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ELECTRONIC DISCOVERY - A Reading List

 

Updated June 20, 2011

This list was created by Peg Duncan, a member of the Editorial Board of The Sedona Conference® WG7 (Sedona Canada), and is a supplement to the September 2005 issue of LAWPRO Magazine. It is available at www.practicepro.ca/ediscovery.


 

Sedona Canada has issued "public comment versions" of The Sedona CanadaSM Commentary on Proportionality and Cost containment in Electronic Disclosure and Discovery. Commentaries on Privacy, Cost Containment and Enforcement of Letters Rogatory in the summer of 2011. Look for them on http://www.lexum.org/e-discovery/.

 

Introduction
Background Information on Electronic Discovery
Manuals of Complex Litigation and Guidelines
Canadian case law digests
American case law digests
Rules of Civil Procedure and Practice Directions
Proportionality and Marginal Utility
Early Case Assessment 
Discovery Planning
Project Management and Cost/Burden Estimation
Collecting electronic information
Preservation
Metadata 
Sample documents
Culling, harvesting and processing 
Search
Review
What to look for in selecting vendors for electronic discovery
DIY and Small Firm Electronic Discovery 
Production and disclosure of electronic information 
Litigation readiness
Legal Holds
Records Retention
E-Mail Management and Archiving
Social Network and Discovery
Cloud Computing
Authenticating Electronic Information
For Corporate Counsel
For CIOs
Computer forensics for the more technically minded
More good stuff 

 

 


 

 

Introduction

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. 

Background Information on Electronic Discovery

 PinHawk Law Technology Daily Digest, edited by Jeffrey Brandt, Editorial Advisory Board Member at Law 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.

The 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.

The 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.

EDD Update - 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 blogosphere.

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.

Canadian 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.

The Electronic 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.

Canadian LAWPRO’s 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.

Manuals of Complex Litigation and Guidelines

Canadian The Sedona Canada Principles Addressing Electronic Discovery. A Project of The Sedona Conference® Working Group 7 (WG7) Sedona Canada. January 2008.

Canadian 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. Aussi disponsible en français ici.

Canadian Guidelines 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.

Judges’ Guide to Cost‐Effective E‐Discovery, published by the eDiscovery Institute in October 2010, by Anne Kershaw and Joe Howie.

 Deloitte's Electronic 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.

Managing 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.

The 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 of sanctions).

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 has created.

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.

Canadian 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 Institute (CANLII) collections. CANLII is a public and free virtual law library of Canadian legal materials.

Canadian (Common Law) E-Discovery Case Law Digest (Updated June 2, 2011)

Quebec (Civil Law) E-Discovery Case Law Digest (Updated October 20, 2008) 

American case law digests

Electronic Discovery Law: Case Summaries, from K&L Gates, a law firm based in Seattle, Washington. Continuously updated.

Kroll 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.

Rules of Civil Procedure and Practice Directions

Canadian Principles 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.

Australian Managing 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.

Canadian Amendments to the Alberta Rules of Court came into effect November 2010.

Canadian Amendments to the British Columbia Supreme Court Civil Rules came into effect July 2010.

U.S. Seventh 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.

Canadian  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 titled "Ontario Rules of Civil Procedure - Summarizing the Developments" reporting cases related to the new Rules.

Canadian  Practice 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 page 488.

British Final 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.

Australian Supreme Court of Victoria, Commercial Court, Practice Note 1 of 2010.

British  Pre-Action 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.

Australian 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).

Canadian  Nova Scotia Barristers' Society, Nova 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 Electronic Information.

Canadian  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).

U.S. Federal Rules of Civil Procedure on the Cornell University Law School Legal Information Institute (LII) website.

U.S. Amendments 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.

British  Practice Direction 31A - Disclosure and Inspection. This Practice Direction supplements CPR Part 31. Last retrieved on April 29, 2011.

Proportionality and Marginal Utility

Canadian A 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."

U.S. Sedona 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.

Proportionality 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.

 Phasing 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."

Canadian The Sedona CanadaSM Commentary on Proportionality in Electronic Disclosure and Discovery, Working Group 7 “Sedona CanadaSM”. October 2010 Public Comment Version. 

U.S. The Sedona Conference® Commentary on Proportionality in Electronic Discovery, August 2010. Public Comment Version.

 When Is an E-Discovery Burden an Undue Burden? June 1, 2010. Jason Krause writing in Law.com.

You 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.

Canadian   Proportionality and Professionalism, The Advocates Journal, March 2009. The Honourable Warren K. Winkler, Chief Justice of Ontario.  This article is adapted from a presentation made at the American College of Trial Lawyers Annual Meeting in Toronto on September 26, 2008.

Informed, 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 same goal."

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 the Rule.

Asymmetrical 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."

A 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.

Canadian 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 determination."

Early Case Assessment

Early 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 come through.

From 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.

The '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."

EDD 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 original: Considering Analytics? April 7, 2009, published on Sharon Nelson's Ride The Lightning blog.

Bake 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 documents.”

What 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."

Reducing 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 Planning

Model Discovery Plans and Checklists for Preparing a Discovery Plan, Ontario E-Discovery Implementation Committee, April 13, 2010. Draft versions for comment.

 Mediation: 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."

Piecing 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.

Project Management and Cost/Burden Estimation

EDRM Project Management Guide, last retrieved June 10, 2011.

  Electronic 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.

  Myths, 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."

  Myths, 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."

 Bringing 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.

  Understanding 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."

Accounting 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.

 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 Principles.

  EDRM 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."

 Browning Marean's eDiscovery Project Management Template.

 E-Discovery Project Management: The Devil is in the Details. November 20, 2009. Julian Ackert, writing in Georgetown Law School's eDiscovery Law blog.

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.

Using 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 Mediation - 2008 E-Discovery Budget. Discovery Project TemplatePrecision Discovery Electronic Discovery Calculator; Lexbe Pages per Megabyte/Gigabyte Calculator for e-Discovery

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.

Harness 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. 

E-Discovery 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.

Canadian Is 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.

Achieve 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 litigation lifecycle.

Canadian Measure 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 probability analysis.

A Project Management Approach to eDiscovery, May 2008, Bryan Melchionda, Director of Client Services, DaticonEED Inc. 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.

Identifying 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.

Canadian Planning 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.

Collecting electronic information

Self 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 enterprises."

Backup 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.

Preserving Chain of Custody in E-Discovery, an Applied Discovery fact sheet available on the ACC website.

Harvesting 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.

 Manual 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?"

 Challenging '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?

 The Lowdown on Backups - Sometimes, tape backups can save the day. March 1, 2010. Craig Ball writing in Law Technology News.

Steer 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 DIY 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.

Examining 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.

Best Practices for Seizing Electronic Evidence. Third edition. U.S. Department of Homeland Security. 

Questions 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.

Preservation

 Until 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.

 How 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 process.

 E-Discovery's 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.

Ruling 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.

The 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 arisen.

 Reshaping 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.

The Last Words on E-Discovery? April 28, 2010. Leonard Deutchman. Law Technology News. Good analysis of the Pension Committee and Rimkus cases.

Assigning 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."

E-Discovery 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.

The 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.

Metadata

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.

Examining 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.

Redacting 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.

Minimizing metadata in WordPerfect®12 documents, from the Corel website. 

Saving 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.

Sample documents

Canadian Model Anton Piller Order. Ontario Superior Court of Justice Commercial List.

Canadian   Model E-Discovery Precedents, prepared by the Ontario E-Discovery Implementation Committee. Drafts originally published in June 2007 and continually updated with new materials. 

Collection Forms from Discovery Resources, FIOS. Includes "receipt of media form", "desktop collection information form", "server information form", and a "key personnel list".

Culling, harvesting and processing

EDRM Processing Guide. Last accessed June 10, 2011.

Processing - Processing Stages - EDRM. Last accessed June 10, 2011. Common data culling techniques.

 How De-NISTing 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.

Content-Centric 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 electronic data is no easy task, but the technology exists to make the process a little easier, and a little less costly

Equivio 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 environments."

Using 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

EDRM Search Guide, evergreen.

Law 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 predictive coding.

Search 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.

Human-Assisted 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."

  What 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.

CanadianKeyword 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.).

eDiscovery - 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 technology.

Crafting 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 effectiveness.

TREC 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.

In 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.

Understanding 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 privileged documents."

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.

The 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.

The 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.

Juggling 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.

Review

 Diamonds in the Rough: Finding Gems in a Well-Executed Document Review, May 2, 2011. Cathleen Peterson, Benita Sumey and Jennifer Fiorentino of Orrick. .

Canadian  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."

Can Technology 'De-Commoditize' Document Review? April 28, 2011. Robert W. Trenchard and Steven Berrent. New York Law Journal in Law.Com.Whatever 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.

Technology-Assisted 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."

Analytical 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?

Asserting and Challenging Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, 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 involvement."

 Controlling 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.

  Document 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 expense.

Review Section of the EDRM.

Document 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.

What to look for in selecting vendors for electronic discovery

 Choose Wisely. October 1, 2010. Kenneth Jones. Law Technology News. Bad decisions about vendors can be costly.

The 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 available.

Finding 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.

Navigating 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 discussed.

Electronic discovery - the process, common terms, and what to look for from e-discovery providers, from Litigation Information Management, Portland, Oregon.

Vetting 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.

DIY and Small Firm Electronic Discovery

 Acrobat 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.

 The 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.

 Itsy-Bitsy, 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.

E-Discovery for the Rest of Us: What You Need to Know Now! Sharon Nelson, ABA TechShow, April 2009.

E-Discovery for Everybody: The EDna Challenge. Craig Ball. December 2009."The 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.

Steer 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

Ten 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.

Smaller 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.

The 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 12, 2007.

Production and disclosure of electronic information

The 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.

Production Guide from The Electronic Discovery Reference Model. Extensive discussion of production of electronic information.

Litigation Readiness

How 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.

Practice 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 company-owned computer.

Proactive 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 policies."

The 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." 

 Data 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.

Litigation 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."

Smaller 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.

Legal Holds

What's 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.

The Sedona Conference® Commentary on Legal Holds: The Trigger & The Process, August 2010. Updated from original published in 2007.

How to 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 packages.

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 met.

New Rules 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 Production.

Records Retention

Fixed 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.

 Basic 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.

  2010 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."

 Preventing 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 underground archival.

 Four 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.

 EDRM: 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."

Canadian From Peruvian Guano to Electronic Records: Canadian E-Discovery and Records Professionals, Donald C. Force, Archivaria 69 (Spring 2010).

Canadian  Email Retention: Striking the Right Balance, by Kelly Friedman. Undated. Good practical advice from a Canadian leader in e-discovery.

Get Real on 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).

The 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 added.

Canadian  Elements of 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.

E-Mail Management and Archiving 

  The 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."

Custodial 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).

2010 Gartner Magic Quadrant for Enterprise Information Archiving, 29 October 2010, Sheila Childs and Kenneth Chin.

2010 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.

E-Mail 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.

 The 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.

Gartner 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.

The Sedona 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.

Gartner 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.

Spoliation 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.

Social Networks and Discovery

 How 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."

Canadian Explaining 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.

 Social 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 rights."

Facebook 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."

E-Discovery 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.

IBM 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.

Cloud Computing

 Los Angeles, Minnesota Discuss Migrating to Cloud Computing, May 11, 2011, by Merrill Douglas writing in Government Technology. "Computing 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."

 Can 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 hosed."

Helping To Create The Case For Cloud, Chuck Hollis' blog (EMC), April 13, 2011. Article discusses the considerations that go into the decision.

 Cloud 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.

Guidelines 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 Publication.

 The 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.

Canadian Draft 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 specific 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."

 Tailor 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."

A Checklist for Cloud Computing Deals, Edward A. Pisacreta, April 9, 2010, E-Commerce, Law and Strategy.

Canadian Reaching for the Cloud(s):Privacy Issues related to Cloud Computing, March 29, 2010. Office of the Privacy Commissioner of Canada.

FAQs 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."

 Yahoo! Let My E-Mail Go! September 25, 2009. Craig Ball. Collecting e-mail from cloud providers like Yahoo, Google, Hotmail and others.

Authenticating Electronic Information

Canadian Table 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".

 The Reliability, Admissibility, and Power of Electronic Evidence, January 25, 2011. Zachary G. Newman and Anthony Ellis writing on the ABA website.

 A Primer on Admitting Web Pages into Evidence. October 2010. James "Brin" Gibson and Ketan D. Bhirud, writing in Nevada Lawyer.

 Authenticating 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 suspicion." 

 Admissibility of Text Messages: Challenging Authenticity, June 25, 2009, by Josh Gilliland. 

 Admissibility 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."

 The 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.

 K&L Gates summary of Lorraine v. Markel, the lead U.S. case in the admissibility of electronic information. May 8, 2007.

Canadian Admissibility and Presentation of Electronic Evidence, April 2006, by Graham J. Underwood. Presented at a conference of the Continuing Legal Education Society of British Columbia.

For Corporate Counsel

 Controlling 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.

Litigation 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.

Pressure 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.

Bringing 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."

New 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 efficient." 

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 relevance."

 Disclosure 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.

Preservation of ESI After Layoffs, Craig Ball, 2009. As always, good practical advice.

Ease 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."

The 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 workflow process.

Confused about your eDiscovery Project? A Primer on the Legal Discovery Technology Landscape, by Vivian Tero of IDC. May 2009

Finding 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 initiatives.

Keeping 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 government entities.

Compliance 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.

Your 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 voicemail messages.

The 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.

GCs 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 million."

For CIOs

Magic 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.

Workplace 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.

2010 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."

 Critical 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).

2010 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."

 Content 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.

MarketScope 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.

Corporate eDiscovery Technology Trends 2009: Doing More with Less While Facing Increasing Complexity in eDiscovery, Vivian Tero, IDC, November 2009, sponsored by FTI Technology.

Advice from Counsel: Best Practices on Controlling E-Discovery Costs, Ari Kaplan, Fall 2009, sponsored by FTI Technology.

Establishing 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.

An 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 help." 

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 found in Infoworld and in the Datakos Blawg.

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 litigation hold.”

Electronic 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.

Roundtable: 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 industry experts.

Is Your 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.

ESI Risk 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.

Cost 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.

Canadian  Legal 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 different organizations.

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 retrieval solution.

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 critical evidence.

The Billion-Dollar Data Storage Error in Computerworld's July 26, 2005 edition.

IT and 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.

Computer forensics for the more technically minded

Forensic Wiki, showing techniques for retrieval of information from smart phones and other more challenging sources. Last retrieved June 10, 2011.

 Computer Forensics and E-Discovery – What are their Respective roles in Litigation? April 11, 2011. From Studeo Legal blog.

 The End of Digital Forensics? March 29, 2011. Craig Ball writing in Forensic Focus blog.

Double 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.

iPhone Forensics White Paper, November 2010, Andrew Hoog and Katie Strzempka.

 Android - Recovering deleted SMS (text messages) and other data. October 19, 2010. Via Forensics website.

The 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.

 Blackberry Forensics, last updated July 2009. Published on the Forensics Wiki.

Android Forensics, presented at Mobile Forensics World 2009, by Andrew Hoog. May 29, 2009.

Canadian E 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.

Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, U.S. Department of Justice (updated regularly)

Forensic Examination of Digital Evidence: A Guide for Law Enforcement. April 2004

Joint Administrative Office/Department of Justice Working Group on Electronic Technology in the Criminal Justice System (2003) U.S. publication.

More good stuff

 The Five Hottest Topics in E-Discovery Today, May 2, 2011, by Ben Kerschberg writing in Forbes Magazine.

10 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.

 2011 eDiscovery Best Practices from Real-World Cases, published by Clearwell. Caveat - promotional material - but still good.

Google Scholar (Beta). Good for free legal research - U.S. materials.

Musings of Electronic Discovery: "Ball in Your Court" April 2005 - February 2011. Craig Ball's always insightful columns in Law Technology News.

 E-Discovery: A Special Master's Perspective. 2010. Craig Ball.

Geek Speak: A Lawyer's Guide to the Language of Data Storage and Networking, Craig Ball, 2009. Written "accessibly".

 Broadening 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).

What 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.

A 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. 

 

 

 

 

 

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