review of unproduced documents.  However, legal technology pundits, litigators, in-house counsel and judges are still working through defensibility issues associated with use of Technology Assisted Review (TAR) in discovery settings.  Many corporate clients are not yet ready to risk judicial rejection of TAR-based reviews and still shy away from TAR.  Many law firms are equally risk-averse.  Other law firms are unsure how to leverage TAR without cannibalizing their existing document review model. Continue reading

Technology Assisted Review—The Great Equalizer

With all the buzz about Technology Assisted Review (“TAR”) lately ( also known as predictive coding tools, such as ReviewSmart, Equivio’s Relevance and kCura’s Relativity Assisted Review), I noticed it’s often large companies and big law firms who are asking about it.  You may be saying, “well of course, they are the ones with the huge document productions.”  Small to medium size firms should take note – TAR can be an unbelievably useful tool for these firms, especially those who typically deal with multiple litigations in the 50k-150k document production range.  Why should small and medium firms pay attention to TAR?  Three big reasons:  time, capacity and price. Continue reading

Privilege and Confidentiality in the Electronic Age—Three Traps to Avoid Waiver of Privilege

Attorney client and work product privileges became much more complicated in the electronic age.  Not only was there significantly more data to review to determine whether privilege existed, but there were also a plethora of new ways to communicate—emails, text, social media, etc.  These “new” issues raised by the electronic age caused heartburn for many lawyers.  Following adoption of Federal Rule of Evidence 502, which expanded the protection provided by claw-back provisions, many lawyers breathed a sigh of relief, thinking they had a safety net that would allow them to avoid waiver issues associated with production of electronic data.  While it’s true that the claw-back protections, expanded in scope in Federal Rule of Evidence 502, afford greater protection against inadvertent waiver, there are other traps awaiting the “information age” attorneys. Continue reading