Ride The Lightning

Judge Waxse on Reducing Combat in E-Discovery

Last week at ABA TECHSHOW, John had the pleasure of lecturing with Magistrate Judge David Waxse, Judge James Rosenbaum and noted litigator Bruce Olson on "E-discovery in Small Cases."

The entire session was educational and engaging, but I realized, as I heard Judge Waxse repeat a story he has told before, that I had never incorporated it in a blog post. Clearly a wise man, Judge Waxse noted that he was less than patient with the endless e-discovery squabbling among counsel. He therefore devised a plan to tamp down the combat.

As he told the audience, he generally hears one side say, "Your Honor, I was being perfectly reasonable in our e-discovery negotiations, but that other guy was behaving like an a******."  Forgive the language, but it is a quote. Judge Waxse's way of dealing with this situation is to say, essentially: "I want you two to video your next meeting - next time, you either bring me an agreement as to how you're going to deal with e-discovery or you bring me the video.

As he notes wryly, he has yet to watch a video.

As a student commented to the judge, "lawyers are like particles in physics - they change when observed."

Nifty tactic Judge Waxse - and most effective.

E-mail: snelson@senseient.com  Phone: 703-359-0700

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Facebook More Popular Than Google: E-discovery Implications

According to Hitwise research, Facebook is now the most visited website in the U.S., edging out Google. Apparently, we are no longer as interested in finding information as we are interested in "being at the party." 

For anyone who thinks they don't need a Facebook business presence, this should certainly be a wake-up call.

And for anyone who practices law or is involved in e-discovery, this is yet another indicator of how important it is to gather evidence from social networks. Two years ago, we saw very little evidence coming from social networks. Today, there is a tsunami of evidence. In fact, divorce lawyers pursue this evidence with nearly rabid fervor as it so often leads to smoking guns. At this point, we've seen social networking evidence in virtually all types of cases.

Since so many people use employer provided computers/cell phones to access social networks, there are also profound risk management issues to be addressed. It has been our experience, from the evidence we've seen, that blocking access to social networks through policy simply doesn't work. And while it can be blocked through technology from computer networks, that simply seems to divert employees to their cell phones, often employer-provided cell phones. Very few employers seem to be blocking (thus far) the use of social networking sites on cell phones.

Of course, given the business I'm in, anything that provides more smoking guns is a good thing. The faster technology moves, the more sources of evidence seem to appear. Great for those of us in e-discovery, but an infernal headache for employers.

E-mail: snelson@senseient.com    Phone: 703-359-0700

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How Lawyers Make Themselves Invaluable to Their Firms: They Learn E-Discovery

John and I lectured to the New York City Bar Association last week. New York law firms were decimated last year by the economy and they are still in retrenchment mode. Our hosts had asked us to answer this question in our presentation: "What could I do that would give me job security?"

We gave a lot of possible answers, but as John and I deliberated about the MOST significant answer, we chose "learn e-discovery" as our #1 answer. Why?

We have found very few law firm partners that have significant e-discovery expertise. Most are reliant on associates and paralegals. Even among the associates, we have seen only an handful with true expertise. Given that ESI is ubiquitous, it is stunning that the percentage of those with a deep understanding of e-discovery is so woefully low.

Whether you are an associate or a paralegal, if you understand the law, the rules, the cases and the process of e-discovery, you are very likely to be seen as indispensable. If you know how to select good vendors and how to talk their talk and pierce the inevitable sales talk, you will help to place your firm's e-discovery in good hands. If you understand how to contain costs in EDD, you will be beloved of your firm and your clients.

There's no magic potion for making yourself bullet-proof in a law firm - but this is as close as it gets.

E-mail: snelson@senseient.com Phone: 703-359-0700

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No, No, You Can't Do That: Lawyers Surreptitiously Friending on Facebook

Recently, we've seen a deluge of social networking evidence in court, especially in family law cases. It's extraordinary how fast this tidal wave came at us. Most of the time, the evidence comes in easily since the other side doesn't deny that it is authentic. Rigorous authentication is very much the exception in most courts.

One ethical question keeps popping up in our CLEs. Lawyers want to know how to glean evidence from social networking sites. Now that so many people have put privacy settings on their social networking sites, attorneys must get the data through discovery. They cannot go directly to the social networking sites, which may not disclose personal data under the Electronic Communication Privacy Act. Courts have been quite clear about this.

Therefore, the attorneys must request the data from the user, who in turn can request their own data from the social networking sites. A nifty shortcut is getting the data through a third party. Let's talk about Facebook (which, it was announced yesterday, has now surpassed Google as the most heavily trafficked site on the Internet - apparently we are less interested in researching information and more interested in joining the party). It also appears that we are all eager to confirm just about anything with two legs as a friend. To put a new spin on an old chestnut, we appear to believe that he who dies with the most "friends" wins.

Certainly, if they know someone, they are likely to confirm them as a friend. Commonly, in a family law cases, a spouse will ask a mutual friend of both parties to "friend" the other party and become an informer. The spouse will then bring the data to the lawyer. I see no ethical problems with using that data since the spied upon spouse acted to confirm someone as a friend, thereby opening up their site for inspection. It does of course amaze me that lovers will discuss their affair via Facebook and make social plans there, but it's good for business, so I guess I won't complain . . .

But here's the caveat we lecture about. Most lawyers are well aware of the ethical prohibition against the use of deceit and would not attempt to friend the spouse whose data they want, whether using their own name (which might not be recognized) or (obviously) a fictitious identity. As the Beatles sang, "No, no, you can't do that." And they know they CAN accept and use evidence procured by deceit if they had no part in it.

The dicey part comes when their client asks them about the legality of getting a third party to "friend" their spouse in order to obtain evidence in the case. I've had attorneys argue that telling their client the law isn't engaging in deceitful conduct. I don't agree. When the client asks this question, I think the attorney is now implicated in the conduct because explaining the law (even with a caveat that the lawyer cannot recommend deceitful conduct) is going to be seen by the client as tacit approval. I recognize that there is a legitimate argument to be made on both sides here, but when it comes to skirting the boundaries of ethics, my choice to is steer waaaay clear of the line.

E-mail: snelson@senseient.com   Phone: 703-359-0700

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Litigation Holds: Do You Need an 18-wheeler or a Scooter?

My friend Brett Burney wrote an interesting column for Law Technology News about legal holds, specifically focusing on legal hold software from PSS Systems, which offers a product called Atlas Suite.

Brett, as always, is refreshingly candid. He likes this product, but acknowledges that this is a "big company" product. Atlas is overkill for small and medium sized entities, which can manage legal holds with far less expensive software - or no software at all.

The Atlas product looks impressive and complex - be sure to read the article for full details. Except of course for pricing, which I couldn't easily find on the website either. This always makes me suspect that the price is exorbitant . . .

Still, if Brett gives it a good review, it is well worth looking into for those companies with thousands of employees. As Brett points out, implementing a successful legal hold is like lassoing a squirrel in a herd of cattle. Nice imagery Brett - and accurate.

E-mail: snelson@senseient.com   Phone: 703-359-0700

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EDna is Still Reeling in Suitors and the Press is Interested

Much as I want to move on to other subjects, the EDna challenge has generated a lot of mail. Another suitor for EDna's hand has appeared. Also, we had a call from Lawyers USA today and will be interviewed tomorrow about EDna, who is apparently enjoying her 15 minutes of fame.

The new suitor is Bob Krantz, who wrote me on behalf of Mindseye Solutions and its e-discovery technology TunnelVision. Herewith, his note:

Sharon,

Thank you for highlighting this article from Craig Ball.  I love the message behind the Edna Challenge and feel that there is a tremendous need for firms of all sizes to have access to some form of eDiscovery technology in order to perform discovery more efficiently and defensibly.

I am one of the co-founders of Mindseye Solutions and our eDiscovery technology TunnelVision has met the Edna challenge.  Through the use of our Pay as you Go licensing model Edna would be able to structure and review the materials contained on the DVDs efficiently and defensibly for under half of the allotted budget with no strings attached.  Once Edna identifies her production set she can then use a portion of the remaining budget to purchase a license of Adobe Acrobat in order create a standardized production of documents relevant to the case including annotations and document numbering.

TunnelVision not only allows Edna to handle the data for less than the budgeted amount but it also gives her access to analytical tools often only found in higher cost solutions.  The analytical and reporting capabilities empower Edna to structure and index the materials in order to apply various filtering options, sample and validate the various data reduction strategies, and most importantly TunnelVision allows Edna to completely document each step of the process in the event that strategies are ever called into question.

I would be lying to you if I said TunnelVision was designed specifically to support scenarios similar to the Edna challenge.  Our solution is designed to meet the most demanding requirements of large scale discovery in terms of speed and scale while also implementing a simple and easy to understand workflow and user interface so anyone can work within the system.  We created the Pay as you Go licensing model in order to reduce the risk of bringing software in-house as it doesn’t lock firms into buying software licenses in preparation for cases but instead gives them access to the software should the need arise, almost creating a form of “eDiscovery Insurance.”  As a byproduct of this licensing model and in reading the Edna Challenge we realized that we had created a means for smaller firms and solo practices to gain access to innovative ediscovery technology on a case by case basis for a reasonable price.

As always Craig Ball has written a very creative and thought provoking article that highlights a major challenge within our business that needs to be addressed.  Thank you for continuing the dialougue and thank you for a great article.

Best Regards,
Bob Krantz

Bob Krantz
Mindseye Solutions
~Simplify eDiscovery~
(o) 888.770.3876
(c) 202.246.5552
www.mindseyesolutions.com

Thanks for writing Bob - EDna sure has become one very popular woman. I think only Craig Ball can bless one of the suitors . . .

E-mail: snelson@senseient.com   Phone: 703-359-0700

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How Scary is Electronic Discovery?

Yesterday, John and I had the pleasure of presenting a CLE on Ethics and E-Discovery to the National Alcohol Beverage Control Association. In the raft of kind remarks proffered after the seminar, it struck us both that the word "scared" kept cropping up.

No doubt it is scary to hear that lawyers (not just clients) are being sanctioned by the courts for incompetence or malfeasance relating to electronic discovery. But it is also true that lawyers are just beginning to realize how much they don't know about such things as litigation holds, preservation notices, search methodologies, sampling, production formats, etc. While we try to educate and not to scare, I guess we understand why the education, in and of itself, can be pretty frightening to attorneys unaccustomed to electronic discovery.

The crown jewel of unusual compliments came when we encountered a lawyer coming out of the rest room. After telling us how much he enjoyed our "scary" presentation, he concluded by saying "That's why I was in the bathroom - I had to change my underwear."

That's one we'll always remember. :-)

E-mail: snelson@senseient.com    Phone: 703-359-0700

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EDna Has Multiple Suitors!

In my last post, I asked if the EDna challenge created by Craig Ball had been met.  One suitor for EDna has written me and now we have another suitor. I have to laugh to think that my enthusiastic friend, Rob Robinson, has already beaten me to the punch by printing this in his blog, but since the original was in my mailbox, I'll offer it up here too. I am the turtle to your hare Rob. :-)

Thanks for writing Michael. We offered to take a look at the Digital WarRoom's products and extend the same offer to Affirm Discovery.

Hi Sharon, 

Yes, it has but I don’t believe GGO are the ones that have met it.

According to your post GGO is offering “an appliance” based on perpetual licensing. The information that is posted does not provide any pricing information so how is anyone to know whether they have met the challenge or not. Based on the limited information provided, namely “In fact, we have built a product roadmap around the EDna challenge. We will be releasing perpetual license appliances with over 90% functionality similarly offered by products from Clearwell, Exterro, and Recommind, for about 1/10 price.” Its more conceivable to me that this is just another example of vendor propaganda!

Last time I checked, Clearwell, Exterro, Recommind or any of the other vendors listed or not in Gartners market scope do not offer anything for $10,000. ( 1/10 of $10,000 is $1000.00) which is the maximum amount that EDna is willing to spend.

The challenge has been met by a company named Affirm Discovery and their products “Native File Collect” and “Native File Lock”. Their products will not be released to the public until next month but we have been involved in the beta testing and based on the testing we have done, I am confident that Affirm Discovery has met the EDna challenge. The best part about it is that anyone can use it. There is no hardware, appliance, SSH super Tunnel, or any of the other hype to install and you don’t have to sacrifice your first born child to answer a discovery request. It’s a plain and simple solution at a very effective price. The solution is launched from the web and all processing takes place on the clients computer. No client content other than the path and file name of the file collected and the size of that file are ever transferred to Affirms website.

Native file lock (in brief) is a self contained database that houses the collected native file, extracted meta data and text, capability to TIFF on the fly and redact, an internal viewer, and tagging capabilities. Sub deliverables of Native File Lock can be created from the main deliverable and distributed at no charge. And if none of that makes a person happy, they can export a full production with load files and extracted text to load into the main review platforms for their own use. The pricing is a $25.00 transaction fee for every deliverable download (less than most vendors charge for a DVD) and a charge of $0.30 per MB for data processed (Calculated on the file size that is identified with Native File Collect).

 Some Features:

1. Deliverable building application launched from the web site(can have a user account and be invoiced monthly per usage amount or be an express user and pay per use via CC)

Account holders have a dashboard and are able to assign sub accounts and preset settings for the collection, processing and deliverable creation (FREE)

Load native files without altering meta data, extract meta data into a table view, and extract text of loaded files

View multiple file types with the internal viewer, also supports audio and video files

Open excel, power point and word files via native application if desired (no changes can be saved or permanent alterations made)

Files with no extracted text are identified by an icon in the file tree view

Specify soft numbers for files that are loaded

Extract attachments from email when loaded into separate records

Create TIFFS on the fly of supported document types

Create customized tags

Ability to tag or untag files individually or as a group

Ability to redact tiffed files and have the redacted images replace the native file in a production

Ability to create a sub deliverable with the same or customized functionality as the original for distribution to other parties

Index based search ability (multiple options)

Filter (date, deduplication, file type…etc), and query ability for tags and table views

Ability to add additional .NFL files to the deliverable for review, combination and sub deliverable creation

Batch TIFF by tags

Ability to burn in TIFFS with bates and designation if desired

Ability to export productions with load files to load into other review platforms if desired

The basic workflow:

1. Affirm offers a free download of an application to identify files that need to be collected. The download allows a custodian to select the files they wish to be collected. Outlook email is supported by a plugin and can be selected for collection at the message level

Once the files and emails have been identified, the path to the files and their sizes (reported by the file system) are uploaded to the web site (no file content is uploaded and this is the size that is calculated for invoice)

The user authenticates and the file list to be collected is populated

Several options such as numbering, password protection, output location, text extraction, indexing...etc, are selected by the user (if they have not been pre selected by an account holder)

User selects “Create Deliverable”

Application with the file location map and desired deliverable settings is downloaded to the client side and runs

Files are collected based on the file lists and deliverable is created based on settings

User then sends the deliverable to counsel

Counsel then reviews and if applicable creates a sub deliverable or whatever they want to do

Production is made to opposing

The basic use case:

The lawyer or paralegal have a new case assigned. The client and his/her organization has data that is responsive to the discovery request. The budget is tight and the client states that they want to collect their own data but do not have the necessary tools and ask for guidance. Funds to hire a team of forensic consultants or even one for that matter, is not in the budget, nor does the client see the value anyway, after all, it’s a small matter. The paralegal is an account holder at Affirm discovery. She/he logs in and creates a new matter for tracking. After speaking with the client, a list of custodians that have relevant data are identified and their email addresses are supplied to the paralegal. The paralegal adds custodians to his/her newly created matter based on the information provided by the client. The paralegal assigns each custodian a username and password to the site and then sends them all a similar instructional email. They are to go to the site of Affirm Discovery and download the FREE application used to identify the files and emails that are to be collected. Once they have the application installed, they are to select the emails and files that are relevant to the request and that have been explained in the lit hold that was previously distributed. Once the files are selected/identified they are to connect to the Affirm website (using the tool). The individual custodian is presented with a login screen, they enter the username and password supplied to them in the instructional email. Once they are on the web site and the list of files that they have identified for collection is verified they would be presented with a list of settings. Since the custodians have never been through this process they are very happy that the paralegal has predefined the settings for each custodian (this gives the paralegal great confidence that she/he will get exactly what they want as far as format). The custodian selects the “Create Deliverable” button and the process begins. Once the collection process is over on the client side, the custodian is instructed to send the deliverable that was created via external hard drive or CD to counsel for review.

Once in the hands of counsel, they can decide to combine the entire collection (all deliverables from the client) and run a number of queries to filter and deduplicate to make review easier and faster. Custom tags are set up and either batch printing can occur for files that need to be redacted or they can be printed as the review progresses and tagged for later production.

I could go on and on, but I think you can see from this email that I am bringing to your attention a very needed and useful application.

If you have any questions please feel free to contact me as I have been authorized to respond to any questions you may have.

One thing is for sure, once this offering hits the market, there will be some very unhappy service providers.

Please feel free to contact me if you have any questions.

Best regards,

Michael A. Bean, EnCE
President, In2itive Technologies
www.in2itivetechnologies.com

E-mail: snelson@senseient.com    Phone: 703-359-0700

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Craig Ball's EDna Challege: Has it Been Met?

Our friend Craig Ball created quite a stir with his EDna challenge, involving an old school chum with a small case who wanted to conduct an in-house EDD review. Craig challenged a number of experts to come up with a game plan and the technology to go with it.

That was a while back, but I recently received e-mail from Lynne Forristal Gallivan, an attorney and e-discovery consultant with Gallivan, Gallivan & O'Melia LLC who says that they have met the EDna challenge.

Here's her e-mail, with non-substantive edits of mine for clarity: 

Dear Ms. Nelson,

With regard to your recent posting on your Ride The Lightening blog discussing Craig Ball’s EDna challenge, Mr. Gallivan mentioned the EDna challenge in his MyLegal.com radio interview on January 26th 
 
Bill Gallivan, Co-Founder and CEO of GGO (Gallivan Gallivan & O’Melia LLC), the company behind the Digital WarRoom® Suite of e-discovery software, was interviewed by Lisa DiMonte of MyLegal.com on Blog Talk Radio on January 26, 2010.

In fact, we have built a product roadmap around the EDna challenge. We will be releasing perpetual license appliances with over 90% functionality similarly offered by products from Clearwell, Exterro, and Recommind, for about 1/10 price. We are a privately held consultancy and development shop with no VC or investor pressure and, according to Gartner reports, the only firm so positioned.

Our hope is that in the not too distant future, you will be reading, and we hope, blogging, about our victory in the EDna challenge!

Lynne Forristal Gallivan
Attorney/Legal E-Discovery Consultant

In a subsequent e-mail, she offered the following thoughts from her company:

“Many e-discovery vendors (and particularly service providers) experienced pricing pressures over 2009, as enterprise customers curbed out-of-control legal costs and moved toward in-house products that better fit their budgets and needs for ROI. Digital WarRoom tackles several significant pain points for in-house e-discovery, providing frequently outsourced functions such as processing, native document review, TIFF and native file production and hosting, as well as bringing greater predictability to costs with a per-user license fee. The company boasts extensive legal expertise and field experience…”

I have no experience with Digital WarRoom but would welcome comments from readers. In general, I am cautious about DIY efforts, most especially because it's not just about technology - expertise counts as well. But I'm game to see if the EDna challenge has been met, so yes Lynne, I'm happy to meet with someone from your company. Curious to see what the guru himself (that would be you Craig Ball!) thinks.

E-mail: snelson@senseient.com     Phone: 703-359-0700

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The Rebellious Millennial Employees: We Love the Evidence They Provide

So you have a policy against social networking on work computers? Who cares? Probably not your Millennial generation employees. 45% of them use social networking at work whether or not their employers have imposed policy restraints. Of course, you can use technology to block them from visiting these sites on their computers. And then they reach for their cell phones chanting the Millennial mantra, "There's an app for that."

A hat tip goes out to another friend and colleague, legal tech visionary Dennis Kennedy, who sent me a terrific report from Accenture called "Jumping the Boundaries of Corporate IT" which examines the Millennials' use of technology.

The clear message of the report is that it isn't easy to control Millennials. You attempt to fence them in and they are not only pissed but they'll find a way to jump the fence. Or unlock the gate. Or bust straight through the fence. Remember the karaoke favorite "Don't Fence Me In?" Never is that more true than with the Millennials.

Loading roque apps, which should of course be blocked by technology but usually isn't, is a favorite pastime of the Millennials. Not only does this create security holes but new sources of evidence.

This is actually a fun report to read, full of headings like "Says Me."  "Dude, That's So Yesterday." "Ask Forgiveness, Not Permission."

The final section is full of quotes from Millennials, some of which would give anyone in charge of IT security a coronary.

29% of those surveyed say that they don't know if their company has a social networking policy. 17% say a policy has never been published. 11% say that what the company has published is too complex to understand. 11% say - in essence - screw the policy, I'll do as I see fit.

This is great read not only for employers and IT managers, but also for those of us who do computer forensics. I joke about the iPhone, but it is evidence-rich and we've located many a smoking gun there. One of the things that struck me as I read the report was that it helps to determine where to look for evidence. If you understand how Millenials think and their proclivity for defying company policy, you'll look for things that policy tells you shouldn't exist. But they do - and we love these miscreants for the bounty they allow us to harvest.

E-mail: snelson@senseient.com   Phone: 703-359-0700

www.senseient.com

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