Electronic Discovery Navigator

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E-Discovery: The Changing Game of Review & Analysis

E-Discovery: The Changing Game of Review & Analysis

"In the court case Omega Patents v. Fortin Auto Radio, both the plaintiff and the judge were unhappy with the defendant’s volume of e-discovery production, which included a few documents and just five emails in a universe of tens of thousands. The defendant subsequently searched for and reviewed more than 17,000 emails, of which 2,000 were produced for plaintiff review. The court was not pleased at the long delay and ruled that the defendant had not proved the undue burden and expense of the subsequent search. The court issued a monetary sanction against the defendant.

Manually sifting through large raw sources of data seriously delays discovery and risks poor results. Too many organizations still depend on a paper-based process where reviewers print, mark up, and pass around documents during the course of review. But given the huge growth in data volumes to be reviewed -- with less and less time to do it -- companies need e-discovery tools to initially analyze, de-duplicate, and present search results to human reviewers as a relational and prioritized list."

Year in Review: Courts Unsympathetic to Electronic Discovery Ignorance or Misconduct

Year in Review: Courts Unsympathetic to Electronic Discovery Ignorance or Misconduct

"Kroll Ontrack(R), the industry's leading provider of paper and electronic discovery, computer forensics and electronically stored information (ESI) consulting, jury consulting, and courtroom presentation services, today announced its analysis of the reported electronic discovery opinions and top five most significant discovery cases in 2008. Among the dominant topics reoccurring in the 2008 judicial opinions were the importance of creating and enforcing sound document retention policies, the use of proper search terms for production, and the consequences when parties fail to properly comply with discovery requests."

e-Discovery Compliance As Domestic And Foreign Litigation Grows

e-Discovery Compliance As Domestic And Foreign Litigation Grows

"Editor: Some have likened the impact of the financial crisis to the mushroom cloud of a nuclear bomb, with the financial services industry at the point of impact. Has that radioactive cloud of litigation spread to other industries?

Mack: We are now seeing an impact on businesses outside the financial sector. A company in any business with, say, 5,000 employees has multiple exposures to the financial crisis - with many of them presenting litigation possibilities. Companies of this size may invest their surplus cash in commercial paper and any reserves in longer-term debt instruments or in stocks. They may borrow from financial institutions to meet their long- and short-term needs. Their pension plan may also make investments, possibly in toxic securities like collateralized loan obligations (CLOs) or collateralized debt obligations (CDOs) or in the stocks or bonds of companies in the financial services industry. Those companies may bring litigation to recoup some of their losses, which might take the form of class or individual actions. And, they might be sued by their stockholders or pensioners for making unwise investments."

Bringing IT and Legal Teams Together for Discovery Could Help Mitigate Risk

Bringing IT and Legal Teams Together for Discovery Could Help Mitigate Risk

"One-third (30 percent) of attorneys and executives polled by Deloitte said their companies have no formal policies and procedures in place regarding legal holds, the process by which companies preserve evidence subject to discovery for lawsuits and other legal and regulatory matters.
"While the discovery process has become increasingly complex and therefore poses a significant challenge for corporate America, having no legal hold policy is a significant risk factor for companies," said Jeff Seymour, a principal in the Analytic & Forensic Technology practice of Deloitte Financial Advisory Services LLP. "Given the relatively low cost of establishing a policy framework and processes to address legal hold issues, it is surprising to see such a large percentage of corporate America lacking in this area."

According to attorneys and executives surveyed, responding to discovery requests has become significantly more complex (33 percent) and more costly (30 percent) during the past year. Less than one-third of respondents reported that their companies are very (20 percent) or extremely (7 percent) effective in managing the readiness aspect of the discovery process, which includes procedures and protocols to manage electronically stored information and hard copy documents in anticipation of discovery requests."

Electronic Evidence Discovery Moves Custodian Notification to Latest IBM Platform

Electronic Evidence Discovery Moves Custodian Notification to Latest IBM Platform

"Electronic Evidence Discovery, Inc. (EED), a leading international provider of eDiscovery services, today announced the upcoming availability of eDiscovery Process Manager 2.0 (eDPM 2.0). When combined with the technology and expertise of IBM's industry-leading enterprise content management (ECM) platform, eDPM 2.0 enables corporate legal organizations to effectively and efficiently manage the evidence discovery lifecycle. This new release from EED is the first custodian notification application to support the IBM P8 4.0 platform.

The strategic alignment of eDiscovery software on existing ECM investments enables corporate legal departments to effectively preserve electronic content for compliance, investigation and potential litigation needs while avoiding additional expenses. Significant savings in time and reduction of risk are the key benefits of automating the custodian notification process with EED's expanded support for IBM's ECM platform."

Best practices for the electronic workplace

Best practices for the electronic workplace

"A friend works in sales for a wireless communications company and reports that business is good. He says many small businesses continue to invest in new technology. These investments include granting employees access to company cell phones, Blackberries, laptops, remote access, internet, company blogs and social networking sites.

These new technologies can transform business operations and increase productivity. That’s all gravy.

If you’re not careful, however, your electronic workplace can become a real turkey by creating unintended employment-related liabilities. In these economic times, few companies have flex in the budget to cover legal claims arising from an employee’s misuse of company technology. Here are a few tips to manage the risk.

Update your computer use policies

Every company should include a computer use policy in its employee handbook. The policy should describe permitted uses of company technology as well as prohibited activities. Without a policy, the company will find it difficult to monitor employee use and take action against a bad actor. The company may also find itself liable for that employee’s bad acts. If you have a policy today, update it to comply with the rulings of the U.S. Court of Appeals (9th Circuit) in the case of Quon v. Arch Wireless.

Manage your electronic records

Each company should implement a written records management program. Recent changes to the Federal Rules of Civil Procedure highlight the need. A proper program will include a written document retention and destruction policy together with appropriate employee training. The program should also institute a document freeze (i.e. “litigation hold”) on relevant records if litigation is commenced or threatened. The costs of electronic discovery in litigation are substantial if your company does not have these policies in place. Further, absence of a good records management program may result in court sanctions in litigation."

E-Discovery: Preservation Means Knowing When to Hold 'Em

E-Discovery: Preservation Means Knowing When to Hold 'Em

"In the court case Consolidated Aluminum v. Alco, the defendant suffered monetary sanctions for failing to properly apply litigation holds. In spite of the fact that Alco had a litigation hold policy in place, someone was asleep at the wheel. There were several serious issues: Alco issued the holds after litigation had begun, did not make the holds broad enough, and did not enforce holds when key employees deleted relevant data

One of the federal rules of civil procedure's strictures requires that companies demonstrate consistent litigation hold practices. This does not mean that litigation holds must be issued willy-nilly. No one (with the possible exception of opposing counsel) believes that a company must lock up all its active data in case of potential relevance, no matter how slight. However, litigation holds do come into serious play when looming litigation is "reasonably anticipated" and when data has high potential relevance, no matter where it may be located.

This area is another example where human oversight and e-discovery technology can and should work together. Attorneys and IT should work together to decide what electronically stored information (ESI) should be retained for upcoming discovery actions, which individuals have custody of the relevant ESI, and where the files are located -- fileshares, email servers, archives, laptops. Once these decisions are made, then the firm can use e-discovery tools to search for and hold the relevant data."