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Archive for the ‘Google’ Category

Save the Date: Defensible Deletion Google + Hangout

Wednesday, June 12th, 2013

As information volumes continue to explode, the need for a strategic information governance plan has never been more important. Organizations are struggling to reduce their electronically stored information (ESI) footprint, while at the same time ensuring they are prepared to satisfy eDiscovery requests and comply with retention requirements stemming from Dodd-Frank and FINRA 10-06.

This is where Defensible Deletion comes into play. Defensible Deletion is a comprehensive approach that companies implement to reduce the storage costs and legal risks associated with the retention of electronically stored information. Organizations that establish a systematic methodology for cutting down their information clutter have been successful in avoiding court sanctions and eliminating ESI that has little or no business value.

Please join the Symantec Archiving & eDiscovery team on Wednesday, June 19 at 9:30am PT for an On Air Google+ Hangout and learn techniques for reducing risk and storage costs through the implementation of a Defensible Deletion plan for both active and archived content: http://bit.ly/17by3e6.  Also, join the conversation at #SYMChangout.

Breaking News: Court Orders Google to Produce eDiscovery Search Terms in Apple v. Samsung

Friday, May 10th, 2013

Apple obtained a narrow discovery victory yesterday in its long running legal battle against fellow technology titan Samsung. In Apple Inc. v. Samsung Electronics Co. Ltd, the court ordered non-party Google to turn over the search terms and custodians that it used to produce documents in response to an Apple subpoena.

According to the court’s order, Apple argued for the production of Google’s search terms and custodians in order “to know how Google created the universe from which it produced documents.” The court noted that Apple sought such information “to evaluate the adequacy of Google’s search, and if it finds that search wanting, it then will pursue other courses of action to obtain responsive discovery.”

Google countered that argument by defending the extent of its production and the burdens that Apple’s request would place on Google as a non-party to Apple’s dispute with Samsung. Google complained that Apple’s demands were essentially a gateway to additional discovery from Google, which would arguably be excessive given Google’s non-party status.

Sensitive to the concerns of both parties, the court struck a middle ground in its order. On the one hand, the court ordered Google to produce the search terms and custodians since that “will aid in uncovering the sufficiency of Google’s production and serves greater purposes of transparency in discovery.” But on the other hand, the court preserved Google’s right to object to any further discovery efforts by Apple: “The court notes that its order does not speak to the sufficiency of Google’s production nor to any arguments Google may make regarding undue burden in producing any further discovery.”

This latest opinion from the Apple v. Samsung series of lawsuits is noteworthy for two reasons. First, the decision is instructive regarding the eDiscovery burdens that non-parties must shoulder in litigation. While the disclosure of a non-party’s underlying search methodology (in this instance, search terms and custodians) may not be unduly burdensome, further efforts to obtain non-party documents could exceed the boundaries of reasonableness that courts have designed to protect non-parties from the vicissitudes of discovery. For as the court in this case observed, a non-party “should not be required to ‘subsidize’ litigation to which it is not a party.”

Second, the decision illustrates that the use of search terms remains a viable method for searching and producing responsive ESI. Despite the increasing popularity of predictive coding technology, it is noteworthy that neither the court nor Apple took issue with Google’s use of search terms in connection with its production process. Indeed, the intelligent use of keyword searches is still an acceptable eDiscovery approach for most courts, particularly where the parties agree on the terms. That other forms of technology assisted review, such as predictive coding, could arguably be more efficient and cost effective in identifying responsive documents does not impugn the use of keyword searches in eDiscovery. Only time will tell whether the use of keyword searches as the primary means for responding to document requests will give way to more flexible approaches that include the use of multiple technology tools.

Computers Conquer Connect Four; Predictive Coding Next?

Tuesday, July 24th, 2012

A recent Wired article detailed how an artificial intelligence (AI) system was able to watch humans play a range of games, learn the rules and then defeat their human counterparts. While this is a frightening concept for the uber-competitive gamers among us, the article suggests a number of interesting AI possibilities beyond the gaming realm.

The computer used visual recognition software while processing video clips of people playing Connect 4, Gomoku, Pawns and Breakthrough. The sessions included “games ending with wins, ties or those left unfinished — the system would recognise the board, the pieces and the different moves that lead to each outcome.” The software program then enabled the system to examine all viable outcomes and, using data gathered from all possible outcomes, calculate the most appropriate moves. The computer scientists used this game paradigm as a learning tool because it was “a natural model of many real-world interaction scenarios, making the results significant in a broader context.”

This type of true machine learning (versus training) was also demonstrated recently in an experiment conducted at Google’s X lab. The Google team created a neural network with 6,000 computer processors and turned it loose on YouTube – without any particular training. This “brain” was exposed to 10 million randomly selected YouTube videos over three days. Interestingly, “after being presented with a list of 20,000 different items, it began to recognise pictures of cats using a ‘deep learning’ algorithm.”

This “learning” occurred without the system being fed information on distinguishing features that might help identify a cat. “We never told it during the training, ‘this is a cat,’” Jeff Dean, the Google fellow who led the study said, “it basically invented the concept of a cat.”

It is possible to see how this type of inductive logic programming (ILP) could someday be used in other scenarios, particularly those in a legal, document review process. Recent articles have often pitted man versus machine in the electronic discovery context, with some fearing that the computer systems will actually take jobs from their human foes. Instead, many of the next generation predictive coding systems for eDiscovery could eventually be seen in this scenario where computers learn from their human teachers, simply by observation. In the future, instead of seeing predictive coding solutions “trained” by attorneys, the computer could eventually just watch an attorney perform document review and learn by observation.

These developments, like those that will assuredly follow, are simply an extension of ongoing AI advancements first seen in the mainstream in the Watson Jeopardy context.  It will be exciting to see how this electronic field will be increasingly applied to the legal vertical.

LTNY Wrap-Up – What Did We Learn About eDiscovery?

Friday, February 10th, 2012

Now that that dust has settled, the folks who attended LegalTech New York 2012 can try to get to the mountain of emails that accumulated during the event that was LegalTech. Fortunately, there was no ice storm this year, and for the most part, people seemed to heed my “what not to do at LTNY” list. I even found the Starbucks across the street more crowded than the one in the hotel. There was some alcohol-induced hooliganism at a vendor’s party, but most of the other social mixers seemed uniformly tame.

Part of Dan Patrick’s syndicated radio show features a “What Did We Learn Today?” segment, and that inquiry seems fitting for this year’s LegalTech.

  • First of all, the prognostications about buzzwords were spot on, with no shortage of cycles spent on predictive coding (aka Technology Assisted Review). The general session on Monday, hosted by Symantec, had close to a thousand attendees on the edge of their seats to hear Judge Peck, Maura Grossman and Ralph Losey wax eloquently about the ongoing man versus machine debate. Judge Peck uttered a number of quotable sound bites, including the quote of the day: “Keyword searching is absolutely terrible, in terms of statistical responsiveness.” Stay tuned for a longer post with more comments from the General session.
  • Ralph Losey went one step further when commenting on keyword search, stating: “It doesn’t work,… I hope it’s been discredited.” A few have commented that this lambasting may have gone too far, and I’d tend to agree.  It’s not that keyword search is horrific per se. It’s just that its efficacy is limited and the hubris of the average user, who thinks eDiscovery search is like Google search, is where the real trouble lies. It’s important to keep in mind that all these eDiscovery applications are just like tools in the practitioners’ toolbox and they need to be deployed for the right task. Otherwise, the old saw (pun intended) that “when you’re a hammer everything looks like a nail” will inevitably come true.
  • This year’s show also finally put a nail in the coffin of the human review process as the eDiscovery gold standard. That doesn’t mean that attorneys everywhere will abandon the linear review process any time soon, but hopefully it’s becoming increasingly clear that the “evil we know” isn’t very accurate (on top of being very expensive). If that deadly combination doesn’t get folks experimenting with technology assisted review, I don’t know what will.
  • Information governance was also a hot topic, only paling in comparison to Predictive Coding. A survey Symantec conducted at the show indicated that this topic is gaining momentum, but still has a ways to go in terms of action. While 73% of respondents believe an integrated information governance strategy is critical to reducing information risk, only 19% have implemented a system to help them with the problem. This gap presumably indicates a ton of upside for vendors who have a good, attainable information governance solution set.
  • The Hilton still leaves much to be desired as a host location. As they say, familiarity breeds contempt, and for those who’ve notched more than a handful of LegalTech shows, the venue can feel a bit like the movie Groundhog Day, but without Bill Murray. Speculation continues to run rampant about a move to the Javits Center, but the show would likely need to expand pretty significantly before ALM would make the move. And, if there ever was a change, people would assuredly think back with nostalgia on the good old days at the Hilton.
  • Despite the bright lights and elevator advertisement trauma, the mood seemed pretty ebullient, with tons of partnerships, product announcements and consolidation. This positive vibe was a nice change after the last two years when there was still a dark cloud looming over the industry and economy in general.
  • Finally, this year’s show also seemed to embrace social media in a way that it hadn’t done so in years past. Yes, all the social media vehicles were around in years past, but this year many of the vendors’ campaigns seemed to be much more integrated. It was funny to see even the most technically resistant lawyers log in to Twitter (for the first time) to post comments about the show as a way to win premium vendor swag. Next year, I’m sure we’ll see an even more pervasive social media influence, which is a bit ironic given the eDiscovery challenges associated with collecting and reviewing social media content.

Breaking News: Federal Circuit Denies Google’s eDiscovery Mandamus Petition

Wednesday, February 8th, 2012

The U.S. Court of Appeals for the Federal Circuit dealt Google a devastating blow Monday in connection with Oracle America’s patent and copyright infringement suit against Google involving features of Java and Android. The Federal Circuit affirmed the district court’s order that a key email was not entitled to protection under the attorney-client privilege.

Google had argued that the email was privileged under Upjohn Co. v. United States, asserting that the message reflected discussions about litigation strategy between a company engineer and in-house counsel. While acknowledging that Upjohn would protect such discussions, the court rejected that characterization of the email.  Instead, the court held that the email reflected a tactical discussion about “negotiation strategy” with Google management, not an “infringement or invalidity analysis” with Google counsel.

Getting beyond the core privilege issues, Google might have avoided this dispute had it withheld the eight earlier drafts of the email that it produced to Oracle. As we discussed in our previous post, organizations conducting privilege reviews should consider using robust, next generation eDiscovery technology such as email analytical software, that could have isolated the drafts and potentially removed them from production. Other technological capabilities, such as Near Duplicate Identification, could also have helped identify draft materials and marry them up with finals marked as privileged. As this case shows, in the fast moving era of eDiscovery, having the right technology is essential for maintaining a strategic advantage in litigation.

Lessons Learned for 2012: Spotlighting the Top eDiscovery Cases from 2011

Tuesday, January 3rd, 2012

The New Year has now dawned and with it, the certainty that 2012 will bring new developments to the world of eDiscovery.  Last month, we spotlighted some eDiscovery trends for 2012 that we feel certain will occur in the near term.  To understand how these trends will play out, it is instructive to review some of the top eDiscovery cases from 2011.  These decisions provide a roadmap of best practices that the courts promulgated last year.  They also spotlight the expectations that courts will likely have for organizations in 2012 and beyond.

Issuing a Timely and Comprehensive Litigation Hold

Case: E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. July 21, 2011)

Summary: The court issued a stiff rebuke against defendant Kolon Industries for failing to issue a timely and proper litigation hold.  That rebuke came in the form of an instruction to the jury that Kolon executives and employees destroyed key evidence after the company’s preservation duty was triggered.  The jury responded by returning a stunning $919 million verdict for DuPont.

The spoliation at issue occurred when several Kolon executives and employees deleted thousands emails and other records relevant to DuPont’s trade secret claims.  The court laid the blame for this destruction on the company’s attorneys and executives, reasoning they could have prevented the spoliation through an effective litigation hold process.  At issue were three hold notices circulated to the key players and data sources.  The notices were all deficient in some manner.  They were either too limited in their distribution, ineffective since they were prepared in English for Korean-speaking employees, or too late to prevent or otherwise ameliorate the spoliation.

The Lessons for 2012: The DuPont case underscores the importance of issuing a timely and comprehensive litigation hold notice.  As DuPont teaches, organizations should identify what key players and data sources may have relevant information.  A comprehensive notice should then be prepared to communicate the precise hold instructions in an intelligible fashion.  Finally, the hold should be circulated immediately to prevent data loss.

Organizations should also consider deploying the latest technologies to help effectuate this process.  This includes an eDiscovery platform that enables automated legal hold acknowledgements.  Such technology will allow custodians to be promptly and properly apprised of litigation and thereby retain information that might otherwise have been discarded.

Another Must-Read Case: Haraburda v. Arcelor Mittal U.S.A., Inc. (D. Ind. June 28, 2011)

Suspending Document Retention Policies

Case: Viramontes v. U.S. Bancorp (N.D. Ill. Jan. 27, 2011)

Summary: The defendant bank defeated a sanctions motion because it modified aspects of its email retention policy once it was aware litigation was reasonably foreseeable.  The bank implemented a retention policy that kept emails for 90 days, after which the emails were overwritten and destroyed.  The bank also promulgated a course of action whereby the retention policy would be promptly suspended on the occurrence of litigation or other triggering event.  This way, the bank could establish the reasonableness of its policy in litigation.  Because the bank followed that procedure in good faith, it was protected from court sanctions under the Federal Rules of Civil Procedure 37(e) “safe harbor.”

The Lesson for 2012: As Viramontes shows, an organization can be prepared for eDiscovery disputes by timely suspending aspects of its document retention policies.  By modifying retention policies when so required, an organization can develop a defensible retention procedure and be protected from court sanctions under Rule 37(e).

Coupling those procedures with archiving software will only enhance an organization’s eDiscovery preparations.  Effective archiving software will have a litigation hold mechanism, which enables an organization to suspend automated retention rules.  This will better ensure that data subject to a preservation duty is actually retained.

Another Must-Read Case: Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011)

Managing the Document Collection Process

Case: Northington v. H & M International (N.D.Ill. Jan. 12, 2011)

Summary: The court issued an adverse inference jury instruction against a company that destroyed relevant emails and other data.  The spoliation occurred in large part because legal and IT were not involved in the collection process.  For example, counsel was not actively engaged in the critical steps of preservation, identification or collection of electronically stored information (ESI).  Nor was IT brought into the picture until 15 months after the preservation duty was triggered. By that time, rank and file employees – some of whom were accused by the plaintiff of harassment – stepped into this vacuum and conducted the collection process without meaningful oversight.  Predictably, key documents were never found and the court had little choice but to promise to inform the jury that the company destroyed evidence.

The Lesson for 2012: An organization does not have to suffer the same fate as the company in the Northington case.  It can take charge of its data during litigation through cooperative governance between legal and IT.  After issuing a timely and effective litigation hold, legal should typically involve IT in the collection process.  Legal should rely on IT to help identify all data sources – servers, systems and custodians – that likely contain relevant information.  IT will also be instrumental in preserving and collecting that data for subsequent review and analysis by legal.  By working together in a top-down fashion, organizations can better ensure that their eDiscovery process is defensible and not fatally flawed.

Another Must-Read Case: Green v. Blitz U.S.A., Inc. (E.D. Tex. Mar. 1, 2011)

Using Proportionality to Dictate the Scope of Permissible Discovery

Case: DCG Systems v. Checkpoint Technologies (N.D. Ca. Nov. 2, 2011)

The court adopted the new Model Order on E-Discovery in Patent Cases recently promulgated by the U.S. Court of Appeals for the Federal Circuit.  The model order incorporates principles of proportionality to reduce the production of email in patent litigation.  In adopting the order, the court explained that email productions should be scaled back since email is infrequently introduced as evidence at trial.  As a result, email production requests will be restricted to five search terms and may only span a defined set of five custodians.  Furthermore, email discovery in DCG Systems will wait until after the parties complete discovery on the “core documentation” concerning the patent, the accused product and prior art.

The Lesson for 2012: Courts seem to be slowly moving toward a system that incorporates proportionality as the touchstone for eDiscovery.  This is occurring beyond the field of patent litigation, as evidenced by other recent cases.  Even the State of Utah has gotten in on the act, revising its version of Rule 26 to require that all discovery meet the standards of proportionality.  While there are undoubtedly deviations from this trend (e.g., Pippins v. KPMG (S.D.N.Y. Oct. 7, 2011)), the clear lesson is that discovery should comply with the cost cutting mandate of Federal Rule 1.

Another Must-Read Case: Omni Laboratories Inc. v. Eden Energy Ltd [2011] EWHC 2169 (TCC) (29 July 2011)

Leveraging eDiscovery Technologies for Search and Review

Case: Oracle America v. Google (N.D. Ca. Oct. 20, 2011)

The court ordered Google to produce an email that it previously withheld on attorney client privilege grounds.  While the email’s focus on business negotiations vitiated Google’s claim of privilege, that claim was also undermined by Google’s production of eight earlier drafts of the email.  The drafts were produced because they did not contain addressees or the heading “attorney client privilege,” which the sender later inserted into the final email draft.  Because those details were absent from the earlier drafts, Google’s “electronic scanning mechanisms did not catch those drafts before production.”

The Lesson for 2012: Organizations need to leverage next generation, robust technology to support the document production process in discovery.  Tools such as email analytical software, which can isolate drafts and offer to remove them from production, are needed to address complex production issues.  Other technological capabilities, such as Near Duplicate Identification, can also help identify draft materials and marry them up with finals that have been marked as privileged.  Last but not least, technology assisted review has the potential of enabling one lawyer to efficiently complete the work that previously took thousands of hours.  Finding the budget and doing the research to obtain the right tools for the enterprise should be a priority for organizations in 2012.

Another Must-Read Case: J-M Manufacturing v. McDermott, Will & Emery (CA Super. Jun. 2, 2011)

Conclusion

There were any number of other significant cases from 2011 that could have made this list.  We invite you to share your favorites in the comments section or contact us directly with your feedback.

For more on the cases discussed above, watch this video:

When Is A Draft Note Discoverable?

Thursday, December 1st, 2011

The legal battles during the discovery phase of the Oracle v. Google Java licensing and patent infringement complaint are now well documented. Just search for “Lindholm email” and you’ll find pages and pages of opinions and blog posts on the case. Why so much fuss over a piece of email? Well, as Judge Alsup aptly describes, this is the type of smoking gun email that has the potential to “turn the case on its head.”  More importantly, this inadvertent email never needed to happen, if the parties had better leveraged existing eDiscovery technologies.

The eDiscovery battle over admissibility of this email, as well as whether it can be a public record, is natural and to be expected, especially in such a high profile dispute. Google has already made five attempts to either claw back these documents or protect them under seal. Besides the question of whether privilege waiver is in fact granted simply by adding an “Attorney Work Product” annotation to email, which Judge Alsup has eloquently addressed in the filing here, there is another interesting question to be considered. In addition to the two email copies that had the above designation, there were nine other sequential drafts, created within a five minute period. These drafts were generated by the “auto save” capability of the email software, possibly as a way to prevent the author of the email from losing partial work. Don’t we all love that feature, since despite all the technological advances computers crash, networks fail, and software freezes, and in those times we’re thankful that our work was indeed automatically saved? However, if these are indeed present, are these drafts discoverable, especially if they have not been shared with anyone?

Although in this instance the intent of these drafts is made evident by the final email, which included the recipients, none of the nine drafts of the email have a TO:, CC: or BCC: address field filled in. So technically, the drafts in their “pre-final” form were never communicated to anyone else. If so, should they even be considered electronically stored information (ESI) that needs to be produced? Let’s say that these emails were never sent and merely existed as drafts, perhaps capturing a person’s train of thought. Are they discoverable?

Of course, determining whether such partial and non-evidentiary ESI exists among your millions and millions of documents to be examined for production becomes increasingly the purview of powerful search and analysis software. In this instance, Google and their legal team would have been well-served by email analytical software that can isolate drafts and offer them for removal from production. Also, using a capability such as Near Duplicate Identification would have identified these drafts as similar to the final ones that were marked as privileged. After all, if the legal team had known of their existence prior to production, they would not have been surprised by the opposing team producing them as key documents.

I invite your comments, especially on the notion that partially completed drafts are admissible as evidence.

ECPA, 4th Amendment, and FOIA: A Trident of Laws Collide on the 25th Birthday of the Electronic Communications Privacy Act

Wednesday, November 2nd, 2011

Google has publicly released the number of U.S. Government requests it had for email productions in the six months preceding December 31, 2009.  They have had to comply with 94% of these 4,601 requests.  Granted, many of these requests were search warrants or subpoenas, but many were not.  Now take 4,601 and multiply it by at least 3 for other social media sources for Facebook, LinkedIn, and Twitter.  The number is big – and so is the concern over how this information is being obtained.

What has becoming increasingly common (and alarming at the same time) is the way this electronically stored information (ESI) is being obtained from third party service providers by the U.S. Government. Some of these requests were actually secret court orders; it is unclear how many of the matters were criminal or civil.  Many of these service providers (Sonic, Google, Microsoft, etc.) are challenging these requests and most often losing. They are losing on two fronts:  1) they are not allowed to inform the data owner about the requests, nor the subsequent production of the emails, and 2) they are forced to actually produce the information.  For example, the U.S. Government obtained one of these secret orders to get WikiLeaks volunteer Jacob Applebaum’s email contact list of the people he has corresponded with over the past two years.  Both Google and Sonic.net were ordered to turn over information and Sonic challenged  the order and lost.  This has forced technology companies to band together to lobby Congress to require search warrants in digital investigations.

There are three primary laws operating at this pivotal intersection that affect the discovery of ESI that resides with third party service providers, and these laws are in a car wreck with no ambulance in sight.  First, there is the antiquated Federal Law, the Electronic Communications Privacy Act of 1986, over which there is much debate at present.  To put the datedness of the ECPA in perspective, it was written before the internet.  This law is the basis that allows the government to secretly obtain information from email and cell phones without a search warrant. Not having a search warrant is in direct conflict with the U.S. Constitution’s 4th Amendment protection against unreasonable searches and seizures.  In the secret order scenario, the creator of data is denied their right to know about the search and seizure (as they would if their homes were being searched, for example) as it is transpiring with the third party.

Where a secret order has been issued and emails have been obtained from a third party service provider, we see the courts treating email much differently than traditional mail and telephone lines.  However, the intent of the law was to give electronic communications the same protections that mail and phone calls have enjoyed for some time. Understandably, the law did not anticipate the advent of the technology we have today.  This is the first collision, and the reason the wheels have gone off the car, since the standard under the ECPA sets a lower bar for email than that of the former two modes of communication.  The government must only show “reasonable grounds” that the records would be “relevant and material” to an investigation, criminal or civil, compared to the other higher standard.

The third law in this collision is the Freedom of Information Act (FOIA).  While certain exceptions and allowances are made for national security and in criminal investigations, these secret orders are not able to be seen by the person whose information has been requested.  Additionally, the public wants to see these requests and these orders, especially if they have no chance of fighting them.  What remains to be seen is what our rights are under FOIA to see these orders, either as a party or a non-related individual to the investigation as a matter of public record.  U.S. Senator Patrick Leahy, (D-VT), the author of the ECPA, acknowledged in no uncertain terms that the law is “significantly outdated and outpaced by rapid changes in technology.”   He has since introduced a bill with many changes that third party service providers have lobbied for to bring the ECPA up to date. The irony of this situation is that the law was intended to provide the same protections for all modes of communication, but in fact makes it easier for the government to request information without the author even knowing.

This is one of the most important issues now facing individuals and the government in the discovery of ESI during investigations and litigation.  A third party service provider of cloud offerings is really no different than a utility company, and the same paradigm can exist as it does with the U.S. Postal Service and the telephone companies when looking to discover this information under the Fourth Amendment, where a warrant is required. The law looks to be changing to reflect this and FOIA should allow the public to access these orders.  Amendments to the Act have been introduced by Senator Leahy, and we can look forward to the common sense changes he proposes that are necessary.  The American people don’t like secrets. Lawyers, get ready to embrace the revisions into your practice by reading up on the changes as they will impact your practices significantly in the near future.

Dallas “Mini-Conference” Explores Big Electronic Discovery Issues – Future Still Blurry

Wednesday, September 14th, 2011

We’ve all heard the phrase that “everything is bigger in Texas” and the little “mini-conference” held in Dallas, TX last Friday was no exception.  The Discovery Subcommittee held a small, one-day conference to tackle some big issues related to preservation and sanctions that could ultimately lead to amendments to the Federal Rules of Civil Procedure (Rules).

The Subcommittee’s primary purpose was to discuss “preservation and sanctions issues” by using the following topics as guidelines:

  • The nature and scope of the current “problem”
  • The role of technology
  • Possible solutions to the problem

Counsel from large companies like Google, General Electric, and Exxon Mobil participated side by side with outside counsel from both plaintiffs’ and defense bar to discuss what some characterized as a lack of clear direction in the current Rules.  Government lawyers, academics, and federal judges including Judges David Campbell (D. Az.), Shira Scheindlin (S.D.N.Y.), Paul Grimm (D. Md.), John Facciola (D.D.C.), Lee Rosenthal (S.D. Tx.), Michael Mosman (D. Ore.), and Nan Nolan (N. D. Ill.) helped round out the field to make for a lively discussion with multiple perspectives represented.  The following summary highlights some of the key viewpoints and areas of contention debated throughout the day.[1]

The nature and scope of the problem

An underlying theme throughout the day was whether or not preservation and sanctions challenges warrant amending the Rules.  Not surprisingly, counsel for large organizations that commonly bear the brunt of large and frequent document requests lobbied for rule amendments that provide more certainty around when the duty to preserve evidence is triggered, the scope of that duty, and how sanctions are applied.

In support of this position, some corporate attorneys argued that the lack of certainty in the current Rules unfairly requires organizations to err on the side of preserving evidence early and broadly to avoid the risk of sanctions.  Since preserving evidence can be extremely expensive and the duty may be triggered before litigation even begins, they argue that changes to the Rules are necessary.  One corporate attorney framed the issue by providing specific details about costs associated with preserving data for different cases.  He explained that in one situation, his organization has spent more than $5 million to locate, collect, preserve, and maintain data for an ongoing matter even though a complaint has never been filed.  He went on to explain the dilemma by stating: “not preserving asks us to take a chance with our reputation.”

In response, a few attendees questioned how preservation related expenses could spiral so high even before attorney review.  Others pointed out that if the current Rules were better utilized, specifically the meet-and-confer provisions of Rule 26(f), then many preservation challenges could be minimized.  Supporters of better Rule 26(f) engagement complained that counsel for large organizations often refuse to discuss preservation related issues and thereby fuel problems related to the scope of preservation themselves.   Others suggested that if organizations enforced better information management policies instead of keeping “everything forever”, then the magnitude of the problem could be reduced.

Technology

The Subcommittee members generally agreed that the evolution of technology has led to massive data growth which creates new electronic data challenges.  Electronically stored information (ESI) is often duplicative, typically resides in many different technology systems, and can be difficult to locate on a case by case basis.  There was some thoughtful discussion about how data archiving and cloud computing technology are important tools for helping organizations manage these information problems more effectively.  Another commentator acknowledged that although “predictive coding” may be helpful for “reviewing” data, it requires significant human involvement and simply does not solve the problem at hand.

Surprisingly, aside from the comments above, the technology discussion focused mainly on the issue of what constitutes “possession, custody or control” under Rule 34 in today’s environment of social media, cloud computing, and mobile devices.  Unfortunately, there was no discussion of either the role legal technology solutions play in minimizing risk and cost or of the impact the current Rules have on public policy.  For example, the Subcommittee did not address whether organizations that invest in technology in order to automate their internal data management and electronic discovery process should be afforded more protection under Rule 26(b)(2)(B) (“not reasonably accessible because of undue burden or cost”) than organizations that choose not to invest in technology.  If an organization’s technology investment (or lack thereof) is not a factor, does Rule 26(b)(2)(B) have the unintended effect of stifling meaningful legal technology investment by some organizations?  Similarly, do advancements in legal technology diminish the need for a Rule amendment that, at its core, is geared toward reducing costs?  In my opinion, the manner in which organizations are using technology today is an important factor that warrants deeper discussion and a subject I intend to address in a future publication soon.  Stay tuned.

Possible solutions

Discussion about possible solutions to the problem revealed more about the contrasting viewpoints in the room.  Notably, the Department of Justice representatives and those typically aligned with the plaintiffs’ bar tended to lobby for better adherence to the framework contained in the existing Rules in lieu of drafting new Rules.  These folks generally appeared to fall into the “No New Rule” or “Not Yet” camp, and cited the relative newness of the 2006 Rule Amendments and the fact that only about one percent of federal cases involve sanctions in support of their position that Rule amendments are premature or not needed.  Along the same lines, many called for further study and evaluation of the issues through organizations such as The Sedona Conference and the 7th Circuit Electronic Discovery Pilot Program.  Others referenced the importance of looking to evolving case law for more guidance before moving forward with Rule amendments.

In stark contrast, those on the other side of the aisle that typically represent large organizations, lobbied for bright line rules or at least “guideposts” to provide more certainty regarding preservation.  For example, one participant suggested that the duty to preserve evidence should begin when a complaint is served.  Another suggested that the duty should be triggered when a potential litigant is “reasonably certain to be a party to litigation” – a standard that is arguably narrower than the commonly applied “reasonably anticipates litigation” standard articulated in Judge Scheindlin’s frequently cited Zubulake v. UBS Warburg line of decisions.

Those calling for more certainty regarding triggering events also provided recommendations for addressing the scope of the preservation duty and the application of sanctions.  A suggestion to incorporate language that presumptively limits the number of custodians (10) and documents (by age) met resistance on the grounds that trying to apply a one-size-fits-all rule fails to acknowledge that the facts and circumstances of every case are different and so too are the litigants.  Similarly, recommendations to limit sanctions for evidence spoliation to situations where a litigant’s conduct is “intentional” or “willful” were met with a chilly reception by those favoring better adherence to the current Rules.

Conclusion

Time did not permit comprehensive discussion and analysis of every perspective, but the mini-conference highlighted the complexity surrounding preservation and sanctions issues and revealed some polarized viewpoints about how to solve those issues.  Perhaps one glimmer of consensus was the acknowledgement that “pre-litigation” obligations to preserve evidence before service of a complaint is often challenging for large organizations.  However, whether this and other issues should be addressed through better education, more stringent enforcement of existing rules, or by modifying the existing rules to include more “guideposts” remains unsettled.

What do you think?  Please respond to the poll, above right, to let us know whether you think amending the Federal Rules of Civil Procedure (FRCP) is necessary to address some of the preservation and sanctions issues discussed above.

To join the conversation and receive automatic updates when new information is posted to this blog, please subscribe to e-discovery 2.0.


[1] A more exhaustive list of participants and sample questions was incorporated into the Federal Rules Advisory Committee’s June 29, 2011 memorandum announcing the mini-conference.  Similarly, the events leading up to the mini-conference are described in more detail as part of my previous postings on the same subject.

Google Moves E-Discovery To The Cloud

Monday, May 19th, 2008

g-discovery2.jpgThere is no bigger idea in enterprise technology than the idea of “cloud computing“. What does it mean? Simply put, the idea is that enterprises will cease to buy hardware, e discovery software, and all the headaches that come with them. Instead, companies will rent whatever applications they need and access them over the internet. Software vendors will keep their applications on a pool of shared infrastructure (the “cloud”), which will automatically allocate resources between applications according to demand. Using a common analogy, we will move from today’s world where companies are buying and building their own electricity generators, to a world where there are power companies distributing electricity over a grid.

To get a sense for how this might happen, just take a look at the CRM market. Ten years ago, Siebel and other packaged software vendors were among the fastest growing companies in America. Today, they are shrinking as customers migrate en masse to, for example, salesforce.com’s cloud-based approach. One Wall Street analyst I spoke to last week forecast that hosted (i.e., cloud-based) applications will grow their market share from 12% to 21% by 2011, and account for all growth in the market.

E-discovery is no exception to this mega-trend, and I expect a portion of the litigation software business to move to the cloud. How quickly this happens depends on how easy it is for companies to adopt cloud-based e-discovery solutions, which is why Google’s recent moves into e-discovery are so significant.

Google is by far the largest cloud computing company in the world. Its cloud-based Google Apps suite of applications was only launched in 2007, but is already being used by several hundred thousand businesses and, Google tells me, 2,000 new businesses sign up every day. Today, the customers are mainly small to medium sized businesses (500-5,000 employees). But as its functionality improves, larger companies will increasingly start asking why they should pay for Microsoft Office when cheaper alternatives exist.

Talking to Bill Kee, a product marketing manager at Google, it’s clear the biggest gap in Google Apps’ functionality was the lack of enterprise features around security, compliance, and e-discovery. That’s why Google acquired Postini, a leader in messaging security. It’s why Google recently launched Message Discovery, a hosted archive that comes bundled into Google Apps Premier Edition. And it’s why Google is collaborating with Clearwell to educate the market on cloud-based e-discovery solutions.

If you are interested in learning more about “e-discovery in the cloud”, register for a free webinar which we are hosting with Google on June 3.

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