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eDiscoveryDaily

eDiscovery Law: Texas Rule 196.4 Protects Parties from "Undue Burden or Cost"
 

A recent article published in Texas Lawyer and reprinted on Law.com raises the question of extensive and costly eDiscovery requests and how to handle them. The authors of Keep E-Discovery Costs from Torpedoing Litigation Budgets present a hypothetical scenario where the opposing counsel has requested production of 10 years of legacy electronic data – a prospect that could cost more in recovery expenses than the value of the entire lawsuit. What is the best approach for counsel to take under the circumstances and what kind of legal recourse is there if producing extensive amounts of electronic information doesn't make sense?

Meet Texas Rule 196.4

The answer – in the state of Texas, at least – is found in Texas Rule of Civil Procedure 196.4. Like Federal Rule of Civil Procedure 26(b)(2), Rule 196.4 states that parties must comply with "reasonable" production requests, but are not forced to produce electronic information for discovery if it cannot be retrieved "through reasonable efforts."  So, when it comes to unduly burdensome discovery requests, don’t mess with Texas!

Rule 196.4 also includes a provision that makes it possible to shift the cost of extensive discovery production to the requesting party. However, an attorney's ability to make a case for challenging a production request or shifting the cost of such production depends on thorough knowledge of the client's information systems. It's paramount to know the details of the client's data storage, backup systems, old and new equipment in order to make an objection on grounds of either Texas or Federal law.

Rule 196.4 Still Being Clarified

Courts are still ruling on how and when this rule applies, so it remains a useful recourse but not a foolproof procedure for issues surrounding extensive (and expensive) production. Therefore, courts have used Federal Rule 26(b)(2) and federal case law to help apply an understanding of what’s reasonably accessible.  In In Re Weekley Homes, LP (2009), the Texas Supreme Court addressed when a trial court may order production of information that is not reasonably available, but instructed trial courts to consider "the reasonable availability of information on a case-by-case basis" which leaves the implementation of these rules open-ended for the moment.

The Texas Lawyer article references other important cases, including the landmark Zubulake v. UBS Warburg LLC (2003) opinion (Zubulake I) which famously adopted a classification system of five categories of media on which electronic data is commonly stored, from most accessible to least, as follows:

  1. Active, online data, such as hard drives;
  2. Near-line data, such as an older robotic storage devices like optical disks;
  3. Offline storage/archives, such as removable media that can be labeled and stored on a shelf like CDs and floppy disks;
  4. Backup tapes, which are sequential access devices not intended for recovery of individual files; and
  5. Erased, fragmented or damaged data.

Understanding these five categories of media and their accessibility is a must for anyone to be prepared to respond to discovery requests, especially like the one posed hypothetically at the beginning of the article.

So, what do you think? Have you ever been hit with a production request with a scope that would have raised eDiscovery costs beyond the value of the suit itself? If so, what did you do? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Changes in Store for The Sedona Conference
 

One of the most influential organizations in eDiscovery is The Sedona Conference® (TSC), a Arizona-based non-profit, non-partisan law and policy think tank that has made numerous contributions to the industry since it was founded in 1997.  Some of the most recent contributions have been documented in this blog, including a commentary on proportionality released last year and database principles released earlier this year.

A couple of weeks ago, TSC announced that its Board of Directors “has adopted a new collaborative management structure designed to align the organization’s administration with its historical mission of dialogue and consensus building” and said that founder and former executive director Richard Braman is now its full-time chairman.  There will now be four Director-level positions, as follows:

  • Business Operations: Dustin McKissen is the new director of business operations, and previously was deputy CEO of the National Association for Information Destruction,
  • Conferences and Content: Howard Bergman joins as director of conferences and content, but will continue serving as counsel in residence at the University of Minnesota Law School,
  • Judicial Outreach: John Rabieg, previously appointed as executive director on Jan. 31, will move to become director of judicial outreach,
  • Judicial Education: Kenneth Withers, a member of Sedona since 2006 as director of judicial education and content, will narrow his focus to just the education component.

These four Director-level positions will now manage the affairs of TSC in a collaborative manner, reporting to an Executive Committee of the Board of Directors.  They will be formally announced at a Sept. 24 dinner in Washington, D.C.

As noted on their press release of August 29: “’The Sedona Conference’s success, right from the very start, has been based on creating intellectually stimulating and thought-provoking dialogue and content through collaboration by judges, lawyers, experts and academics,’ said Craig Weinlein, a member of The Sedona Conference® Board of Directors and a partner at Carrington Coleman Sloman & Blumenthal in Dallas. ‘Because of our growth in staff, activities, and influence, now are the right time to bring that dialogue-based, consensus building process to our business operations, in order to best maintain the quality of The Sedona Conference’s unique and highly successful efforts.’”

TSC now has nine Working Groups and presents ten to twelve conferences each year, focusing on “tipping point” issues in the areas of complex litigation, antitrust and intellectual property rights.  It will be interesting to see what impact the new management structure will have on the activities of the group.

So, what do you think?  Do you think this is a good move for TSC?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: To Get the Latest Trends, Go Virtual
 

Many of you have likely attended at least one LegalTech trade show at some point.  LegalTech New York (LTNY) happens every year in the late January/early February time frame and there is also a LegalTech West Coast (LTWC) show later in the year (this year it was in mid-May).  LTNY and LTWC usually have several good sessions, as well as the latest product and service offerings from exhibitors.  But, what if you can’t make it to one of these shows?

For those who can’t travel, but still wish to stay up to date on the latest trends, American Lawyer Media (ALM) has begun offering Virtual LegalTech (VLT) sessions quarterly.  This is the second full year that these sessions have been available and the sessions for this quarter are being held tomorrow (many of which are CLE eligible, at least in certain jurisdictions).  These online sessions are free to attend – you simply have to provide information to obtain a login ID and password.

VLT is set up just like an actual trade show.  There’s a “campus” with two exhibit halls, a CLE Center auditorium, a lounge and a resource room.  Copies of slides for presentations are usually available a short time after the presentation is conducted in the resource room.  You can even check out vendor “booths” in the virtual exhibit halls!

For tomorrow’s “show”, there are several sessions related to eDiscovery concepts, including:

9:00 am – 10:00 am ET:

Recover Costs, Improve Profits & Reduce Risk: Cost Recovery for eDiscovery Content

Description: Law firms, like all businesses, are constantly looking for ways to reduce costs and improve profits. Traditional cost recovery focuses on tracking, managing and assigning costs associated with activities such as scanning, faxing, printing, and e-mailing. To make documents eDiscoverable at point of capture, documents should be tagged with metadata such as filename, matter, client and billing code information; easing the burden on staff and lawyers, so more time can be spent strategizing the case and less time at the device handling administrative tasks. This session will explore various practices for integrating eDiscovery into traditional cost recovery tactics. Industry experts will also discuss tips and tricks to help profits soar while also reducing risk of data loss.

Speakers are: Chris Wyszkowski – Nuance Communications; Thomas Goldman, JD – Author of Technology in the Law Office, Second Edition

11:00 am – 12:00 pm ET:

Attack of the Clouds: Virtual Privacy & Online Security

Description: Look at cloud computing through the lens of eDiscovery and its easy to become confused as to whether the cloud is a great equalizer; allowing firms of all sizes to spend less time and money on the mechanics of eDiscovery, or the refuge of the naïve for whom its only a matter of time until their miracle solution falls flat. The cloud offers great cost savings and convenience to law practitioners, but there are very real concerns about cloud privacy and security.

Our expert panel will share a unique legal and technical perspective on privacy and security in the cloud, looking at case law regarding the liability of cloud providers and how it impacts the health of the cloud industry. This informative discussion will span legal and cybersecurity issues with the cloud, giving you a clear view of the risks and rewards involved with this exciting new technology.

Speakers are: Caitlyn Murphy, Esq. – Senior Product Manager, AccessData Group; Joshua Gilliland – Attorney and Author of the Bow Tie Law Blog; Jeffrey Dye – CISSP, Network Defense and Digital Forensics, General Dynamics

12:00 pm – 1:00 pm ET:

Unbundling Litigation: Selecting and Using E-Discovery Counsel

Description: There was a time when corporations expected litigation counsel to handle all aspects of litigation, including discovery.  However, as e-discovery becomes more complex and mistakes are increasingly common, there is a trend toward unbundling litigation and selecting a separate e-discovery counsel.  E-discovery counsel is often a separate law firm that specializes in e-discovery issues and can do the work better, faster and cheaper than general litigation lawyers.  This panel will discuss the pros and cons of using e-discovery counsel in complex litigation.  We will also discuss best practices for selecting and integrating e-discovery counsel into the litigation process.

Speakers are: Chris Dale – Moderator and Author of the eDisclosure Information Project (UK); Darryl Shetterly – Partner, LeClair Ryan, LLC; William Belt – Partner and Team Leader, Discovery Solutions Practice, LeClair Ryan LLC; Heather Bryden – Assistant General Counsel. e-Discovery Manager, Capitol One Bank

2:00 pm – 3:00 pm ET:

Information Security – A Systematic Approach to Protecting Your Organization’s Data During the eDiscovery Process

Description: Information security is a high priority concern for both corporations and law firms in the eDiscovery process. The challenge is translating this concern into practice. Failing to take special care to ensure security can expose your company or client’s most critical information and breaches the ethical standards of  client-lawyer confidentiality. A centrally managed, systematic approach based upon a formal management system is the best way to ensure the highest level of information security.

In this session, we will offer an overview of approaches that will allow lawyers to ethically meet their  professional obligations related to information security best practices, standards and processes, such as:

  • Why a process driven approach to information security is needed?
  • Who should be responsible for information security in the eDiscovery process?
  • What are the hallmarks of good information security?
  • How to evaluate information security practices in your eDiscovery partner or vendor?

Speakers are: Doug Stewart – EnCE, Director of Technology, Daegis; Andy Teichholz, Esq. – Senior eDiscovery Consultant, Daegis; Mark Michels – Former eDiscovery and Litigation Counsel, Cisco; Aaron Crews – eDiscovery Counsel, Littler Mendelson

3:00 pm – 4:00 pm ET:

Judge's Panel: Leveraging Technology to Reduce the Challenges of Discovery

Description: What are the most important facts that will allow you to leverage the technology created to assist attorneys with litigation and discovery? This group of distinguished judges will spotlight decisive concerns, Federal Rules of Civil Procedure reform and what can be done to alleviate the responsibility and obligation that is essential to compliant discovery practice. The most technologically advanced methods to effectively approach the planning and managing of litigation preparation to meet key requirements will be discussed. This session is a “must attend” for those interested is lessening the burden of discovery.

Speakers are: Hon. Frank Maas – Magistrate Judge, Southern District of New York; Hon. Patty Shwartz – Magistrate Judge, District of Newark, NJ and Adjunct Professor of Law, Fordham University Law School; Hon. Ron Hedges – Former Magistrate Judge

4:00 pm – 5:00 pm ET:

Cross-Border Discovery and Investigations – Developing a Strategic Response Plan

Description: Companies operating in the global economy face increasing scrutiny from regulators in the US and Europe, with enhanced risk of related cross-border litigation and discovery. Join Howard Sklar, Senior Counsel of Recommind and Denise Backhouse, Associate, eData Practice, Morgan Lewis, as they address the data management issues in developing a strategic, cost-effective plan for responding to international discovery and investigations:

  • Data protection issues in European/US investigations and discovery:  the legal framework and recent developments
  • Preparing for investigations and discovery: creating a response plan; establishing a team; effective communication and privilege protection
  • Best practices for handling data in international matters

Speakers are: Denise E. Backhouse – Associate, eData Practice Morgan Lewis; Howard Sklar – Senior Counsel Recommind, Inc.

To “attend” any of these sessions or learn more about Virtual Legal Tech, go to Virtual Legal Tech Show.

So, what do you think?  Do you attend virtual seminars?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Are Attachments Part of the Email Or Are They Separate?

A Special Master recently investigated the legal standard concerning whether or not attachments must be produced with the emails to which they were attached in discovery proceedings, and determined that there is no certain answer to be found in case law precedent.

In Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Vic. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011), the defendants argued that SEI Investments (“SEI”) was at fault for neglecting to produce certain attachments to emails as part of discovery, and that SEI was obligated to produce these attachments and explain their absence. This request ultimately delved into issues of precedent and legal standard:

  • SEI stated that it had already produced the documents that were relevant and were not protected by privilege, and argued that it was not obligated to produce the attachments in question because they were non-responsive to discovery.
  • A Special Master was convened to consider the issue and to establish the legal standard for this type of discovery question.
  • The Special Master found a number of conflicting examples: In some cases, the obligation to produce attachments with the relevant emails was implied, but most of these instances assumed that attachments were required to be produced and focused solely on the format of production. In a number of cases, producing attachments with their emails has been the norm; however, in other cases, emails and attachments were treated as separate in terms of privilege determination.
  • The Special Master concluded that “conceptually” the two could be viewed separately, or they could be seen as a single unit for the purpose of discovery, and advised that the decision should generally be made by the parties involved in advance, during pretrial discovery talks.
  • In this case, the Special Master questioned SEI’s argument for not producing the attachments in question, and at the same time, argued against the probably unnecessary expense of forcing SEI to produce all attachments to all emails previously included in discovery.
  • Therefore, the Special Master made a series of recommendations that were adopted by District Court Judge Shira Scheindlin. These included: a) Production of the non-privileged attachments to the 126 emails previously identified by the defendants, as well as a complete list of any such documents that it proves unable to produce; b) permission for the defendants to request further such attachments as deemed relevant and necessary to this case; and, c) a meeting between all parties to discuss this issue and reach an agreement on policy regarding the production or withholding of email attachments and their format.

So, what do you think? Do you believe that email attachments should generally be produced as a matter of course with the emails to which they were attached, or that they should be considered as separate documents for the purpose of discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

A Marriage Made for eDiscovery: EDRM and ARMA
 

EDRM has been busy lately, with a new Model Code of Conduct drafted recently and now this announcement.

As discussed in our recent two–part series on eDiscovery standards, there is a growing movement to develop industry standards, frameworks, or reference models to help manage eDiscovery. This week, there was perhaps a major move in that direction as the Electronic Discovery Reference Model (EDRM) and ARMA International announced that they would be collaborating on information governance guidelines for eDiscovery.  

According to EDRM, the partnership began at LegalTech in New York back in February when ARMA reached out to suggest working together. The plan is still vague, but together these two groups hope to provide a framework for records management in the eDiscovery context. “I don’t know where this partnership will take us, but it’s just silly that two groups with similar goals and ideals would work in isolation,” says George Socha, an eDiscovery consultant and one of the co-founders and co-managers of EDRM.

Two years ago, EDRM started its Information Governance Reference Model, providing a conceptual framework for information governance. Today, the Information Governance Reference Model is primarily a rough guide for developing information management programs. But EDRM, which is a relatively small volunteer effort, hopes that the weight of ARMA, which boasts 11,000 members, will help flesh out the framework.

By contrast, the Association for Information Management Professionals (ARMA) International is an established and relatively large and influential group claiming 11,000 members in 30 countries. ARMA international has developed its Generally Accepted Record-keeping Principles, or GARP, framework to provide best practices for information management. The framework is designed generally for records-keeping management, but has been designed to account for the demands of eDiscovery. Though ARMA’s core constituency is records managers, the demands of litigation have been driving many of the group’s recent initiatives. 

Interestingly, as we’ve noted previously, ARMA has previously described the EDRM effort as falling “short of describing standards or best practices that can be applied to the complex issues surrounding the creation, management, and governance of electronic information.” However, the organization clearly believes EDRM’s network of experienced litigators and IT professionals will help it address the demands of eDiscovery.

If broad industry standards efforts are going to be developed, it will take more such efforts like this that cut across industries and bring expertise from different areas into alignment. Socha believes that though the EDRM and ARMA have traditionally served different groups, they have both realized that they are concerned with many of the same problems.  “A lot of the root causes of eDiscovery issues come from a failure to have your electronic house in order,” says Socha. “What the Information Governance Reference Model and GARP are about is addressing that issue.”

So, what do you think? Does the EDRM need ARMA? Or vice versa? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Case Law: Defendant Ordered to Re-Post Infringing Photograph to Facebook Profile

A New Jersey court ordered the defendant to re-post a photograph displaying infringing trade dress to his Facebook profile for a brief period of time to allow the plaintiff to print copies, in a case involving trademark infringement.

In Katiroll Co., Inc. v. Kati Roll & Platters, Inc., No. 10-3620 (GEB), 2011 WL 3583408 (D.N.J. Aug. 3, 2011), the plaintiff argued for sanctions after the defendant pulled down infringing materials from his Facebook page and altered his Facebook profile photo, removing a profile picture that included the distinctive trade dress at issue in this case. The court ultimately decided against sanctions, but did order the defendant to re-post the photo in question, as follows.

  • The court first set out to establish whether or not the defendant’s actions could be considered as spoliation, citing the standard of review for the four criteria in spoliation. The four criteria include the party’s control over the evidence, apparent suppression or withholding of evidence, relevance of the destroyed evidence, and that it be “reasonably foreseeable” that the evidence would be required for discovery at a current or later date.
  • The altered profile photograph was deemed by the court to be relevant, and under the control of the defendant. However, whether that evidence was suppressed or withheld, and whether it was foreseeable that it would be required as part of discovery, remained at issue.
  • The plaintiff argued that the defendant should be sanctioned for failing “to preserve his Facebook pages in their original state” and “wanted PDFs of these pages prior to their being taken down”, but the court maintained that because these infringing pages had been removed at the plaintiff’s earlier request, it “would be unjust” to sanction the defendant for those actions.
  • The court also noted that Facebook profile photos are changed as often as weekly by those who use the site regularly, and that the defendant could not have known that changing his photo would have been an issue. “It would not have been immediately clear that changing his profile picture would undermine discoverable evidence,” the court maintained.
  • As result, the court declined to order sanctions against the defendant. Instead, the defendant was ordered to re-post the Facebook profile photo in question “for a brief time,” including the trade dress at issue (as they “ha[d] not been destroyed” and were “attached in several PDFs” to the court), so that the plaintiff might print whatever photos and Facebook pages it wishes. Afterward, the defendant was told to replace the photo again with a non-infringing image.

So, what do you think? Was the court’s decision fair, or should the defendant have been sanctioned for spoliation? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Social Media Lessons Learned Through Football
 

The NFL Football season begins tonight with the kick-off game pitting the last two Super Bowl winners – the New Orleans Saints and the Green Bay Packers – against each other to start the season.

An incident associated with my team – the Houston Texans – recently illustrated the issues associated with employees’ use of social media sites, which are being faced by every organization these days and can have eDiscovery impact as social media content has been ruled discoverable in many cases across the country.

Last year’s NFL rushing leader, Arian Foster, recently “tweeted” a picture of the MRI image showing his injured hamstring to all of his followers on Twitter. The “tweet” provided an explanation of where his hamstring was specifically damaged.

The problem is that NFL teams guard specific injury information regarding their players as if they were trade secrets and in a sport where sidelining your opponents’ best players is a competitive advantage, telling those opponents where your injury is located is not a wise move (what was he thinking?).  Also, there are strict guidelines within the NFL regarding the disclosure of injury information because (big surprise!) it can impact betting on the games.

Foster, who subsequently “tweeted” that he was just joking around, provided yet the latest reminder that former congressman Anthony Weiner and many others have provided before: think before you hit send.

But, as bad as the consequences can be to individuals who post content on social media sites unwisely, it can be just as bad (or worse) for organizations that employ those individuals.

Postings on social media sites by employees can range from simply embarrassing for an organization from a public relations standpoint to downright damaging to the organization in the form of disclosure of confidential information.  The risk is clear.  Yet, in the socially technological world in which we live today, it is impractical for organizations to “ban” use of social media sites by their employees.  It’s going to happen and companies have to be prepared to address it.

The best way to address it is to implement a sound social governance policy that provides guidelines for acceptable and unacceptable behavior on social media sites and the consequences for the unacceptable behavior.  Implementation includes education with training examples that clarify any ambiguities.  This blog post from last year illustrates factors to address in a good social governance policy.  Hopefully, someone from the Texans is explaining these concepts to Arian Foster.

So, what do you think? Does your organization have a social governance policy?  Does it train employees on the use of that policy? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: When you DE-NIST, A Lot May Be Missed
 

eDiscovery Daily has referenced several articles in the past by Craig Ball, including this one and this one, and also conducted a thought leader interview with him at LegalTech New York earlier this year.  Craig regularly has great observations about eDiscovery trends that are not talked about in other forums, so I try to “keep tabs” on his articles and provide some of those useful insights to this blog.

Last week on his blog, “Ball in your court”, Craig discussed shortcomings associated with “DE-NISTing”, which is the process of removing files from review that are standard components of the computer’s operating system and off-the-shelf software applications such as Microsoft Office applications.  There’s no need to review these files as they are considered system files and would not generally contain work product of the user.  These files are identified by their known HASH values that uniquely identify their content and matched against a list maintained by the National Software Reference Library, a branch of the National Institute for Standards and Technology (NIST – hence the term “DE-NISTing” to reference removing these files from the review set).

While the NIST list is updated four times per year, Craig was noting that a number of these system files were not being removed during the “DE-NISTing” process on workstations using Windows 7 and the latest release of Microsoft Office.  So, Craig ran a test by performing a “pristine install” of Windows 7 on a “sterile” hard drive, which consisted of 47,690 files.  Of those, only 7,277 were removed during “DE-NISTing”, meaning that 85% of the files were not removed during this process and could be left in the review set if not removed via any other means.

Why were so many files missed?  Evidently, the NIST list does not yet include Windows 7 files, despite the fact that there are more than 350 million workstations that run Windows 7.  It also doesn’t include Microsoft Office 2010 files yet either.  So, the NIST list is not as up to date as it could be.

As a result, several service providers supplement the NIST list with other files, but as Craig notes, it’s important to be able to trace and defend the supplemented list if required and not try to pass it off as the official NIST list (which Craig likens to selling a “Prada knockoff”).

Supplementing the NIST list by removing system files such as EXE and DLL files is a clearly documentable method to reduce the number of files in the review set.  This method doesn’t depend on HASH values and, assuming that these file types are not responsive (which is usually the case) can be an effective method for eliminating files to review.

So, what do you think? Do you depend on the NIST list to remove files from review sets?  Do you use any supplemental methods for further reducing these sets?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Your Chance to Comment on Code of Conduct for eDiscovery
 

The Electronic Discovery Reference Model (EDRM) has made numerous contributions to the eDiscovery industry since it was founded in 2005, with the EDRM diagram (above) having become a universally accepted standard to reflect the eDiscovery life cycle.

The latest contribution is a first draft of the EDRM Model Code of Conduct (MCoC), which focuses on the ethical duties of service providers associated with these five key principles and also provides a corollary for each principle to illustrate ethical duties of their clients:

  • Professionalism: Service Providers should perform their work in a competent, accurate, timely and cost-effective manner, adhering to the highest standards of professionalism and ethical conduct. Clients should be forthright, accurate and timely in their dealings with Service Providers and act at all times in accordance with the highest professional standards of ethical conduct.
  • Engagement: Service Providers should collaborate with Clients to establish and memorialize the terms of their relationship including any reasonably foreseeable parameters as early as possible upon the initiation of any new engagement. Clients should provide sufficiently detailed information about the subject matter, the parties involved in the litigation and any material issues or variables that would assist the Service Provider in accurately defining the engagement.
  • Conflicts of Interest: Service Providers should employ reasonable proactive measures to identify potential conflicts of interest, as defined and discussed below. In the event that an actual or potential conflict of interest is identified, Service Providers should disclose any such conflict and take immediate steps to resolve it in accordance with the Guidelines set forth below.  Clients should furnish Service Providers with sufficient information at the commencement of each engagement to enable each Service Provider to identify potential conflicts of interest. If an actual or potential conflict of interest is identified and disclosed and the Client elects to proceed with the engagement, the Client should work in good faith with the Service Provider and other parties to facilitate a resolution to any such conflict in accordance with the Guidelines set forth below.
  • Sound Process: Service Providers should define, implement and audit documented sound processes that are designed to preserve legal defensibility. Clients should cooperate with Service Providers to ensure that auditable, documented sound processes, appropriate for each engagement, are defined and implemented by all concerned parties to preserve legal defensibility.
  • Security and Confidentiality: Service Providers should establish and implement procedures to secure and maintain confidentiality of all Client ESI, communications and other information. Clients should work with Service Providers to ensure that reasonable measures, appropriate for each engagement, are established and implemented by all concerned parties to secure and maintain confidentiality of all ESI, communications and other information.

Each section then provides detailed guidelines and a discussion section to provide more detailed guidance and recommendations.  The MCoC also provides a detailed introduction to illustrate the need for guidance in ethical decision making, as well as the scope of the guidelines.

Now is your chance to provide feedback!  This initial draft of the MCoC is open to all for public comment through September 30, 2011.  You may post comments at http://www.edrm.net/004 or email comments to mail@edrm.net to provide feedback to the team.

The EDRM MCoC team will review all feedback at the EDRM Mid-Year meeting, in October and will publish the first version of the MCoC will be published in January 2012, prior to the LegalTech NY conference.  These guidelines are a much needed statement on the ethical duties of participants in eDiscovery activities and the efforts of the MCoC team are truly commendable!

So, what do you think? Do you believe that these guidelines are a major step in the right direction?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: NY Times Says US Government Has Its Head in the Clouds
 

No, this isn’t a post bashing our government – you can find plenty of articles on the web for that!  😉

As noted a few months ago, Forrester and Gartner have predicted big growth for the cloud computing industry, with Forrester predicting nearly a six-fold growth in nine years.  Many organizations are finding that cloud computing solutions, including Software-as-a-Service (SaaS) solutions for using applications over the web, are saving those organizations significant costs over the costs of having to provide their own software, hardware and infrastructure.  In eDiscovery, these SaaS solutions support every phase of the EDRM life cycle, from Identification to Presentation.

Earlier this week, the New York Times published an article entitled Tight Budget? Look to the ‘Cloud’, written by Vivek Kundra, the Obama administration’s chief information officer from 2009 until earlier this month.  Mr. Kundra noted that there were “vast inefficiencies” in the $80 billion federal IT budget when he took office, and that the Defense Department spent $850 million over ten years on one personnel system alone.

In response, Kundra and his staff instituted a “Cloud First” policy, which advocates the adoption of cloud computing solutions by government agencies.  It even went as far as to mandate the transition of at least three projects for every agency to the cloud by next summer.  As a result, some agencies, such as the General Services Administration, have embraced cloud computing and cut IT costs on some systems by over 50 percent.

Some agencies, like the State Department, have balked at the transition to the cloud, citing security concerns.  However, Kundra notes that “cloud computing is often far more secure than traditional computing, because companies…can attract and retain cyber-security personnel of a higher quality than many governmental agencies”.  Here is an example of the security associated with cloud based solutions, using the facility used by CloudNineDiscovery (formerly Trial Solutions).  As you will see, there are numerous mechanisms to secure sensitive client data.

Kundra notes that a shift to cloud-based services in health care alone to achieve a 1 percent productivity increase over ten years would result in a $300 billion savings.  Noting significant growth in cloud computing in Japan and India, he advocates the creation of a global Cloud First policy to enable nations to determine how the flow of information internationally should be handled, leading to global efficiencies.

So, what do you think? Do you use any cloud based solutions in managing your discovery needs?  Please share any comments you might have or if you'd like to know more about a particular topic.

Full disclosure: I work for CloudNine Discovery (formerly Trial Solutions), which provides SaaS-based eDiscovery review applications FirstPass® (for first pass review) and OnDemand® (for linear review and production).  Our clients’ data is hosted in a secured Tier 4 Data Center in Houston, Texas.

Have a Happy Labor Day!