Electronic Discovery Navigator

Seeing the Future of Search in E-Discovery

Seeing the Future of Search in E-Discovery

"The practice of "search" as part of electronic discovery is evolving before our eyes. Suddenly, what was once deemed industry standard is insufficient. Keyword search, the legal profession's preferred method for sifting through large collections of electronically stored information to find relevant or privileged information, had been widely accepted by courts and the legal community because its effectiveness was assumed and unchallenged.

Until now."

Discovery Sanctions Beyond Money

Discovery Sanctions Beyond Money

"It's been almost two years since the federal court system issued new discovery rules for electronically stored information. While there have been some high-profile sanctions for discovery violations since then, most observers say they haven't seen a huge uptick in penalties. But they do agree that judges are holding parties to a higher standard when it comes time to turn over digital materials in court.

"Judges are very quick to raise [discovery mistakes] as an issue, but they are not quicker as far as doling out penalties," says Liane Komagome, director of e-discovery at CRA International Inc., a Boston-based economic and business consulting firm. "The court is still even-tempered," adds Komagome, who was previously an in-house discovery counsel at both Wal-Mart Stores Inc., and Hewlett-Packard Co.

Experts say they aren't aware of any statistical surveys of sanctions since the federal e-discovery rules went into effect in December 2006. "I think there has been an increase in reported sanctions," says Brian Benjet, chief counsel for group insurance and litigation at Philadelphia-based Cigna Corp. But Benjet does acknowledge, "There is no question there is a trend in the plaintiffs bar [to raise e-discovery issues], where they understand they can gain tactical advantage and make it disproportionately expensive for corporate defendants."

Monetary sanctions can certainly hurt a company when they're imposed. Just ask Qualcomm Inc, which has been battling Broadcom Corporation in a nasty patent infringement fight. In January federal Magistrate Judge Barbara Major ruled that because Qualcomm had engaged in massive discovery violations, it had to pay $8.5 million in legal fees to Broadcom."

Fight Spurious Spoliation Allegations

Fight Spurious Spoliation Allegations

"The problem is that every case involving large amounts of electronically stored information (ESI) is ripe for a threat of sanctions for spoliation and the tactical advantage that such a threat can provide. That's especially true in light of the ease with which people can alter, modify or destroy ESI. Any party involved in litigation is vulnerable, even when operating in good faith and trying to implement a reasonable preservation plan. Alarmingly, in several jurisdictions attorneys do not have to show bad faith to seek sanctions against an opponent; they need only show that the negligent alteration or destruction of potentially relevant evidence occurred when the opponent was under a duty to preserve."

Trial Lawyers: E-Discovery Too Expensive

Trial Lawyers: E-Discovery Too Expensive

"Cases are being settled based on cost, not merit, according to results of a survey released today.

CIOs know that electronic discovery efforts are a financial drain. A new survey of trial lawyers shows that attorneys agree.

According to the survey (registration required), 85% of respondents believe the discovery process is too expensive. Seventy-five percent say electronic discovery is driving up overall discovery costs.

Eighty-three percent say litigation costs compel some cases to settle that could have been tried on merit. Almost 71% say that counsel uses discovery as a method to force a settlement.

Nearly 77% of trial lawyers also believe the courts don't realize how hard the e-discovery process is."

Putting E-Discovery to the Test, Again

Putting E-Discovery to the Test, Again

"In May, the "Geekspeak" column examined a pair of decisions -- United States v. O'Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) and Equity Analytics v. Lundin, No. 1:2007cv2033 (D.D.C. March 7, 2008) holding that any challenges to or defenses of search methodology (what I will refer to as "automated" searches) in producing e-discovery must be scrutinized under Federal Rule of Evidence 702, which governs the admission of expert testimony.

Both opinions were written by Magistrate Judge John M. Facciola, a highly respected and influential voice in e-discovery matters.

In Victor Stanley Inc. v. Creative Pipe Inc., No. MJG-06-2662 (D.Md. May 29, 2008), Magistrate Judge Paul W. Grimm, who, with Facciola, has written the most influential opinion on e-discovery in recent years, following O'Keefe and Equity Analytics in applying the Federal Rules of Evidence Rule 702 principles to the analysis of how search strategies were crafted. Victor Stanley raises the bar in deciding how to craft searches of electronically stored information, and provides valuable guidelines for practitioners."

'U Can't Touch This' Litigation Hold

'U Can't Touch This' Litigation Hold

"No one would confuse the stereotypical IT geek with someone as cool as one-time hip-hop mogul MC Hammer.

Yet, sometimes when the IT staff sacrifices lawyers' work habits on the altar of implementing a "litigation-hold" policy, it seems like Hammer's simple musical advice rules the day: "U Can't Touch This."

From the lawyers' side of the divide, the IT department's well-intentioned effort to comply with procedural rules to enforce a litigation-hold policy often seems like interference with our professional duties to clients, and how we do our jobs."

eDiscovery Drives Legal Costs Up

eDiscovery Drives Legal Costs Up

"As it turns out, companies don’t usually understand the importance of knowledge and document management, until they are legally required to find and hand over all documents. The process of ediscovery is usually complicated by the fact that companies don’t know where their information lives.

Or so says a recent study by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System.

Turns out, many companies are still not in the habit of retaining and organizing their documents in a logical structure. In fact, it’s so hard to uncover materials related to the legal cases that costs are rising as a result. Out of the 1,400 lawyers surveyed, 87% said that electronic discovery is too costly and driving up the price of litigation."

Legal, Meet IT...IT, Meet Legal

Legal, Meet IT...IT, Meet Legal

"At most organizations, the lawyers handle the legal work, IT oversees the technology and the two departments rarely (if ever) cross paths. That's simply no longer acceptable in an age where information is paramount to success and legal requests to support litigation now routinely involve electronically stored information (ESI), such as e-mails. It is more important than ever for IT and legal to work together hand in hand to develop and implement legal holds policies and practices, or risk costly fines and irreparable damage to the company's reputation.

A new benchmark report from the IT Policy Compliance Group, "Improving Results for the Legal Custody of Information," shows a direct correlation between significant cost savings and mature legal holds practices. While the average costs of legal data holds for large enterprises with normative practices is between $500,000 and $9 million, those with the least-mature practices reported spending between $1.5 million to more than $28 million annually. In contrast, the most mature legal holds practices led to large enterprise costs of only $120,000 to $2.6 million annually. Across all business sizes, the IT Policy Compliance Group research shows those with the least-mature practices are incurring expenses that are more than 10 times those of their peer companies with more mature practices."

E-discovery's Impact on Litigation

E-discovery's Impact on Litigation

"Discovery as we know it is on the brink of monumental changes that will forever impact and alter the way litigation is conducted. With the ushering in of the “electronic age,” we have seen changes in the way we file documents and get information. Federal courts and bankruptcy courts were pioneers in electronic filing and now the overwhelming majority of documents are required to be filed electronically in these courts. State courts have now begun to emulate their federal counter-parts and have taken up e-filing and e-correspondence. The courts and lawyers have more direct interaction as a result of th “e-age.” E-discovery is the most recent concept to arrive on the legal scene and is quickly making its mark on both the federal and state statutory landscape.

In December 2006, the federal rules of civil procedure were amended to address the issues relating to e-discovery. The year 2007 has been described by many practitioners in the federal system as the year in which litigation and discovery were forever changed. With the changes to federal rules of Civil Procedure 26, counsel are now required to discuss in detail the discovery of electronically stored information within the first 60 to 90 days. The courts are now requiring that electronically stored information be made a part of the discussions at the initial case management conference."

An introduction to computer forensics

An introduction to computer forensics

"However, this is a very old technique but now it has been changed a lot because of technological advances, modern tools and software’s which makes Computer Forensics much easier for Computer Forensic Experts to find & restore more evidence/data faster and with more accuracy.

Computer forensics has change the way digital evidence is gathered & used as evidence of a crime & it is done using advanced techniques and professional carpet cleaners A computer forensic expert uses these techniques to discover evidence from an electronic storage device for a possible crime. The data can be from any kind of electronic device like Pen drives, discs, tapes, handhelds, PDAs, memory stick, Emails, logs, hidden or deleted files etc.

Most of us think that deleting a file or history will remove it completely from the hard disk drive. In realty, it only removes the file from the location but the actual file still remains on your computer. It is easier to track what has been done on your computer upholstery cleaning berkeley difficult to say by whom though it is possible to alter or delete the data completely from your storage device. It depends on computer forensic expert’s skills how well he can find and restore the data without any loss or change."