The following are useful links for reference materials
and background information to help in understanding the field. Neither
LAWPRO nor The
Sedona Conference® endorses the products or services
offered by commercial companies on the list.
Information on Electronic Discovery
Technology Daily Digest,
edited by Jeffrey Brandt, Editorial Advisory Board Member at
Technology News (LTN). Daily overview of technology news for technology
managers in law firms, corporate legal departments, and others serving
the legal market. News sources include hundreds of blawgs, legal vendor
web sites, and traditional publications. Free e-mail subscription.
Kroll Ontrack Newsletter Center for subscriptions to Case Law,
Computer Forensic and Data Recovery newsletters.
Sedona Conference® Glossary: E-Discovery & Digital Information
Management. A Project of The Sedona Conference® Working Group
on On Electronic Document Retention & Production (WG1) RFP+
Group. Third Edition. September 2010.
Sedona Conference® Cooperation Proclamation. See also A
Bull’s-Eye View of Cooperation in Discovery, Steven S.
Gensler, published in The Sedona Conference® Journal, Volume 10
Supplement, Fall 2009.
- Electronic data discovery news and analysis. A joint project of Law
Technology News and Law.com legal technology. Edited by Monica Bay and
Sean Doherty, with posts by the heavy-hitters in the e-discovery
American College of Trial Lawyers Task Force on Discovery,
published March 11, 2009. The goal of this joint project with the
Institute for the Advancement of the American Legal System was to
examine discovery problems in the civil justice system and make
recommendations for reform, if appropriate. Ultimately the goal is to
propose Principles whose application will result in a civil justice
system that better serves the needs of its users. Note that Campbell J
of the Ontario Superior Court of Justice was a participating member of
the Task Force.
Rand Institute for Civil Justice: The Legal and Economic Implications
of Electronic Discovery. 2008. This paper reports on
exploratory research to identify the most important legal and economic
implications of electronic discovery and to develop a research plan in
this subject area for the RAND
Institute for Civil Justice.
Slaw: Principles of Litigation Management. This thoughtful
article, published on July 31, 2008, in the collaborative weblog Slaw, offers 10
principles for law firms facing the challenges of electronically stored
information in litigation.
Discovery Reference Model,
a Wikipedia like site developed for the EDRM Project established in
2005 to develop guidelines and standards for e-discovery consumers and
providers. From the original model to the current projects, EDRM has
helped e-discovery consumers and providers reduce the cost, time and
manual work associated with e-discovery.
FIOS E-Discovery Knowledge Center.
Fall 2005 LAWPRO Magazine. Members of the eDiscovery
Sub-Committee of the Ontario Discovery Task Force published articles in
this edition of the LAWPRO
magazine devoted to eDiscovery. Lawyers' Professional
Indemnity Company (LAWPRO) is an insurance company that is licensed to
provide professional liability insurance and title insurance in
numerous jurisdictions across Canada.
of Complex Litigation and Guidelines
Sedona Canada Principles Addressing Electronic Discovery. A
Project of The Sedona Conference® Working Group 7 (WG7) Sedona Canada.
Chapter 8 of the Civil Justice Reform Project (Ontario)
discusses the findings, issues and recommendations related to
discovery. Access to the complete summary of findings and
recommendations is available here.
for the Discovery of Electronic Documents in Ontario,
published by the Task
Force on the Discovery Process in Ontario in November, 2005.
In 2004, a sub-committee of the Discovery Task Force, chaired by the
Hon. Mr. Justice Colin Campbell, was formed to consider issues relating
to electronic information and electronic discovery. To help members of
the Ontario bar deal with e-Discovery issues, The Discovery Task Force
Sub-Committee created e-Discovery Guidelines or best practices. The
e-Discovery Guidelines will be updated as practices develop and evolve.
The Committee welcomes input from members of the profession.
Guide to Cost‐Effective E‐Discovery, published by the
eDiscovery Institute in October 2010, by Anne Kershaw and Joe Howie.
Discovery Deskbook - Chapter 13: Technology Considerations.
Published in July 2009. “Chapter 13: Technology Considerations” was
authored by Deloitte Financial Advisory Services and
dives into a number of cost-effective and efficient technology options
for use during electronic discovery.
Discovery of Electronic Information: A Pocket Guide for Judges
by Barbara J. Rothstein; Ronald J. Hedges; Elizabeth C. Wiggins 2007,
26 pages (In Print: Available for Distribution) This pocket guide helps
federal judges manage the discovery of electronically stored
information (ESI). It covers issues unique to the discovery of ESI,
including its scope, the allocation of costs, the form of production,
the waiver of privilege and work product protection, and the
preservation of data and spoliation.
Sedona Principles Addressing Electronic Document Production, Second
Edition (June, 2007). The Sedona Conference® is a non-profit,
501(c)(3) research and education institute dedicated to the advancement
of law and policy in the areas of antitrust, complex litigation and
intellectual property rights. The Principles were initially published
in January, 2004. The Sedona Conference continues to refine and update
the commentary as the law evolves. The Second Edition includes updates
throughout the Principles and Comments reflecting the new language
found in the amended Federal Rules and advances in both jurisprudence
and technology. The Introduction has been expanded to include a
comparison of The Sedona Principles with the amended Federal Rules.
Particular attention has been given to updating the language and
commentary on Principle 12 (metadata) and Principle 14 (the imposition
U.S. Conference of Chief Justices -
Guidelines for State Trial Courts re Discovery of Electronically-Stored Information.
Approved August 2006, and available on the website of the National
Center for State Courts. These Guidelines are intended to help reduce
this uncertainty in state court litigation. They are designed to
stimulate the thinking of state rules revision committees, and to
identify the issues and factors that may be considered by trial judges
faced by a dispute over e-discovery. The Guidelines should not be
treated as model rules that can simply be plugged into a state’s
procedural scheme; they have been crafted only to offer guidance to
those faced with addressing the practical problems that the digital age
Manual for Complex Litigation, Fourth, published by the U.S.
Federal Judicial Center in 2004. Close to 900 pages, of which discovery
involving electronically stored information and its preservation,
collection, processing and production is a part. Available in .PDF
format for searching.
case law digests
This digest is maintained by the members of the Sedona Canada
Working Group (WG7). Originally created by the
eDiscovery Sub-Committee of the Task Force on the Discovery Process in Ontario,
these case law lists give a brief summary of the case extracted from
the decision along with a direct link to it in the Canadian Legal
collections. CANLII is a public and free virtual law library of
Canadian legal materials.
(Common Law) E-Discovery Case Law Digest (Updated June 2,
(Civil Law) E-Discovery Case Law Digest (Updated October 20,
Law: Case Summaries, from K&L Gates, a law firm based
in Seattle, Washington. Continuously updated.
Ontrack®: Electronic Discovery and Computer Forensics Case Law.
Summaries of important court decisions impacting the areas of discovery
and computer forensics. Organized by topic. Continuously updated.
FIOS Case Law and Rules. Case law relevant to e-discovery,
organized by topics.
of Civil Procedure and Practice Directions
of Professionalism for Advocates and Principles of Civility for
Advocates. April 2009. Written by the Advocates' Society,
with an Overview by The Honourable Dennis R. O'Connor, Associate Chief
Justice of Ontario, and an Introduction by The Honourable Warren K.
Winkler, Chief Justice of Ontario. Comment se comporter.
Discovery: Discovery of Documents in Federal Courts (ALRC
Report 115), published by the Australian Law Reform Commission on May
25, 2011. The Report makes recommendations about, among other things:
the production and inspection of documents prior to discovery; when
parties should file discovery plans; best-practice guidelines on the
formation and content of discovery plans; judicial and practitioner
training; the role of registrars and referees; costs orders; pre-trial
oral examinations; and data collection.
to the Alberta Rules of Court came into effect November 2010.
to the British
Columbia Supreme Court Civil Rules came into effect July 2010.
Circuit Electronic Discovery Pilot Program, Phase One, October 2009 -
May 2010. Statement of purpose and preparation of principles
for implementation and evaluation on selected cases. The Report
on Phase One has been now published, and the Second Phase
started in May 2011.
Ontario Regulation 438/08 made under the Courts of Justice
Act introduced changes to the
Ontario Rules of Civil Procedure. Note addition of
Proportionality language to
Rule 1.04 in the Interpretation section,
as well as
Rule 29.1 Discovery Plan and
Rule 29.2 Proportionality in Discovery. Note that these Rules
came into force in January 2010. Fraser Milner Casgrain hosts a blog
Rules of Civil Procedure - Summarizing the Developments"
reporting cases related to the new Rules.
Directive No. 6 of the Court of
Queen's Bench for Saskatchewan (E-Discovery Guidelines) was
issued in September 2009. Draws
heavily on the Sedona Canada Principles. PD No. 6 starts on
Report of Lord Justice Jackson, Civil
Litigation Costs Review,
January 2010. Chapter 3 deals with
Proportionate Costs (from page 53), and Chapter 37 discusses Disclosure
(from page 390). The ESI Equestionnaire is included as a Schedule at
the end of
Practice Direction 31B - Disclosure of Electronic Documents.
Court of Victoria, Commercial Court, Practice Note 1 of 2010.
Protocols. To support the ethos of narrowing the issues prior
to the use of proceedings and encapsulate best practice, the CPR
introduced “pre-action protocols”. They are given force by Practice
Direction – Pre-Action Conduct.
Practice Note CM6 -
Electronic Technology in Litigation, was issued September 25, 2009, replacing Practice Note 17. The
new Practice Note sets out the framework for the use of electronic documents in proceedings before the Federal Court
and directs litigants and practitioners to a number of protocols and checklists (the related materials).
Nova Scotia Barristers'
Scotia Annotated Civil Procedure Rules, on Part 5, Rule 16.
March 2009 and continuously updated. The Judges of the Nova
Scotia Court of Appeal and the Supreme Court of
Nova Scotia made new Civil Procedure Rules on June 6, 2008. All the new
rules came into effect January 1st, 2009 except as provided in Part 19
- Transition, Rule 92. Note in particular Rule 16 - Disclosure of
Tax Court of Canada
Rules (General Procedure) were amended in November 2008.
Here is a link to
Discovery of Documents section of the Tax Court of Canada
Rules (General Procedure).
Rules of Civil Procedure on the Cornell University Law School
Legal Information Institute (LII) website.
to the Federal Rules of Civil Procedures, including Committee
Notes. Amended Rules came into effect December 2006. Ralph Losey hosts
a site with the committee notes for Rules 16, 26, 34 and 37, available here.
Practice Direction 31A - Disclosure and Inspection.
This Practice Direction supplements
CPR Part 31.
Last retrieved on April 29, 2011.
and Marginal Utility
Question of Proportionality. April 2011. Robert Todd writing
in Canadian Lawyer Inhouse."New proportionality rules have won
applause, but they also have the potential to place a heavy burden on
litigants in complex cases."
Conference Proposes 6 Principles of Proportionality,
Conor R. Crowley and Sean R. Gallagher, April 15, 2011, in National Law
Journal, on LTN (Law.Com). Article summarizes the six principles laid
out in Working Group 1's commentary. The commentary discusses the
origins of the doctrine of proportionality, provides examples of its
application, and proposes rules and tools that courts and counsel can
employ to achieve proportionality in the discovery process.
Doctrine Reduces E-Discovery Costs and Abuses, March 1, 2011,
by Michael Kozubeck, published in InsideCounsel. Although there are no
bright lines, there are several factors that determine what is
proportionate in discovery, including the relative size and resources
of the parties, the estimated cost of the discovery effort in
comparison to the amount in controversy, and the likelihood that the
requested discovery is relevant to the claim or the defense. Article
discusses the phased approach where phase-one discovery is limited to a
handful of key custodians [people who have control over relevant ESI],
allowing both sides to review that data and then determine whether
additional discovery is required.
the Review and Production of ESI: A Measured Approach.
December 2010. Susan Ardisson. "While this option has always been
availa-ble, recent case law and commentary suggest that its use is
likely to increase as parties look for ways to handle the ever growing
volume of potentially rele-vant electronic evidence and the costs
associated with its preservation, review and production."
Sedona CanadaSM Commentary on Proportionality in
Electronic Disclosure and Discovery, Working Group 7 “Sedona
CanadaSM”. October 2010 Public Comment
Sedona Conference® Commentary on Proportionality
in Electronic Discovery, August 2010. Public Comment Version.
Is an E-Discovery Burden an Undue Burden? June 1, 2010. Jason
Krause writing in Law.com.
Can’t Always Get What You Want . . . But If You Focus on The Case and
Follow the Rules, You Can Get What You Need, March 2009,
published in Digitial Discovery and E-Evidence.
and Professionalism, The Advocates Journal, March
2009. The Honourable Warren K. Winkler, Chief Justice of Ontario.
article is adapted from a presentation made at the American College of
Trial Lawyers Annual Meeting in Toronto on September 26, 2008.
Smart E-Discovery Wins the Day. Leonard Deutchman. Nov 12,
2008. Law.com. "Two thoughtful jurists issued opinions in discovery
matters that took opposite tacks in different situations to achieve the
"Two-Tiered" Approach to E-Discovery: Has Rule 26(b)(2)(B) Fulfilled
its Promise? By: Thomas Y. Allman. Published in the Richmond
Journal of Law & Technology, Volume XIV, Issue 3, in
Spring 2008. This article seeks to answer these questions through the
prism of the reported decisions and the actual conduct of parties under
Warfare: The Cost of Electronic Discovery in Employment Litigation
By: Rodney A. Satterwhite and Matthew J. Quantrara. Published in the
Richmond Journal of Law & Technology, Volume XIV,
Issue 3, in Spring 2008. "The difficulty lies in balancing the need to
discover potentially relevant information with the risk of one party
having unfair leverage over the other."
Search for Balance in the Discovery of ESI Since December 1, 2006
By: Douglas L. Rogers. Published in the Richmond Journal of Law
& Technology, Volume XIV, Issue 3, in Spring 2008.
Nice discussion of marginal utility with a focus on proportionality.
A More Effective Tool.
Craig P. Dennis. September 29, 2005. "Proportionality refers to the
idea that the pursuit of a just determination on the merits should not
be indifferent to the speed and expense of obtaining that
Case Assessment: The Ticket to Reducing Costs & Increasing
Defensibility. June 16, 2010, by J. Mark Coulson and Gina M.
Day, published by Kroll Ontrack. Nice overview in presentation format.
Slides came from a webinar, but are complete enough for the message to
Legal Tech NY 2010: Early Case Assessment — how far left can
you go? February 9, 2010, published on The Posse List. Summary of the
several sessions on ECA at Legal Tech.
'Next Big Thing' in E-Discovery? April 14, 2009, Leonard
Deutchman. Law.com. "Depending upon your perspective, early case
assessment, a process through which reviewers try to define the
universe of potentially responsive electronically stored information as
quickly and, probably most importantly, cheaply as possible, is either
the "next big thing" or the "present big thing" in e-discovery."
Analytics in Plain English, April 9, 2009, Sharon D.
Nelson, Esq. The "plain English" version follows from the original
column by guest-author Rob Robinson of Orange Legal, which is
intelligible after the "plain English" is read. So - here's the
Considering Analytics? April 7, 2009, published on Sharon
The Lightning blog.
Offs, Demos & Kicking the Tires: A Practical Litigator’s Brief
Guide to Evaluating Early Case Assessment Software & Search
& Review Tools, Ronni Solomon and Jason R. Baron,
written for The Sedona Conference Institute held March 26-27, 2009 in
Philadelphia. Early case assessment technology “ … allows for a
thorough front-end look at the volume of ESI collected in response to
the request for production, instead of just the ESI that is filtered,
processed and uploaded to the review tool. Thus, by using this new
technology, the litigator can find the “significant documents” very
early on in the case instead of waiting until the end of the review
process after the reviewers have reviewed and “tagged” the significant
is Discovery Analytics? An In-depth Perspective on Analytical
Search Techniques and Their Application in the eDiscovery Workflow
By Nicholas Croce. January 28, 2009. Published by Inference Data.
"Within the last few years, the term “analytics” has become a buzzword
in the eDiscovery market, and for good reason. With burgeoning data
growth and the need to vastly increase efficiency in the discovery
process, both the courts and the vendor community have addressed the
challenge with new tools. The terms “analysis” and “analytics” are now
being used interchangeably to describe functions ranging from base
reporting and review metrics to sophisticated search software and
advanced data mining applications."
Risk, Cost, with Early Case Assessment, by Jeff
Beard, publishing in Inside Counsel August 14, 2008. Understanding the
underlying evidence and merits of a matter is crucial given the
compressed timelines and other requirements of the new federal rules.
An early case assessment assists corporate and outside counsel by
providing them with clearer identification and analysis of
electronically stored information (ESI) either before or at the onset
of litigation or other requests and investigations.
Discovery Plans and Checklists for Preparing a Discovery Plan,
Ontario E-Discovery Implementation Committee, April 13, 2010. Draft
versions for comment.
An Effective Tool for Resolving E-Discovery Disputes, The
Counselor, Spring 2009. Allison O. Skinner. "Mediation is no longer
just for settlement purposes. This self-determination process
can be enormously helpful in handling the potentially uncontrollable,
unlimited nature of ESI discovery. Mediating e-discovery allows for
creative, mutual solutions among the parties that most likely will save
the parties time and money in the long run."
Together the eDiscovery Plan: A Plaintiff's Guide to Meet and Confer.
Craig Ball. 2008. Although this is written to help plaintiffs with
questions they should ask defendants, the questions are equally good
for helping counsel plan out the time, effort and cost required to
preserve, collect, process, review and produce ESI.
E-Discovery Update - by Fios Inc.: Developing a Case-Specific E-Discovery Plan,
Conrad J. Jacoby, October 15, 2006. Good things to think about when
developing a discovery plan.
Management and Cost/Burden Estimation
Project Management Guide, last retrieved June 10, 2011.
Discovery Pricing Estimator, from Orange Legal Technologies.
Last accessed June 13, 2011. For a given input volume of data, the tool
estimates the volume reductions through processing and the application
of analytics, and calculates the processing a review costs.
Realities And Strategies Of Fixed Fees - Part II: Strategies.
May 2, 2011, by Ashish S. Prasad, writing in Metropolitan Corporate
Counsel. The author outlines "an approach to weighing the pros and cons
of fixed fees and hourly billing in light of the circumstances of the
case, the client, and the law firm. The touchstone for any fee
arrangement should be to provide legal services in a way that generates
the most value and satisfaction for the client."
Realities And Strategies Of Fixed Fees - Part I: Myths And Realities.
April 3, 2011, by Ashish S. Prasad, writing in Metropolitan Corporate
Counsel. "Over the past few years, the recession has created a buyer's
market in legal services, empowering clients to "push back on the
billing scheme" and demand more value for their dollar. ... (the author
discusses) some widespread myths about fixed fees and hourly
billing, and show that the relative merits of these fee arrangements
are not as clear as they seem."
Project Management Skills to E-Discovery. April 12, 2011. Pat
McCulloch, writing in The Legal Intelligencer on Law.com. Good project
management can help detect or avoid deliberate or inadvertent poor
e-discovery practices. Project management techniques and expertise can
help minimize costly mistakes and the wrath of the court. With the
right people and processes involved, law firms and legal departments
can develop e-discovery plans that are as cost-effective and
predictable as possible.
and Managing Costs in E-Discovery, April
6, 2011. Bob Ambrogi. "What does electronic discovery really cost? It
is a question that is frequently debated but never resolved. Now, a
just-published law review article (see
next) attempts to do just that, analyzing “all the moving
parts” involved in e-discovery and dissecting the actual costs at each
step. The article also examines the tools that can be used to reduce
costs and expedite e-discovery and it discusses ethical issues that may
bear on e-discovery costs."
for the Costs of Electronic Discovery, 12:1 (Winter 2011),
Minnesota Journal of Law, Science & Technology. David Degnan.
Précised by Bob Ambrogi in Understanding
and Managing Costs in E-Discovery.
- Service Providers Tools And Techniques For Effective Case Management,
February 28, 2011, by Ashish S. Prasad, writing in Metropolitan
Corporate Counsel. The author reviews the recent studies of case
management and provides advice on how to go beyond the conventional
tools of case management in order to reduce cost, delay, and litigation
risk. Ashish was Executive Editor of the 2004 editions of The Sedona
White Paper - E-Discovery Research Roundtable: Buyers’ Perspectives on
Challenges and Solutions, December 2010, Jeffery
Fehrman and Eric Feistel, with Integreon. "Containing the cost of
discovery is the greatest challenge for most organizations, with the
cost and volume of data for discovery being clearly linked. Reducing
the volume of data is the best way to reduce costs, facilitate greater
cost predictability, and subsequently to expedite the process for
assessing data. Approaches for reducing volumes identified by
participants include targeted collections, early case assessment, data
analytics, and post-review archiving."
Marean's eDiscovery Project Management Template.
Project Management: The Devil is in the Details. November 20,
2009. Julian Ackert, writing in Georgetown Law School's eDiscovery Law
Reducing chaos in electronic discovery projects, 2009, by FIOS.
Litigation support professionals who manage electronic discovery
projects experience high stakeholder expectations, complex
requirements, difficult issue resolution and tight timelines. The
process can quickly deteriorate to a state of chaos if not properly
managed. Effective use of project management knowledge, skills and
tools can lessen the chaos and reduce unnecessary project costs.
Technology To Estimate, Control And Manage Litigation Document Review
Budgets. Conrad J. Jacoby. September 1, 2009. Metropolitan
Counsel. Calculating - and staying within - a realistic budget for a
litigation or regulatory document review can sometimes require psychic
powers of prediction.
Electronic Discovery Calculators: Page
2008 E-Discovery Budget. Discovery
Project Template; Precision
Discovery Electronic Discovery Calculator; Lexbe
Pages per Megabyte/Gigabyte Calculator for e-Discovery
on the Cheap. By Frederick Chockley III,
Elizabeth Scully, and Rebecca Barnes. Legal Times. April 28, 2009. With
the economy down, the new mantra for clients is “more for less.” As
litigation budgets shrink, litigation teams are forced to deal with the
enormous volume of documents produced in e-discovery without the
benefit of large teams of paralegals or expensive outside vendors.
the Power of EDD Planning. By Jeffrey A. Andrews
Texas Lawyer April 10, 2009. Discovery, while always time- and
cost-intensive, can dominate litigation because of the enormous volume
of potentially relevant information that lawyers consider, review and
produce. In this landscape, lawyers must give the discovery-planning
conference a central, strategic role in formulating a case plan.
10 Steps to Manage E-Discovery Projects, Steven C. Bennett
and Marla S.K. Bergman, New York Law Journal, published March 16, 2009
in Law Technology News. This article outlines 10 key steps in a typical
e-discovery project, suggesting ways that lawyers can help ensure that
such projects proceed successfully.
911: Reducing Enterprise Electronic Discovery Costs in a
Recession, February 20, 2009, published on
Clearwell’s e-discovery 2.0 blog. Works through a typical
case involving 400GB, 8 custodians, 8 hard-drives and NO backup tapes.
Cost of review still swamps all other costs.
E-Discovery Too Expensive? Martin Felsky's February 9, 2009
column in Slaw. "Recently I’ve had discussions with several lawyers at
big firms and at litigation boutiques, all of whom have a clear
understanding of their obligations and their clients’ obligations to
preserve, review and produce electronic documents, but all of whom seem
to be stymied by the apparently uncontrollable, even irrational costs
of ediscovery." Read on.
Savings by Predicting and Controlling Total Discovery Cost,
Chris Egan and Glen Homer from Integreon, December 2008. Published in
The Metropolitan Corporate Counsel. Total Discovery Cost (TDC) includes
electronic data processing, hosting and document review services.
Choices of processing workflow and hosting applications significantly
affect TDC. Case teams must weigh these choices carefully early in the
Twice, Cut Once. Peter Vakof. LExpert. September 2008.
Estimating the Cost Burden of E-Discovery - A New and Better Method.
James M. Wright, P.E. FTI Consulting Inc. 2008. When making an NRA (not
reasonably accessible) claim “due to undue burden or cost” the party
doing so is faced with a significant challenge. Unless there is a
substantial business disruption burden claim available [e.g. shutting
down I.T. systems, confiscating cell phones, etc.] the only remaining
burden claim available is disproportionate cost. This situation is not
uncommon in estimating. For example, when bidding for a construction
project, it’s important for bidders to be able to determine how much
variability there could be in the primary factors they use in
estimating, e.g. labor and material costs, productivity, weather,
disruptions, etc. This white paper describes an approach using
A Project Management Approach to eDiscovery, May 2008, Bryan
Melchionda, Director of Client Services,
This paper shows how corporate clients, law firms and
eDiscovery vendors can use Project Management principles to streamline
the eDiscovery process and minimize the potential for costly
coordination issues and missed deadlines.
Roles and Responsibilities: RACI Chart. Last updated March
28, 2008. Value Based Management.net. The RACI model is a relatively
straightforward tool that can be used for identifying roles and
responsibilities for any new process as well as for managing projects.
Opportunities to Manage Risk and Control Cost, a brochure on
the Fulbright & Jaworski LLP website dated March 19, 2008.
Document review traditionally is the most expensive aspect of
electronic discovery. The list of considerations below is intended to
serve as a quick reference for planning and management of a document
review, which are keys to controlling the high cost of document review.
avoids after-the-fact panic. A 2007 article in Law Times.
“Help your clients to see the necessity of formulating and then
implementing a formal strategy for electronic document retention that
will allow them to access relevant information should they be sued.
This includes the insidious e-mail correspondence, which has multiplied
the number of potential e-discovery documents manifold.”
Defuse Fear and Disarm EDD Vendors Pt. I, published in Law
Technology News on October 2, 2007. Monica Bay. "There's no
question about it, electronic data discovery is generating huge
revenues for vendors and gigantic headaches for corporations and their
lawyers. There's outright fear and confusion as everybody struggles to
understand -- and corral -- this critical litigation technology." This
article discusses litigation readiness, project management, EDD
skeptics and turf wars.
Part II was published on October 10, 2007.
Applying Project Management Techniques to Litigation Discovery. By
Conrad Jacoby. April 15, 2006. Published by LLRX. Conrad J. Jacoby,
Esq. is a member of The Sedona Conference® and a contributing columnist
for Fios, Inc. His work focuses on the areas of information management,
e-discovery, and litigation support.
Collections in E-Discovery – Just too Risky for Prime Time,
April 26, 2011, on the eDiscovery 2.0 blog. "While there was no
particular straw that broke the camel’s back, the trend in the case law
now seems to be moving inextricably in one direction – i.e., that self
(or manual) collection is no longer safe enough for average
Tapes - Hidden Trove for eDiscovery? November 2010
- January 2011 edition of Litigation Support Today. Improvements in
discovery technology have made tape content accessible, where as before
the tape restoration process was iincredibly onerous, it is now faster
and easier. Article sponsored by Index Engines.
Chain of Custody in E-Discovery, an Applied Discovery fact
sheet available on the ACC website.
Evidence From the Sea of Text Messages, October 6, 2010. Alan
M. Winchester and Russell E. Maines. New York Law Review, published in
Law.Com. Collection and preservation of text messages.
Collections of ESI in Electronic Discovery Come under Fire.
May 17, 2010. Dean Gonsowski. "The question then becomes, is the
problem here really about the “manual” collection efforts by the
custodians or more simply the fact that they aren’t supervised with the
requisite degree of care?"
'Manual' ESI Collections. April 9, 2010. Mark S. Sidoti,
Wendy R. Steinand and Verne A. Pedro. What happens when the requesting
party challenges the results of a production based on manual collection
methods or otherwise objects to the propriety of those methods?
Lowdown on Backups - Sometimes, tape backups can save the day.
March 1, 2010. Craig Ball writing in Law Technology News.
Clear of the Perils of Self-Collection. April 16, 2008.
By Leonard Deutchman, writing in Pennsylvania Law Weekly. Cautions and
best practices if the client insists on self-collection. See section on
Electronic Discovery, below.
Maintaining the Chain of Custody in Civil Litigation.
Published on Law.com March 2008. Chain of custody is a familiar concept
in criminal law, but until recent years it was foreign to civil
litigators. Historically, evidentiary chain of custody was rarely an
issue in civil litigation. With the advent of the digital age, it has
become a major issue because the actual nature of evidence in civil
litigation has undergone a radical transformation — from tangible paper
to electronic data.
E-Discovery Chain of Custody.
Christy Burke. October 23, 2007. Though a simple concept, chain of
custody can be challenging to uphold for electronic data. Potential
electronic evidence must be accounted for from the moment of discovery
until admittance at trial to prove its authenticity. Documenting the
chain of custody of potential, relevant evidence to disprove tampering
or alteration is critical to admissibility at trial.
Practices for Seizing Electronic Evidence. Third edition.
U.S. Department of Homeland Security.
to ask IT or Records Management
(either of client or opponent), from Unlocking E-Evidence: Know How to
Discover Computerized Information. August 13, 2002, from Los Angeles
Daily Journal, an online resource for the California legal community.
Rules Change, 2010 Cases Set Preservation Standard, May 3,
2011, Brad Harris and Ron Hedges, writing in National Law Review,
retrieved from Law.Com. "A raft of opinions in the U.S. courts
throughout 2010 and beyond highlight the uncertainty and growing risk
associated with the lack of uniformity around preservation practices in
the Information Age." The authors look at the events that have
catalyzed the discussion and how the conversation is shaping up.
to Preserve Cyber Investigation Evidence | Screencast Tool.
January 26, 2011. Benjamin Wright, writing in Computer
Forensics and Incidents Response blog. Lots of discussion
follows the blog entry as comments - good exploration of the proposed
Oft-Overlooked Price Driver, November 15, 2010. Michael B. de
Leeuw and Eric A. Hirsch writing in the New York Law Journal,
published on Law.Com."Preservation costs are being driven in part by
the intense uncertainty that surrounds the scope of the duty to
preserve in both federal and state courts ... Indeed, it is not
uncommon for litigants to receive letters demanding the preservation of
all responsive data and containing laundry lists of every conceivable
method of storing ESI without any attempt to tailor the preservation
demand to the facts and circumstances of the particular case or party."
Discusses possibility of cost shifting.
Proves to Be Primer on E-Discovery Enforcement. October 12,
2010. Leonard Deutchman. The Legal Intelligencer (in Law.Com).
Magistrate Judge Paul Grimm's lengthy opinion in Victor Stanley Inc. v. Creative
Pipe Inc., filed Sept. 9, 2010, is worth the
read if only for its review and distillation of the case law regarding
spoliation and remedies.
Sedona Conference® Commentary on Legal Holds: The Trigger & The
Process, August 2010. Updated from original published in
2007. The duty to preserve information includes an
obligation to identify, locate, and maintain, information that is
relevant to specific, predictable, and identifiable litigation. When
preservation of electronically stored information3 (“ESI”) is required,
the duty to preserve supersedes records management policies that would
otherwise result in the destruction of ESI. A “legal hold” program
defines the processes by which information is identified, preserved,
and maintained when it has been determined that a duty to preserve has
the Rules of Civil Procedure for the 21st Century - The Need for Clear,
Concise, and Meaningful Amendments to Key Rules of Civil Procedure.
Submitted to the 2010 Conference on Civil Litigation, Duke Law School
May 10-11 2010. Proposes rule changes to deal more effectively with
preservation, especially in asymmetric litigation.
Last Words on E-Discovery? April 28, 2010. Leonard
Deutchman. Law Technology News. Good analysis of the Pension Committee
Value to E-Discovery's Unknown, April 14, 2010. Leonard
Deutchman. Law Technology News. "For U.S. District Judge for the
Southern District of New York Shira A. Scheindlin, who authored the
Jan. 15 decision in Pension
Committee of the University of Montreal Pension Plan v. Bank of America
Securities, and U.S. District Judge for the Southern District
of Texas Lee H. Rosenthal, who authored the Feb. 19 opinion in Rimkus Consulting Group, Inc. v.
Cammarata et al., the question was how to value
discovery that may never have existed, i.e., data that should have been
preserved to determine whether it needed to be produced as e-discovery
but, due to the actions of the producing parties, was destroyed."
Do's and Don'ts of 'Pension Committee'. Martina E. Vandenberg
and Brian J. Fischer. February 2, 2010. Law.Com. The court provides an
analytical framework for litigators to assess their e-discovery
performance and judges to calibrate sanctions. Boiled down to its core,
the 85-page opinion suggests a laundry list of do's and don'ts for
litigators handling pre-trial discovery.
Sedona Conference® Commentary on Preservation,
Management and Identification of Sources of Information that are Not
Reasonably Accessible, July 2008. A Project of The Sedona
Conference® Working Group on Electronic Document
Retention & Production (WG1). The central dilemma of
preservation planning in the absence of the opportunity to discuss
discovery requests or reach prior agreement among the parties is
predicting exactly which sources of information may actually be
discoverable in a given case. No bright-lines exist. The primary duty
is to make reasonable assessments in good faith.
Canadian Beware the
Dangers of Metadata, by Dan Pinnington, 2004. Published by
LawPRO magazine and still one of the most popular documents on the
LawPRO website. It was downloaded over 4,000 times in 2008. Dan
Pinnington is Director of practicePRO.
Metadata: Its Role in E-Discovery and the Future of Records Managers,
ARMA, Sep-Oct 2009. Aguilar v. Immigration and
Customs Enforcement Div. of U.S. Dept. of Homeland Sec.
2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008). The
need to produce metadata for e-discovery, the emergence of
international best practices regarding metadata management, and the
development of metadata repositories all suggest that records managers
need to prepare themselves for a new role.
with Confidence: How to Safely Publish - Sanitized Reports Converted
From Word to PDF. Published by the (U.S.) National Security
Agency on December 13, 2005. There are a number of pitfalls for the
person attempting to sanitize a Word document for release. This paper
describes the issue, and gives a step-by-step description of how to do
it with confidence that inappropriate material will not be released.
metadata in WordPerfect®12 documents,
from the Corel website.
WordPerfect Files Without Metadata, WordPerfect Office
Tutorials on Corel website.
Find and remove metadata (hidden information) in your documents,
from Microsoft Office On-line.
Schneier on Security: Metadata in MS Office. Published
November 14, 2005 on Bruce Schneier's weblog. Microsoft Office tools
are used to author documents, not to publish them. Schneier recommends
converting documents to PDF. There is an interesting string of comments
attached to the bottom with other useful tips.
Anton Piller Order. Ontario Superior Court of Justice
Model E-Discovery Precedents,
prepared by the Ontario E-Discovery Implementation Committee. Drafts originally published in June 2007 and
continually updated with new materials.
Forms from Discovery Resources, FIOS. Includes "receipt of
media form", "desktop collection information form", "server information
form", and a "key personnel list".
harvesting and processing
Processing Guide. Last accessed June 10, 2011.
- Processing Stages - EDRM. Last accessed June 10, 2011.
Common data culling techniques.
Really Works - Reducing Document Review. June 2, 2010. From
Avansic Forensics website. “Known File Filtering” is often
referred to as “de-NISTing” since it uses a list of file hashes created
by the National Institute of Standards and Technology (NIST) to
identify and remove files from a document set that are known to belong
to certain software programs.
Deduplication: Custodian vs. Case.
August 27, 2009. Alex Schiller writing in Law Technology News.Advantages and pitfalls of each type of deduplication.
E-Mail Message Analysis in Litigation Document Reviews,
a paper by Equivio describing the value of grouping near-duplicates,
capturing email threads.
A time to reap, a time to cull, published in the June 12,
2008 edition of Inside Counsel. Clifford F. Schnier. Gathering
is no easy task, but the technology exists to make the process a little
easier, and a little less costly
v2.3.5 Performance Benchmark, January 2008. Published
by Equivio. "This document describes the results of performance
benchmark tests performed on the Equivio Version 2.3.5 software in
January 2008. The tests were carried out in Equivio’s R&D
laboratories. The tests were conducted using standard hardware and
software equipment to ensure replicability in customer production
Near-Duplicates: Applying Near-Duplicate Technology in Litigation
Matters. Published by Equivio. "Near-duplicate identification
technology, whether deployed on a stand-alone basis to a discovery
document collection or in conjunction with other analytical models such
as context or concept analysis, has the potential to greatly increase
the efficiency of the litigation document review process and
significantly reduce discovery costs."
Search Guide, evergreen.
in the Age of Exabytes: Some Further Thoughts on 'Information
Inflation' and Current Issues in E-Discovery Search, Jason R. Baron,
XVII RICH. J.L. & TECH. 9 (2011), published in the Spring 2011
edition of the Journal of Law and Technology. Discussion of
the current state of the law, the move towards co-operation and
iterative discovery, and the introduction of new techniques such as
Method Validation or eDiscovery Standards? What is Really Needed for
eDiscovery Search and Retrieval to be Successful? March 27,
2011, by Sonya Sigler. Nice discussion of search processes and search
methods and how they ought to be applied.
Computer Search in EDD, December 20, 2010, by Jason Krause,
Law Technology News. "For several years now, the Text Retrieval
Conference Legal Track has tested different types of computer searches
to create industry best practices for searching electronic records in
litigation. Starting last year, the project added a new investigation
into the role of human researchers in improving the search results from
computers, called the Interactive Task."
Makes Search So Tough? December 16, 2010. James Watson
writing in AIIM. Enterprise search, information organization and user
requirements that depend on the role they play.
searches not good enough for e-discovery, experts say.
December 6, 2010. Computerworld. Cindy Waxer. Starts with a quotation
from Ontario Superior Court of Justice on the problem faced by the
defence in reviewing the millions of Nortel documents it received from
the RCMP in R. v. Dunn,
2009 CanLII 75397 (ON S.C.).
- Did You Know? February 11, 2010. Jason R. Baron and Ralph
C. Losey collaborated to create a "Did You Know?" type of music video
on electronic discovery law. This video presents some of the amazing
facts behind the information explosion and rapid advances in
technology. It also explains some of the negative impacts this is
having on the law. Lawyers around the world are unable to keep up with
these changes. The biggest problem now is how to find relevant evidence
when our writings are all just bits and bytes hidden in unimaginably
large haystacks of irrelevant information The video ends with their
speculations about the near and far futures of the law and
a More Effective Keyword Search, By Craig Ball, Law
Technology News, June 24, 2009. Following comments from Judges Facciola
and Peck on the current state of search practiced by lawyers, Craig
Ball offers a step-by-step guide. The July edition includes more steps.
The full article is available at
Surefire Steps to a Splendid Search, on www.craigball.com.
Note in particular comments about nested emails, attachments,
encryption and other exceptions and their impact on search
2008 Stresses Human Element in EDD, Jason Krause, May 1,
2009, published on Law.com. Over the years, TREC Legal Track has become
a proving ground to test advanced search technology as applied to
e-discovery tasks. In 2008, it also explored a different aspect of the
e-discovery problem: the role of human beings.
Search of the Perfect Search, ABA Journal, April 2009.
Jason Krause. The Text
Retrieval Conference Legal Track has been using different
types of computer searches to wade through huge piles of digital
information, hoping to get closer to a complete picture of what is
issue-important in a computer’s data stores. The good news: The TREC
Legal Track team believes it is close to finding a protocol that can
work. The bad: The project also found disturbing problems with the way
lawyers work today. An interview with TREC co-ordinators Jason Baron
and Doug Oard.
the Limitations of Keyword Search, Conrad J.
Jacoby, Esq. Published on the Equivio site in early 2009. "Keyword
search possesses the seemingly contradictory weaknesses of finding too
few documents (under-inclusion) and finding too many documents
(over-inclusion). Of late, these limitations have led to a small but
growing judicial voice questioning whether keyword search alone meets
the legal standards for reasonably and defensibly looking for
potentially relevant documents and information."
Needles, Haystacks and Smoking Guns - Searching for Legal Evidence in
the Modern Email Archive, a presentation by Jason R. Baron in
February 2009 at the University of British Columbia International
Symposium "Our Professional Identities in a World Gone Digital".
Lessons Learned From 'Creative Pipe'. By Joshua Horn and Beth
L. Domenick. Published August 12, 2008 in The Corporate Counsellor.
Lessons learned from Victor Stanley, Inc. v. Creative Pipe,
Inc., et al., 2008 WL 2221841 (D. Md. 2008). "The court in Victor
immediately identified numerous problems with the defendants'
explanation of their ESI search protocol, as well as the search itself.
First, the court found that the defendants were "regrettably vague" in
their description of the 70 keywords that they used for the
text-searchable ESI privilege review; specifically, the defendants
failed to inform the court how the search terms were developed, how
they conducted the search itself and what quality controls, if any,
were used to assess the reliability and accuracy of the search. Second,
the court questioned whether the defendants and the two attorneys who
created the keyword search were qualified to create a search and
information retrieval strategy designed to yield a reliable privilege
review. Finally, the court criticized the defendants for failing to
assert that they sampled the text-searchable ESI files to determine
whether the electronic keyword search was reliably identifying
A 'Comparative Advantage' to Cut E-Discovery Costs. Thomas E.
Stevens and Wayne C. Matus. Published September 4, 2008 in The National
Law Journal. A perfect storm is brewing involving exponential growth in
electronic documents and increasing fees for review of documents. This
paper presents the concept of "comparative advantage": This approach --
relatively new to the legal industry but long used in most others --
allows each participant to do what it does well by relying on a
partnership among client, law firm and service provider.
In Search of Better E-Discovery Methods. By H. Christopher
Boehning and Daniel J. Toal. April 23, 2008. New York Law Journal. As
the burdens of e-discovery continue to mount, the search for a
technological solution has only intensified. The holy grail here is a
search methodology that will enable litigants to identify potentially
relevant electronic documents reliably and efficiently.
Sedona Conference® Best Practices Commentary on Search &
Retrieval Methods (August, 2007) The emergence of new
discovery strategies, best practices and processes, as well as new
search and retrieval technologies, are transforming the way lawyers
litigate and, collectively, offer real promise that huge volumes of
information can be reviewed faster, more accurately, and more
affordably than ever before.
Search Problem Posed by Large Heterogeneous Data Sets in Litigation:
Possible Future Approaches to Research Jason R. Baron and
Paul Thompson. Published in 2007 as part of the Proceedings of the 11th
international conference on Artificial intelligence and law.
the Worlds of Paper and Electronic Discovery. How can outside
counsel make sure they are comprehensive in their search for
information while minimizing costs? By Linda G. Sharp, Esq., MBA and
Michele C.S. Lange, Esq. Published on Kroll Ontrack website.
the Rough: Finding Gems in a Well-Executed Document Review,
May 2, 2011. Cathleen Peterson, Benita Sumey and Jennifer Fiorentino of
Predictive Coding Demystified,
April 28, 2011, Wortzman Nickle Blog.
"Predictive coding has received a lot of attention lately as the next
great magical wand in the e-discovery bag of tricks. However, as with
any new technology, there are a number of different implementations and
marketing claims that are confusing the whole picture of how this
system can help make the e-discovery process more efficient and
ultimately reduce costs."
Technology 'De-Commoditize' Document Review? April 28, 2011.
Robert W. Trenchard and Steven Berrent. New York Law Journal in
its merits in paper-driven discovery, manual review is ill-suited to
the volume of information generated in electronic discovery. When large
teams of reviewers sort through the volume for relevance and privilege,
the results can be uneven. Article discusses non-iterative techniques
and the technological solutions available to improve the review.
Review in E-Discovery Can Be More Effective and More Efficient Than
Exhaustive Manual Review, XVII RICH. J.L. & TECH. 11
(2011), Maura R. Grossman & Gordon V. Cormack. "E-discovery
processes that use automated tools to prioritize and select documents
for review are typically regarded as potential cost-savers – but
inferior alternatives – to exhaustive manual review, in which a cadre
of reviewers assesses every document for responsiveness to a production
request, and for privilege. This Article offers evidence that such
technology-assisted processes, while indeed more efficient, can also
yield results superior to those of exhaustive manual review, as
measured by recall and precision."
Software: A Better Approach, Conor R. Crowley, December 2010
edition of Metropolitan Counsel. The cost of commercial litigation is
ballooning as a result of dramatic increases in volumes of
electronically stored information (ESI). Human review of all documents
collected in a case is not feasible budgetwise or time-wise. What
strategies are available to address this problem?
and Challenging Privilege Claims in Modern Litigation: The
November 2009, Hon. John Facciola and Jonathan Redgrave. Published in
Volume 4, Issue
1 of The Federal Courts Law Review. "The volume of information produced
by electronic discovery has made the process of reviewing that
information, to ascertain whether any of it is privileged from
disclosure, so expensive that the result of the lawsuit may be a
function of who can afford it. ... The authors submit that the majority
of cases should reject the traditional document-by-document privilege
log in favor of a new approach that is premised on counsel’s
cooperation supervised by early, careful, and rigorous judicial
Legal Costs - Legal Service Providers Prioritization: Saving
E-Discovery Costs While Speeding Review. November 2, 2009.
The Metropolitan Corporate Counsel. The Editor interviews Greg Wildisen
, International Managing Director, Epiq Systems, and Vince Neicho ,
Litigation Support Manager, Allen & Overy.
Categorization in Legal Electronic Discovery: Computer Classification
vs. Manual Review. October 2009. The Electronic Discovery
Institute. Published in the Journal of the American Society for
Information Science and Technology, 61(1):70–80, 2010.This study
compared an original categorization, obtained as part of a response to
a Department of Justice Request and produced by having one or more of
225 attorneys review each document with automated categorization
systems provided by two legal service providers.The goal was to
determine whether the automated systems could categorize documents at
least as well as human reviewers could, thereby saving time and
Section of the EDRM.
Review 2.0: Leverage Technology For Faster And More Accurate
Review. By Craig Carpenter (Recommind, Inc.). February, 2008
edition of The Metropolitan Corporate Counsel. In a typical document
review scenario, lawyers (and everyone else involved) are forced to
wade through countless irrelevant, unimportant or simply off-base
documents in search of the ones they do care
about. As with many other things, the solution to this incredibly
costly problem lies in automation.
to look for in selecting vendors for electronic discovery
Wisely. October 1, 2010. Kenneth Jones. Law Technology News.
Bad decisions about vendors can be costly.
Right Fit. October 1, 2009. John Reilly & Stephen
Schutter. "Information on e-discovery vendor services and products is
ubiquitous, but actually choosing and managing vendors during a complex
discovery project can be a challenge for even the most sophisticated
firm or company."
Selecting an E-Discovery Service Provider in an Uncertain Market,
by Laura Webster, Solution Design Architect, Fios, Inc. February 11,
2009. In today's economy, corporations and law firms can incur
significant risk if they rely on e-discovery vendors that are not
financially stable. Loss of data access due to provider bankruptcy or
system shutdowns can be fatal to a case.
E-Discovery Service Provider Due Diligence Checklist is also
the Right Five Questions for EDD Vendors, October 6, 2008, by
Charles Kellner. Over twenty leaders in eDiscovery offer their version
of the 5 key questions to ask vendors.
Pulling the Right Levers for Outsourcing. March 17, 2008. W.
Carter Santos, writing for Law.com. The customer can negotiate
contractual levers into the outsourcing agreement to mitigate service
performance and other problems caused by vendor employees.
the Vendor Proposal Process: Best Practices for the Selection of
Electronic Discovery Vendors June 2007. A Project of The
Sedona Conference® Working Group on Electronic Document Retention and
Production (WG1). The goal of the RFP+ Group and this paper is to
outline an approach to the selection of an electronic discovery vendor
that allows the “user” to compare apples to apples, to the extent
feasible, and which makes it easier for all parties to the process to
better understand the nature, cost and impact of what is being
discovery - the process, common terms, and what to look for from
e-discovery providers, from Litigation
Information Management, Portland, Oregon.
Your E-Discovery Vendor: The Lawyer’s Perspective, July 2004,
published in Law Practice Today, the online newsletter of the ABA Law
Practice Management Section. Cost-effective managing of the harvesting,
review and production of such information requires careful selection of
your E-Discovery vendors.
Small Firm Electronic Discovery
for Legal Professionals - blog entries related to EDD. The
Acrolaw Blog is a resource for lawyers, law firms, paralegals, legal IT
pros and anyone interested in the use of Acrobat in the legal
community. Rick Borstein– the author of the blog– is the Business
Development Manager for Acrobat in the Legal Market for Adobe Systems.
To Edna and
Beyond: The Ernie Challenge. What to do about the “tweener”
cases, those that fit in between the small cases covered by the Edna
Challenge and the mega-cases suitable for the larger name brand
products that dominate the EDiscovery world.
Big Squeeze: Trial tech options for small firms with small cases and
small budgets. July 01, 2010. Ross Kodner writing in Law
Technology News. Tools for transcript management, discovery management,
case strategy and presentation.
Teeny-Weeny E-Discovery, February 22nd, 2010, Jason Krause
writing in Law.Com.As EDD increasingly becomes an issue in smaller
cases for smaller law firms, small and solo lawyers are learning some
hard lessons about electronic evidence in litigation.
for the Rest of Us: What You Need to Know Now! Sharon Nelson,
ABA TechShow, April 2009.
for Everybody: The EDna Challenge. Craig Ball. December
Edna challenge involves an old school chum who runs a small law firm.
She wants to conduct an in-house review of ESI in a fairly small case.
Craig outlines the facts, the technology available and the budget and
then asks “How Should Edna proceed?”
Improving Smaller Companies' Litigation Readiness with Little or No
Budget, November 19, 2008. Jeff Beard. Published in
Inside Counsel. When you read about litigation readiness, typically
larger companies and their legal departments get all the attention. The
truth is that smaller companies face similar issues but may lack the
resources to address them as fully as they’d like.
Clear of the Perils of Self-Collection, By Leonard
Deutchman, Pennsylvania Law Weekly, April 16, 2008. For clients who
insist on self-collection of electronically stored information, the
right set of questions may dissuade them
Tips Leading to Efficient and Effective eDiscovery for the Small
Law Firm. By Ervin A. Gonzalez and Patrick S. Montoya. April
2007. In this article, the authors propose ten fundamental cost cutting
and time saving tips to assist small plaintiff firms in dealing with
the new (US) electronic discovery rules.
Dangers of Do-It-Yourself eDiscovery.
Slides from a RenewData webinar originally aired July 2, 2008.
E-Discovery Costs for Small Biz. By Richard B. Friedman The
Corporate Counselor March 7, 2008. In the days of only paper documents,
smaller companies could afford to wait until they became involved in a
lawsuit to worry about pretrial discovery, but today's reliance on
digital information makes that a risky and unnecessarily expensive
strategy. By taking a handful of cost-effective steps, companies can
save both time and money in litigation costs in the long run.
Dangers of Do-It-Yourself Computer Forensics. November 2007.
Law Practice Today. Erik Shirk. As Do-It-Yourself or “DIY” becomes a
more common practice at law firms, it is becoming more important to
evaluate the risks associated with doing certain things yourself. Eric
Shirk examines the dangers of using DIY for computer forensics and
suggests alternatives that are safer for your firm.
DIY Forensics. Craig Ball. Law.com. Legal Technology. July
and disclosure of electronic information
Quest to Better Utilize Native-Format Production, April 22,
2011. Michael Collyard and Vivian Enck. Right now, the tides of
e-discovery favor production of electronically stored information in
native form -- i.e., within the original application in which it was
created. A more thorough examination of the issues associated with
native-format production, along with a more nuanced approach to ESI
production overall, show that the best format for e-discovery really
depends on the specific circumstances of each case.
Guide from The Electronic Discovery Reference Model.
Extensive discussion of production of electronic information.
a Clear Social Media Policy Is a Company's Best Defense,
April 27, 2011, Patrick M. Fahey and Susan S. Murphy. Employees are
engaging in social networking both at home and at work, yet
the potential risks of online conduct can be difficult to
anticipate. One effective solution is to have a clear social media
policy in place.
Tips for a Clear and Understandable Electronic Systems Policy in the
Workplace, April 5, 2010, by Kristin Sowtowski, published in
the New Jersey Law Journal. Dealing with the expectation of privacy and
confidentiality in e-mails exchanged with counsel using a
password-protected web-based e-mail account accessed using a
Information Retention and Disposition Management: When Faced with
Litigation Events, Readiness Is Your Best Defense, March
2010, Vivan Tero. "An effective program requires close coordination
among key stakeholders — corporate counsel, compliance officers, and IT
managers. Having formalized policies isn't enough. Corporate
stakeholders need to work closely together to ensure that technical
processes are in place to document the consistent enforcement of these
Quest for eDiscovery: Creating the Data Map,
November/December 2009 edition of AIIM's Infonomics magazine, by Ganesh
Vednere. "A key aspect of ediscovery is the creation of a data map to
determine precisely what information is available within an
organization and where it resides. This is a process that should begin
long before a company ever finds itself in court."
Mapping: How to Make It Work. August 11, 2009. Joan
Goodchild, writing in CSO Online. A data map can make e-discovery and
regulatory compliance a lot simpler, but the difficulties of getting
there are well-known. Bruce Phillips offers tips from Fidelity National
Financial's data mapping project.
Readiness Through Information Governance, October 2008. AIIM
publication. Peter Pepiton II. Companies can increase their litigation
preparedness and reduce risk with an information governance solution
that integrates the management of all content — whether in email
systems or on paper, disparate content systems, network servers,
laptops, voice recordings or elsewhere.
E-Discovery Keeps an Eye on the Job. A. Michael Weber. April
25, 2008. New York Law Journal. "For better or worse, employment
disputes are likely to remain the vanguard for the developing
electronic discovery case law. As we suggest, however, the appropriate
preservation and production of electronic evidence offers as many
opportunities for employers as potential pitfalls."
E-Discovery Costs for Small Biz March 7, 2008.
Richard B. Friedman in The Corporate Counsellor. While technology has
given even small companies access to global communications
capabilities, it also has laden them with new legal obligations. At the
heart of the Federal Rules for e-discovery are the obligations to be
able to locate, preserve and produce in a timely manner digital
information that is relevant to the subject matter of a lawsuit. A
common sense approach to managing digital information combined with the
establishment of proper policies and procedures can go a very long way
to meeting companies' e-discovery obligations.
There to Hold On To? An Enlightened Approach to Data Preservation in
the Era of the Legal Hold, February 14, 2011, by Brad Harris
and Craig Ball. The authors propose several organizing principles that
can serve as a guide to those preparing and implementing legal holds.
Sedona Conference® Commentary on Legal Holds: The Trigger & The
Process, August 2010. Updated from original published in 2007.
Compare and Use Legal Hold Software, April 5, 2010, by Mary
Brandel on the CSO Online Security and Risk. Understanding what is
offered by Legal Hold Software and what to look for when selecting
Eight Steps to Defensible Legal Holds, By Brad Harris, Director,
Discovery Center of Excellence & Technology Consulting
Practice, Fios, Inc., February 11, 2009. When litigation or a
government investigation is reasonably anticipated, a company is
obligated to take steps to ensure the preservation of electronically
stored information (ESI). But what steps need to be taken, and where
does the process begin? Contrary to the advice of many industry
pundits, it doesn’t start with a legal hold notification. This article
outlines eight critical steps for ensuring a duty to preserve is being
should Clarify Expectations, written by Thomas Allman, a
Senior Counsel in the Chicago offices of Mayer, Browne, Rowe
and Maw LLP and published in the August 2005 edition of Law Technology
News. Thomas Y. Allman is on the Steering Committee of The Sedona
Conference® Working Group on Electronic Document Retention and
vs. Dynamic Content: Lifecycle Management.
AIIM. April 25, 2011. James Watson. Dynamic content includes wikis,
user-generated profiles, activity streams from business-oriented social
software and interim versions of electronic documents. As more
organizations deploy social business applications and seek to manage
content contributed to internal blogs and wikis, there is an increasing
need for lifecycle management of dynamic content.
Steps In E-discovery Continued: Knowing Where “Stuff” Is And Planning
To Retain It. March 2011. Mark L. Austrian and Martin
Krolewski writing in Metropolitan Corporate Counsel. This article
focuses on two critical components of an ediscovery plan: ESI systems
analysis and record retention policies.
Records Management Self-Assessment Report, published February
2011, by NARA."In 2009, NARA established an annual requirement that all
Federal agencies subject to the Federal Records Act (44 U.S.C. Chapter
31) perform records management program self-assessments and report the
results to NARA. NARA’s records management self-assessment report
presents this data, explores significant findings, and provides
recommendations for improvement. Overall, this report provides a
baseline measure of the effectiveness of records management programs
and practices in the Federal Government."
Employees from Hoarding Electronic Documents. November 29,
2010. Mark Diamond writing in Inside Counsel. Employees resist deletion
of email, wikis, blogs and IM. Author offers strategies to avoid the
Elements of Defensible Deletion Strategy. November 15, 2010.
Mark Diamond writing in Inside Counsel. While some companies do get in
trouble for not saving documents for the required retention period,
most face the opposite problem: Their de facto policy is to save nearly
all documents forever. This ongoing accumulation drives up storage
costs and increases the risks and costs of discovery in the event of
litigation or investigations. Few companies implement ongoing, routine
deletion of electronic information, but they should.
Smarter Evidence and Document Management - October 2010. "The
problem of too much irrelevant or nonresponsive data should be
addressed first at its source – failed records and information
management – and, second, by rethinking and reengineering the
e-discovery response. The challenge associated with records and
information management took decades to develop and could take some time
to solve. This paper provides suggestions for approaching this
challenge and its impact on discovery."
Peruvian Guano to Electronic Records: Canadian E-Discovery and Records
Professionals, Donald C. Force, Archivaria 69 (Spring 2010).
Retention: Striking the Right Balance, by Kelly Friedman.
Undated. Good practical advice from a Canadian leader in e-discovery.
Records Management, May 2008, Michele Hope, published in FedTech
Magazine. Five keys let agencies unlock tools that make
navigating the world of e-preservation in government straightforward.
Advice from Jason Baron (NARA Director of Litigation) and Jonathan
Redgrave, Editor-in-Chief of The Sedona Principles (U.S. Edition).
Sedona Guidelines: Best Practice Guidelines & Commentary for
Managing Information & Records in the Electronic Age.
(November 2007 version). A Project of The Sedona Conference® Working
Group on Best Practices for Electronic Document Retention &
Production. Original public comment version was released in September
2004. Based on comments received, the introduction was revised
significantly to better introduce readers to concepts involved in
records and information management in the digital age. Citations to
newly decided cases such as Andersen, as well as
references to recently publications from ARMA and AIIM have also been
a Good Document Retention Strategy, April, 2006. Wendy Cole's
Canadian adaptation of LexisNexis' paper with the same title.
Legislative and caselaw references are all Canadian. What Corporate
Counsel Should Know About Retention and Destruction Policies for
Digital Data: Elements of a Good Document Retention Policy.
Management and Archiving
Seven Deadly Sins of Implementing an E-mail Archive System,
May 7, 2011, by Paul C. Easton and Allen Gurney. "In
this TechnoFeature, eDiscovery and project management experts Paul
Easton and Allen Gurney discuss the seven most common pitfalls involved
in implementing an ESI archive system. More importantly, they explain
how to avoid these pitfalls. In other words, required reading for all
in-house and outside litigation counsel."
Email Preservation – Email Infestation, March 29, 2011, by
Greg Buckles. Focuses on the problem of e-mail stores outside of IT's
control (and other squirrel files).
Gartner Magic Quadrant for Enterprise Information Archiving,
29 October 2010, Sheila Childs and Kenneth Chin.
MarketScope for Enterprise Instant Messaging and Presence, 8
October 2010, David Mario Smith. Enterprise instant messaging (IM)
platforms have become more than just instant messaging. The IM system,
because of the association with the presence engine, is a piece of
infrastructure that traditional collaboration and communications
vendors see as a strategic component for unified communications and
collaboration (UCC). The presence engine is becoming an anchor point
for other collaboration and communications investments, giving the
vendor who controls it more leverage.
Isn't as Ethereal as You Might Think, September 1, 2010, by
Craig Ball. Accessible explanation of e-mail standards like SMTP and
MIME, as well as the information contained in the e-mail's internet
header and how it would be useful.
New Deduplication Debate: Where to Draw the Line on Deduplication.
August 9, 2010. Jerome M. Wendt writing on the DCIG blog. "In the
last couple of years the business case for deduplicating archive and
backup data, which is characterized by high levels of redundancy and
infrequent access, has clearly been made.... But as one looks to move
deduplication up the stack into primary storage ... where to
draw the line on what data to deduplicate can start to get a little
hazy. While introducing deduplication onto primary storage
systems can certainly reduce data stores and ultimately lower storage
costs, there is no guarantee that deduplication is appropriate for all
data residing on primary storage."
What Works: Locking Down Requirements for an Email Management Solution.
February 9, 2010. Carl Weise writing for AIIM. Before looking for
technology solutions for your Email Management program, you must
identify your platform and functional requirements.
Establishing an Email Retention Policy: The Legal
Perspective. By B.K. Winstead of Penton Media. Published March 5, 2009.
Interview with Elise Zealand, VP and Corporate Counsel of Penton Media,
about the development and implementation of the email management policy.
Magic Quadrant for E-Mail Active Archiving. May 2008.
Gartner's 2008 e-mail active-archiving Magic Quadrant is focused on
enterprise-class products that met the criteria defined below and that
were able to prove, through strong references, their ability to address
the needs of an organization looking to support thousands of users.
Conference® Commentary on Email Management (August, 2007)
Editor: Thomas Y. Allman. Many organizations are struggling to decide
how to best cope with the explosion of email while reconciling
competing needs imposed by business, regulatory and litigation
requirements. This Sedona Conference® Commentary suggests Guidelines
for determining the core elements of an email retention policy suitable
for public and private entities.
Magic Quadrant for E-mail Active Archiving, 2007 May 2007.
Published on Law.Com. E-mail active archiving products continue to add
functionality to meet new market demands. Solutions are available to
meet basic and complex requirements at a corresponding range in cost.
of E-Mail Evidence: Proposed Intranet Policies and a Framework for
Analysis, published in 1999 by Glasser Legal Works. Document
and e-mail retention, archival and destruction policies and compliance.
Networks and Discovery
Employers Can Balance Social Media Rights and Obligations,
May 10, 2011, by Amy Komoroski Wiwi and Lawren Briscoe
writing in the New Jersey Law Journal, published on Law.Com.
"Today's employers are expected to perform a balancing act of various
competing interests and inconsistent obligations regarding the
monitoring and directing of their employees' use of social media and
other internet activities."
social media and why it’s ideal for lawyers,
May 6, 2011. Jordan Furlong writing on StemLegal's blog. Written
primarily to explain to lawyers how they might take advantage of social
networking in their marketing, but also very good at explaining the
different types of social media.
Media Policy After NLRB, Facebook Settlement. March 23, 2011.
Walter Stella and Jessica Boar writing in The Recorder, published on
Law.com."In light of the uncertain state of the law regarding social
media policies, employers should make sure that employees could not
reasonably construe any of their policies to infringe on their §7
Feature Could Ease Cloud-Based EDD, February 23, 2011, by
Craig Ball, in Law.com. "Last fall, Facebook quietly added a feature to
Account Settings called "Download Your Information." Users wanting to
collect a copy of their Facebook wall posts, photos, videos, messaging,
friends lists, and other personal profile content can click a link and
request that it all be neatly packaged in a Zip file for download."
Takes A Turn - Charting The Course To Discovery From Social Networks,
January 31, 2011. Loryn P. Riggiola and Grace A. Brown, Sills
Cummis & Gross P.C. For many Americans, social networking
is their primary source of connection and communication. Statistics
confirm that as social networking increases, the use of individual
email dramatically declines.1 In order to conduct comprehensive
discovery, information transmitted through social networking providers
("SNPs") must be uncovered. Whether the case involves a commercial
dispute or a product defect - postings, pictures and messages
transmitted through SNPs can be a valuable source of discovery.
Social Computing Guidelines. Blogs, wikis, social networks,
virtual worlds and social media. IBM first created guidelines for
bloggers in 2005. These were updated in 2008 and again in 2010, and
this link is the current version (retrieved April 28, 2011), and the
scope has been broadened to include all social media.
Angeles, Minnesota Discuss Migrating to Cloud Computing, May
11, 2011, by Merrill Douglas writing in Government Technology.
in the cloud is much more challenging than simply switching on the lamp
you’ve plugged into the wall. The reality is that as with any other IT
project, the CIO overseeing a migration to software as a service must
keep both feet planted firmly on the ground."
you save money with cloud computing? May 3, 2011, Larry
Dignan, ZDNet. "The
common perception is that cloud computing can save you a bundle, but a
Forrester Research note indicates that the calculus is complicated. In
fact, companies that don’t manage resource consumption well could get
To Create The Case For Cloud, Chuck Hollis' blog (EMC), April
13, 2011. Article discusses the considerations that go into the
computing e-discovery risks a concern. April 12, 2011.
Interview with Alison Stanton, U.S. Department of Justice's Director of
E-Discovery. Published on Federal News Radio.
on Security and Privacy in Public Cloud Computing, January
2011, by Computer Security Division, Information Technology Laboratory,
National Institute of Standards and Technology. Draft NIST Special
NIST Definition of Cloud Computing,
January 2011, Peter Mell and Timothy Grance. "Cloud computing is still
an evolving paradigm. Its definition, use cases, underlying
technologies, issues, risks, and benefits will be refined and better
understood with a spirited debate by the public and private sectors.
This definition, its attributes, characteristics, and underlying
rationale will evolve over time." Covers essential characteristics,
service models and deployment model on pages 6-7.
Report on the 2010 Office of the Privacy Commissioner of Canada's
Consultations on Online Tracking, Profiling and Targeting and Cloud
Computing: For Comment (October 2010). "The OPC is seeking
feedback from stakeholders on the public/private divide, children
online, meaningful consent, and other uses of tracking, profiling and
targeting. The OPC is also proposing to undertake specific activities
in relation to online tracking, profiling and targeting, specifically,
in terms of research and outreach activities."
Cloud-Computing Contracts for EDD. April 20, 2010. Josiah Q.
Hamilton writing in Texas Lawyer, published on Law.Com. "Attorneys must
ensure that contracts clients enter into with cloud computing service
providers contain language covering litigation support, documentation
retention and destruction, the return of data from the provider to the
client, and the format and cost of providing such data."
Checklist for Cloud Computing Deals, Edward A. Pisacreta,
April 9, 2010, E-Commerce, Law and Strategy.
for the Cloud(s):Privacy Issues related to Cloud Computing,
March 29, 2010. Office of the Privacy Commissioner of Canada.
About Managing Federal Records In Cloud Computing Environments,
Fall 2009, NARA.
"Many of the recent Government 2.0 initiatives, including Data.gov, use cloud
computing services. The purpose of this FAQ is to provide agency
records officers with a basic overview of cloud computing, its benefits
and concerns, and records management implications that agencies will
need to consider when implementing cloud computing services."
Let My E-Mail Go! September 25, 2009. Craig Ball. Collecting
e-mail from cloud providers like Yahoo, Google, Hotmail and others.
of Sections on Electronic Records in Evidence Acts in Canadian
Jurisdictions (June 2011).
Antoine Levar Griffin v. State
of Maryland, in the Court of Appeals of
Maryland, April 28, 2011."In this case, we are tasked with determining
the appropriate way to authenticate, for evidential purposes,
electronically stored information printed from a social networking
website, in particular, MySpace".
Reliability, Admissibility, and Power of Electronic Evidence,
January 25, 2011. Zachary G. Newman and Anthony Ellis writing on the
Web Pages as Evidence. January 21, 2010. M. Anderson Berry
and David Kiernan. "Although the burden of authenticating a document is
usually quite low, doing so for a screen shot of a website presents an
additional challenge, as courts generally view such information with
of Text Messages: Challenging Authenticity, June 25, 2009, by
of E-Evidence in Minnesota: New Problems or Evidence as Usual?
Keiko L. Sugisaka and David F. Herr. Vol 35:4 (2009) William Mitchell
Law Review. "Comparatively little has been written on the myriad issues
relating to how electronic evidence, once discovered, is treated when
it is offered as proof. Less still is written on how the
issues are handled under Minnesota law. This article addresses the
evidence issues presented by electronic evidence, and suggests how
these issues should be addressed under Minnesota evidence law."
Sedona Conference® Commentary on ESI Evidence
& Admissibility, March 2008.
Includes in Appendix A a practical guide by Judge Paul Grimm and Kevin
Brady. Judge Grimm is the author of the leading case on admissibility
in the U.S. - Lorraine v. Markel.
Gates summary of Lorraine v. Markel,
the lead U.S. case in the admissibility of electronic information. May
and Presentation of Electronic Evidence, April 2006, by
Graham J. Underwood. Presented at a conference of the Continuing Legal
Education Society of British Columbia.
the Narrative: Early Case Assessment and the Myth of the 'Not Winnable'
Case. December 2, 2010. Portia Moore and Theodore Prosise.
There is no "perfect" employment case — every case has facts that are
messy and, at best, unfortunate. But, if you demand that a meaningful
Early Case Assessment ("ECA") be completed within the first 90 to 120
days after outside counsel is first given the case, you can identify
and then control and minimize any negative facts before a plaintiff's
attorney can effectively use them to weaken your position.
Cost Survey of Major Companies, prepared for presentation to
Committee on Rules of Practice and Procedure Judicial Conference of the
United States, 2010 Conference on Civil Litigation, Duke Law School,
May 10‐11, 2010.
Points for Achieving E-Discovery Cost Effectiveness, Joe
Howie, 19 April 2010, InsideCounsel. Tips on how to incentivize lawyers
to find and implement cost-effective e-discovery solutions.
e‐Discovery in‐house: risks and rewards, February 1, 2010,
George J. Socha. "This paper provides a straightforward, pragmatic
overview about how legal professionals and organizations confronted
with e‐discovery must be able to interpret e‐discovery within the
context of actual expected processes, inherent risks, and the available
technical solutions that can support relevant activities."
Advanced Technology Gives Attorneys a Strategic Advantage Before
Collection. Albert Barsocchini, February 1, 2010,
InsideCounsel. "New advances in technology have now made the
e-discovery process non-linear and more flexible, faster and more cost
Ethics and eDiscovery Review. Patrick Oot, Joe Howie and Anne Kershaw. Published in the Jan-Feb 2010
edition of ACC Docket. "A recent study published by the Ediscovery
Institute based on a survey of leading ediscovery providers (Deduping
Survey) shows that, despite the technical ability to suppress or
consolidate duplicates within an electronic document population,
chances are about 50:50 that your outside counsel fails to take
advantage of this technology, opting instead to doublebill for
reviewing unnecessary duplicates for privilege, confidentiality and
Dilemmas: Social Media Increase Possible Risk of Releasing Material
Information. Michael Kozubeck writing in January 2010 edition
of InsideCounsel. The Internet and social media have changed the way
people get information of all kinds, and investment information is no
exception. But just as technologies have raised new legal issues for
in-house counsel in areas ranging from hiring procedures to trademark
protection, they also have in investor relations.
of ESI After Layoffs, Craig Ball, 2009. As always, good
The Pain of E-Discovery, Information Week, May 30, 2009,
by Andrew Conry-Murray. "Here's how three companies have pulled
together IT, legal, and other stakeholders to reduce the complexity and
cost of finding information when the lawyers come calling."
Sedona Conference Commentary on Achieving Quality in the
E-Discovery Process, Public Comment version, May 2009. Jason
R. Baron and Macyl A. Burke. Cost-conscious clients and over-burdened
judges are demanding that parties now undertake new approaches to
solving litigation problems. The central aim of the present Commentary
is to introduce and raise awareness about a variety of processes,
tools, techniques, methods, and metrics that fall broadly under the
umbrella term “quality measures,” and that may be of assistance in
taming the ESI beast during the various phases of the discovery
about your eDiscovery Project? A Primer on the Legal Discovery
Technology Landscape, by Vivian Tero of IDC. May 2009
Your Way Through Discovery with Data Mapping, Brett
Tarr, published in The Corporate Counselor, January 6, 2009. A data map
represents the intersection of the expertise of IT and legal
departments, and it should illustrate the limitations or boundaries of
how information is moved and stored. It allows in-house counsel to see
where data resides, not just for litigation purposes but for regulatory
and compliance issues, as well as proactive information management
EDD In-House Could Contain Costs, Patrick Oot, Law
Technology News, October 8, 2008. Without a doubt, cost containment is
the top concern of general counsel and law firms alike when dealing
with electronic data discovery. A key area of debate is whether to keep
EDD in-house, or ship it to less expensive locations, in the United
States or abroad. An in-house program replaces the roles of outside
service providers with in-house software, infrastructure and employees
who sit within an organization's firewall.
ESI Risk Management Questionnaire, developed by RenewData, a
vendor of eDiscovery services in the U.S. Retrieved August 12, 2008.
Top Ten List for the Evolving Role of In-House Legal and Compliance Officers.
A blawg entry posted on December 31, 2007 by Rick Wolf.
eDiscovery: Does Your Enterprise Know Where Its Data Is?,
published in the November 2007 edition of The Metropolitan Corporate
Counsel. For organizations faced with the challenges of addressing ESI,
there are three crucial aspects about ESI needed to achieve eDiscovery
readiness: (1) knowing the location, (2) understanding the availability
or accessibility, and (3) understanding the potential relevance.
Because responsibility for addressing ESI typically resides in both the
legal and information technology (IT) spheres, it is paramount to have
effective communication and interaction between these two groups. This
article will address how legal and IT teams can work together to locate
and map ESI, in order to meet obligations for both the courts and other
And E-Discovery: Two Inseparable Risk Management Functions.
An interview with Mary Mack of Fios in the September 2007 edition of
The Metropolitan Corporate Counsel.
Electronic Discovery Trend to Watch: Technology Counsel.
Dennis Kennedy's blog, August 2007. Technology Counsel is both an
externally facing and internally focused position that requires a
strong grasp of the connection between law and technology and its
effect on the corporation. This position requires an experienced legal
mind as well as a strong technical background. Furthermore, the
position necessitates a firm understanding of internal enterprise
resources, project management, project lifecycle, and the ability to
function as a resource on high-profile and high-exposure
investigations, regulatory events and litigation.
Voicemail On The Front Page Of The New York Times - It Could Happen.
Theodore E. Tsekerides and Isabella C. Lacayo. Weil, Gotshal &
Manges LLP March 2007 edition of The Metropolitan Corporate Counsel.
Practitioners and their clients should be mindful that voicemail, like
email, is an area of discovery that may pose significant challenges in
any litigation and proceed with care. Developments in the Vioxx
litigation brought this reality to bear for Merck & Co., Inc.
when a court ordered Merck to preserve and produce all Vioxx-related
Developing Concept Of "National E-Discovery Counsel".
Published in Metropolitan Corporate Counsel in January 2007. Steven C.
Bennett of Jones Day. This article looks at yet another emerging trend,
toward development of "national e-discovery counsel," responsible for
overseeing, on behalf of major institutions, the processes followed,
legal arguments advanced, and evidentiary records developed, in
defending major institutions against attacks using the weapons of
e-discovery. The article closes with some suggestions for how such
national e-discovery counsel might most appropriately operate to serve
this new role.
Find New Ways To Cut E-Discovery Costs, published in the
December 1st, 2005 edition of Inside Counsel. "With CFOs placing
increasing pressure on GCs to reduce expenses, e-discovery costs have
become a major target for cutbacks. Fulbright & Jaworski’s
annual study of litigation trends named e-discovery as the No. 1 new
litigation-related burden for companies with revenues of more than $100
Quadrant for Enterprise Content Management, 16 November 2010,
Toby Bell, Karen M. Shegda, Mark R. Gilbert, Kenneth Chin. The term
"enterprise content management" (ECM) refers both to a strategy to deal
with all types of enterprise content and a set of software products for
managing the entire life cycle of that content.
IT Survey 2010 Reveals Cloud, Social Software and E-Mail Turbulence,
10 November 2010, Gartner Research Note, Tom Austin. Gartner asked 416
U.S. IT professionals about their firms' choice of workplace and social
tools and cloud services. Change is in the air, even in mature segments
like e-mail, but no one vendor or deployment model is wholly dominant,
and enterprises can find it tricky to justify and time a switch.
Gartner Magic Quadrant for Social Software in the Workplace,
25 October 2010, Nikos Drakos, Jeffrey Mann, Carol Rozwell. "A minority
of early adopters are deploying social software products across their
organizations. Others are actively investigating products with broader
functionality, targeting use cases connected with internal teams,
communities and employee networks...For most buyers, the hardest part
is not making the technical choices but establishing business value,
deciding on acceptable risk, designing appropriate governance
frameworks, and overcoming culture and behavior obstacles."
Success Factors for IT and eDiscovery. September 13, 2010.
Christine Taylor writing in Enterprise Storage Forum. Some eDiscovery
technologies directly impact IT. These are the products that support
the early eDiscovery stages: identifying, collecting and preserving
electronically stored information (ESI).
Gartner Magic Quadrant for Secure E-Mail Gateways, 27 April
2010, Peter Firstbrook and Eric Ouellet. "The e-mail security market is
very mature. Targeted phishing detection, outbound e-mail inspection,
encryptions and delivery form factor are all major differentiators."
Making E-discovery an Internal Function, March 29, 2010, Joan
Goodchild writing in NetworkWorld. A Chief Information Security Office
talks about the growing number of cases and the increases in both the
amount of electronically stored information and hours spent supporting
the process. In this article, the CISO talks about how the company
tackled the costly and time-consuming process and turned it into a
cost-effective and more efficient system that has seen a 40-45 percent
gain efficiency since its implementation.
The IT Manager's Role in Proactive Information Retention and Disposition
Management: Balancing eDiscovery and Compliance Obligations with IT Operational and Budget Constraints,
March 2010, IDC, Vivan
Tero and Laura DuBois. "As data volume and storage infrastructure grow,
corporate IT organizations are tasked with meeting their operational
service levels and cost containment objectives while also supporting
corporate data retention, privacy, and eDiscovery obligations."
Analytics - research tools for unstructured content and rich media.
2010. Doug Miles of AIIM Market Intelligence Group. The term “Content
Analytics” has been coined to cover a range of search and reporting
technologies which can provide similar levels of business intelligence
and strategic value across unstructured data to that conventionally
associated with structured data reporting. Sophisticated content search
across text and rich media file-types, combined with trend analysis,
content assessment and behavioral reporting, has created the
opportunity to track and manage unstructured content and digital assets
with the same levels of capability as BI reporting of structured
content - with associated business benefits of content optimization,
asset management, pattern detection and compliance monitoring.
for E-Discovery Software Product Vendors. December 21, 2009.
Debra Logan, Whit Andrews, John Bace. Recent update to their review of
products, and a discussion of the trend to moving e-discovery
"in-house". Reviewed by CMSWire in their Jan 8, 2010 edition: Gartner
Provides Advice on the eDiscovery Vendor Landscape.
eDiscovery Technology Trends 2009: Doing More with Less While Facing
Increasing Complexity in eDiscovery, Vivian Tero, IDC,
November 2009, sponsored by FTI Technology.
from Counsel: Best Practices on Controlling E-Discovery Costs,
Ari Kaplan, Fall 2009, sponsored by FTI Technology.
an Email Retention Policy - the IT Perspective.
March 19, 2009. Interview with Penton Media's infrastructure services
director about their implementation of Exchange 2007 managed custom
folders. See related piece on the legal perspective here.
Best Practices 101: Governance and enterprise content management. How
do you stack up? James Watson, PhD. Published in Infonomics
Weekly, February 24, 2009. How do you decide which ECM capabilities get
rolled out to which users? How do you get additional user groups on
board for additional ECM functionality? How do you prioritize the
rollouts, and how do you allocate resources? When you’re doing all
these things at an enterprise level, you need that centralized
organizational authority. Read on to find out what we consider “worst
in class,” “average,” and “best in class” – and to find out how your
organization is doing it comes to governance.
IT Inventory to Meet Your EDD Needs, John Roman Jr., in
February 24, 2009 edition of Law Technology News. For many years, a
debate has raged about the value of technology inventories for disaster
recovery and business continuity, and whether they should be performed
by your internal IT department or an outside organization. But today,
there's a new twist to the debate: how much will inventories help your
preparedness for litigation and electronic data discovery?
LegalTech 2009 Shows Higher Bar for E-Discovery, February 11,
2009, Gartner analysts report. "A conference on IT for the legal
profession shows that lawyers will have to meet higher standards for
understanding discovery and litigation. IT professionals should help
educate the legal department about technologies that can
Gartner MarketScope for
E-Discovery Software Product Vendors, published December 17, 2008. Debra Logan, John Bace, Whit Andrews.
Includes a superb taxonomy of e-discovery functionality. Courtesy copy
available on the Clearwell website.
Got Data? A Guide to Data Preservation in the Information Age,
article by Francine Berman in the December 2008 edition of the
Communications of the ACM. A better model for preserving data is needed
and it requires worldwide collaboration, according to a task force on
digital preservation and access. Articles discussing the paper can be
Infoworld and in the
IT And Legal Make A Great Team. Yeah, Right, posted September
26, 2008 by Andrew-Conry-Murray on the Information Week blog. Legal and
IT need to talk more.
The Litigation Hold: Why You Don’t Have to Hold Everything,
by W. Lawrence Wescott and Randolph A. Kahn, August 5, 2008 edition of
Computer Technology Review. The advent of electronic discovery has
introduced new terms into the IT vocabulary. One term, which now
seemingly strikes fear into the hearts of IT managers, is the “legal or
Discovery: Are you really ready? June 4, 2008,
published in CIO.Com. There's an urgent need for companies to adopt
standardized policies and IT practices for the identification,
preservation and collection of potentially responsive data.
Planning for Compliance and e-Discovery April 2, 2008,
published in Computer Technology Review. Pressing issues with
compliance, pain points for IT, key strategies and best practices from
Data Wide Open to Your Opponent? March 12, 2008. Nolan M.
Goldberg. The National Law Journal. FRCP 34(a) enables a party, in
certain situations, to collect an opponent's electronic data and
associated metadata, itself. The assistance of an organization's IT
team in navigating these situations is critical to help oppose such an
inspection, or help conduct it if ordered by the court.
Management: Best Practices for IT Slides from a webinar
sponsored by RenewData, given on February 12, 2008. Discusses impact on
IT, evolving roles and best practices.
10 Steps to Creating Defensible Living ESI Content Maps, Brad
Harris, December 24, 2007. Published in New Jersey Lawyer. The detailed
"content mapping" process has become a crucial component of discovery
preparedness and can often mean the difference between obtaining a
favorable scope of discovery or, on the negative side, increasing risk
of inadvertent data spoliation and expensive, negative outcomes.
of E-Discovery Threatens to Skew Justice System, Gartner RAS
Core Research Note G00148170, John Bace, 20 April 2007, R2283 07262007.
Georgetown University law Center sponsored a panel discussion on the
impact of e-discovery in March 2007. Harvard Law School professor
Arthur Miller was the moderator and panellists included U.S. Supreme
Court Justice Stephen Breyer.
Issues: 5 Tips for electronic discovery April
24, 2007, by Brian Reny. Published by CIO Canada. Legal aspects CIOs
need to know, written by a technologist for an IT/Records audience.
CIO's Guide to the new Federal Rules of Civil Procedure.
Assessing the IT impact of Email / File Retention and Discovery
Requirements. Published on the Law.Com website. July 2007. Prepared by
Contoural, Inc. and Symantec. Changes to the Federal Rules of Civil
Procedure mandate changes in the way organizations manage their data.
This Symantec sponsored whitepaper details the changes to the Federal
Rules of Civil Procedure and how those changes impact IT at three
Leveraging Technology to Enable Automatic Legal Holds.
Storing all business records poses litigations risks, strains IT
dollars and resources. Published on Law.Com website. March 2007. The
explosive growth in electronic communications has resulted in a
corollary growth of email as a primary source of legal discovery when
organizations are faced with litigation. Recognizing that production of
email in litigation or regulatory investigations is virtually
inevitable given the predominance of email in the enterprise,
organizations must now grapple with how to implement effective and
efficient litigation holds in the electronic age.
Business Value of Reducing Costs and Risks of e-Discovery and
Regulatory Compliance. Law.com. March 2007. Discovery and
compliance costs and risks can be lowered through prudent planning,
deployment of cost-saving technologies, and execution of operational
best practices. While the main internal customers for IT-supported
compliance and discovery services—usually lawyers, finance, and sr.
management—will define policies and set service level requirements, the
IT department plays a crucial role in delivering an archiving and
The Importance of IT within the Electronic Discovery Process,
April 2008. Brian Babineau. Enterprise Strategy Group. Traditionally,
locating, reviewing, and preparing evidence is left to corporate
attorneys. However, now that evidence is in the form of e-mails,
spreadsheets, database tables, voicemails,and other data, IT and the
systems it manages are at the center of many corporate legal matters.
Organizations should consider revamping electronic discovery processes,
expanding IT’s role to facilitate the retrieval and restoration of
The Billion-Dollar Data Storage Error in Computerworld's July 26, 2005 edition.
Litigation, by Mary Mack, published October 6, 2004 in CIO
Update. With most enterprise data kept in electronic form today, CIOs
need to formulate a working relationship with legal before a discovery
request comes in, writes CIO Update guest columnist, Mary Mack,
director of Sales Engineering at Fios.
forensics for the more technically minded
Wiki, showing techniques for retrieval of information from
smart phones and other more challenging sources. Last retrieved June
Forensics and E-Discovery – What are their Respective roles in
Litigation? April 11, 2011. From Studeo Legal blog.
End of Digital Forensics? March 29, 2011. Craig Ball writing
Delete Doesn't Do It. April 1, 2011. Craig Ball.
Antiforensics tools may give users the illusion that they can trash
compromising files, but experts will find them.
Forensics White Paper, November 2010, Andrew Hoog and Katie
Death of Imaging, September 1, 2009, EDDUpdate, by Eric
Blank. Forensic media imaging captures the greatest volume of raw data,
but it also dramatically increases the financial burden on the
producing party. The debate focuses on whether and when imaging should
be used for forensic work due to its inherent high price tag.
Forensics, last updated July 2009. Published on the Forensics
Forensics, presented at Mobile Forensics World 2009, by
Andrew Hoog. May 29, 2009.
is for Evidence, by Tae Kim of Kroll Linquist Avery, Toronto.
Dated January-February 2004. Electronic evidence can sometimes be found
in the most unlikely places.
and Seizing Computers and Obtaining Electronic Evidence in Criminal
Investigations, U.S. Department of Justice (updated regularly)
Examination of Digital Evidence: A Guide for Law Enforcement.
Administrative Office/Department of Justice Working Group on Electronic
Technology in the Criminal Justice System (2003) U.S.
Five Hottest Topics in E-Discovery Today, May 2, 2011, by Ben
Kerschberg writing in Forbes Magazine.
Key E-Discovery Issues In 2011: Expert Insight to Manage Successfully,
April 3, 2011, by Judge Andrew Peck and David Lender, writing in
Metropolitan Counsel. Another version of this list appeared in Ralph
Losey's eDiscovery Team blog - Top
Ten e-Discovery Issues by Judge Andrew Peck and David Lender.
Many nods to Sherlock Holmes - fun and informative read.
eDiscovery Best Practices from Real-World Cases, published by
Clearwell. Caveat - promotional material - but still good.
Good for free legal research - U.S. materials.
Electronic Discovery: "Ball in Your Court" April 2005 - February 2011.
Craig Ball's always insightful columns in Law Technology News.
A Special Master's Perspective. 2010. Craig Ball.
Lawyer's Guide to the Language of Data Storage and Networking,
Craig Ball, 2009. Written "accessibly".
Search, November 1, 2009. Dennis Kennedy writing in
ABAJournal. Not about search as applied to the problem of e-discovery,
but rather information on alternatives to Google such as Bing/Yahoo,
metasearch engines, WolframAlpha and SenseBot (sematic search).
Judges Should Know About Discovery from Backup Tapes, Craig
Ball, 2007. Good and practical advice on the problem of backup tapes,
what can drive up expense, and what a party should cover if it is
arguing that the burden of recovery from tapes exceeds utility.
Gold Mine of Electronic Discovery Expertise: A Conversation Among
Veterans of Electronic Discovery Battles, in the July 2004
edition of Law Practice Today on the ABA website.