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Heat Wave or Cool Front? Results of the Summer 2019 eDiscovery Business Confidence Survey: eDiscovery Trends

It’s that time again!  I’m here to cover the results of the Summer 2019 eDiscovery Business Confidence Survey, published (as always) on Rob Robinson’s terrific Complex Discovery site.  So, how confident are individuals working in the eDiscovery ecosystem in the business of eDiscovery?  Let’s see.

As always, Rob provides a complete breakdown of the latest survey results, which you can check out here.  As I’ve done for the past few surveys, I will provide some analysis and I’m continuing to take a look at all surveys conducted to look at trends over time.  So, this time, I will look at the results for all fifteen surveys to date, from January 2016 to present.

The Summer 2019 Survey response period was initiated on July 1 and continued until registration of 173(!) responses last week, another high number of participants, thanks in part to support and promotion from the Association of Certified E-Discovery Specialists (ACEDS).

Software and/or Services Provider Reclaim Their Normal Position: After a rare instance of another group (Law Firm respondents) leading in the Spring survey, we’re back to Software and/or Services Provider respondents as the top group with 31.8% of all respondents.  Law Firm respondents weren’t too far behind at 30.6% of all respondents (still higher than last time).  Corporation respondents were third at 15.6%, another high percentage of corporate respondents and Consultancy was fourth at 12.7%.  If you count law firms as providers (they’re technically both providers and consumers), they account for over three-quarters of respondents at 75.1% of total respondents, which is still the second lowest percentage of provider respondents (higher than only last quarter’s 72.2%).  So, expanding the respondents has still continued diversify the responses somewhat.  Here’s a graphical representation of the trend over the fifteen surveys to date:

So, how confident is the largest group of respondents ever in eDiscovery business confidence?  See below.

Most Respondents Consider Business to Be Good (Barely): After the lowest ever number of respondents last time considered business to be good, we saw a 9.8 point rebound to 50.9% of respondents.  While that’s higher than last quarter, it’s lower than the last two summers.  41.6% of respondents consider business to be normal, so the good and normal numbers pretty much flip-flopped from last quarter.  7.5% of respondents rated business conditions as bad, which is comparable to last summer, but higher than two summers ago.  So, was last quarter’s lower current business conditions rating an anomaly?  Hmmm…  Here is the trend over the fifteen surveys to date:

So, how good do respondents expect business to be in six months?  See below.

Most Respondents Expect Business to be the Same Six Months From Now: While most respondents (96.0%) expect business conditions will be in their segment to be the same or better six months from now, that’s a drop of 1.8% as those expecting worse business conditions rose to 4.0% (from 2.2% last quarter), while the percentage expecting business to be the same fell to 56.1%.   More than half of respondents also expected the same on revenues and profits – 51.4% and 57.2% respectively.  When looking at previous summers, this summer reflects the lowest percentage of respondents expecting higher profits at 31.2% (only Winter 2019 was lower at 28%).  Great scott!  Here is the profits trend over the fifteen surveys to date:

Will the trend toward lower future profits predictions continue?  We’ll see.

Cost, Cost, Cost!  Budgetary Constraints Considered to Be Most Impactful to eDiscovery Business: Tag, you’re it!  Budgetary Constraints and Increasing Volumes of Data continued their almost reliable flip-flop between the top two positions, with Budgetary Constraints identified as the top factor this time with 27.2%.  Increasing Volumes of Data dropped back down to second at 22.5%. Increasing Types of Data was once again third at 20.8%, followed by Lack of Personnel at 12.7%, Data Security at 11.6% and Inadequate Technology (once again) bringing up the rear at 5.2%, the lowest number ever for any factor in the history of the survey.  Does this mean most people are happy with their technology?  Hmmm…  The graph below illustrates the distribution over the fifteen surveys to date:

Increasing Volumes of Data, Budgetary Constraints and (now) Increasing Types of Data continue to consistently be at the top of the most impactful factors quarter after quarter.

“Managing” to Be Somewhat Even in Distribution of Respondents: Operational Management respondents were the top group at 37.6%, almost it’s highest level ever (other than 38.9 percent in Fall 2016).  Tactical Execution respondents were second at 35.3% and Executive Leadership respondents were last again at 27.2%, though almost 3 percent higher than last quarter.  Here’s the breakdown over the fifteen surveys to date:

It’s clear that the more respondents we get, the more diverse the results with a much greater influence from the “rank and file” (i.e., managers and technicians).

Again, Rob has published the results on his site here, which shows responses to additional questions not referenced here.  Check them out.

So, what do you think?  What’s your state of confidence in the business of eDiscovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Rankin/Bass Productions

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

A “Random” Idea on Search Sampling: eDiscovery Throwback Thursdays

If you missed it the past couple of weeks, we started a new series – Throwback Thursdays – here on the blog, where we are revisiting some of the eDiscovery best practice posts we have covered over the years and discuss whether any of those recommended best practices have changed since we originally covered them.

This post was originally published on April 4, 2011.  It was part of a three-post series that we started revisiting last week and will conclude the series next week.  We have continued to touch on this topic over the years, including our webcast just last month.  One of our best!

Last Thursday, we talked about how to determine an appropriate sample size to test your search results as well as the items NOT retrieved by the search, using a site that provides a sample size calculator.  Today, we’ll talk about how to make sure the sample size is randomly selected.

A randomly selected sample gives each file an equal chance of being reviewed and eliminates the chance of bias being introduced into the sample which might skew the results.  Merely selecting the first or last x number of items (or any other group) in the set may not reflect the population as a whole – for example, all of those items could come from a single custodian.  To ensure a fair, defensible sample, it needs to be selected randomly.

So, how do you select the numbers randomly?  Of course, many eDiscovery platforms do that for you and enable you to generate your own random sample.  However, to illustrate the concept, we will once again demonstrate here with a web site.

Here’s one site, Random.org, that has a random integer generator which will randomly generate whole numbers.  You simply need to supply the number of random integers that you need to be generated, the starting number and ending number of the range within which the randomly generated numbers should fall.  The site will then generate a list of numbers that you can copy and paste into a text file or even a spreadsheet.  The site also provides an Advanced mode, which provides options for the numbers (e.g., decimal, hexadecimal), output format and how the randomization is ‘seeded’ (to generate the numbers).

In the example from Friday, you would provide 660 as the number of random integers to be generated, with a starting number of 1 and an ending number of 100,000 to get a list of random numbers for testing your search that yielded 100,000 files with hits (664, 1 and 1,000,000 respectively to get a list of numbers to test the non-hits).  Here’s how that looks on the site:

And, here is an example of the beginning of the list of numbers it generates (run it again and it will generate a different set of numbers):

You could paste the numbers into an Excel spreadsheet (Paste Special, then select Text) and sort them.  Here’s how that looks (sort dialog shown with the sort already performed):

You can then retrieve the files by position in the result set (typically Doc ID if you’re doing the entire collection) based on the random numbers retrieved review each of them to determine whether they reflect the intent of the search, which will give you a good sense of how effective your search was, based on the random sample.  And, probably more importantly, using that random sample to test your search results will be a highly defensible method to verify your approach in court.

So, what do you think?  Do you use sampling to test your search results?   Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Facebook Finally Reveals the Full Extent of the Cambridge Analytica Breach: Cybersecurity Trends

When I see news stories related to eDiscovery, cybersecurity or data privacy that I think would be of interest to our readers, it seems appropriate to share those stories here on this blog.  And this story is no exception.  It appears we finally now fully understand the extent of the Facebook/Cambridge Analytica breach from a few years ago.

According to the DailyER (Facebook relieved to discover data breached was just millions of minion memes, written by Chris Goehring), a newly released report confirmed the only data Cambridge Analytica accessed during the U.S. presidential campaign season a few years ago from 50 million Facebook users was millions of minion memes.

As you may recall, minion memes gained popularity on Facebook after the first Despicable Me movie was released in 2010.  Three years later, the popularity of minions was extended with the sequel Despicable Me 2 – sadly, it wasn’t until 2015 that the minions got their own movie, appropriately titled Minions.

A typical minion meme features one or more minions, which are goofy yellow characters from the movies who speak in gibberish, along with a funny saying in the background that is relatable to a group of people in some way. Here are some examples in a photo with Facebook CEO Mark Zuckerberg:

The minion memes have been a hit among suburban moms who constantly share the memes on their Facebook pages.

“I can’t believe someone stole all my funny minion memes!” exclaimed Lincoln, NE native Sharon Smith, mother of two loving children and grandmother to three grandchildren. “I can’t believe Facebook would let hackers access my data! If they let those hackers take any of my personal information, I’m gonna dab on those haters, LOL! Watch me whip and nae-nae!”

According to the article, Zuckerberg spoke about the scandal in a recent press release.

“Thank God they didn’t take any sensitive information,” said Zuckerberg. “This really could have been a huge disaster. What a relief it is they only took the minion memes. Hopefully, they don’t find the millions of credit card numbers I put on Craigslist last night. Now THAT would be a disaster.”

As they used to say in the old days, “that’s all the news that’s fit to print” on this, the first day of April, 2019.  ;o)

So, what do you think?  Did you have any minion memes on Facebook during this time?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Grants Adverse Inference Sanction Against Target for Failing to Preserve Surveillance Video: eDiscovery Case Law

In Decker v. Target Corp., No. 1:16-cv-00171-JNP-BCW (D. Utah Oct. 10, 2018), Utah District Judge Jill N. Parrish granted in part and denied in part the plaintiffs’ for a finding of spoliation and for sanctions, granting the plaintiffs’ request for sanctions for failing to preserve more of the video surveillance footage of the plaintiff’s trip and fall accident, but denied the plaintiffs’ request for sanctions for failing to preserve training records and the store’s safety statistics and records for 2015.

Case Background

In this trip and fall dispute where the plaintiff tripped on a flatbed stocking cart and fell onto the floor (suffering serious injury that required transport from Target by ambulance) in December 2015, two defendant employees reviewed video surveillance footage of the incident and created a copy of the portions of the video that included the plaintiff in the frame. The defendant employees did not save any other portions of the video. The unsaved portions of the footage were later automatically overwritten by the defendant’s system, which only maintains video surveillance footage for approximately fifteen to twenty-five days.

Exactly one month after the incident, the plaintiffs delivered a letter to the defendant, through counsel, requesting preservation of “all pertinent records and electronic records pertaining to [the] incident or that could relate to [the] incident,” as well as “a copy of any video surveillance that shows [the] accident or the area of the accident at any time before, during, or after the event.”  The parties subsequently engaged in several rounds of discovery and document production and the plaintiffs specifically requested the defendant’s training records and safety statistics from 2015.

On June 8, 2018, the plaintiffs filed a motion for a finding of spoliation and for sanctions for the defendant’s failure to preserve more of the video surveillance footage of the accident, and failing to preserve training records and the store’s safety statistics and records for 2015.

Judge’s Ruling

Noting that “[t]o be entitled to an adverse inference instruction, the Deckers must establish that Target acted in bad faith in failing to preserve the evidence at issue”, Judge Parrish stated:

“The video footage as issue was reviewed shortly after the incident by two Target employees, Mackenzie Steele and Trevor Phillips. The employees testified that they decided not to preserve the portions of the footage where Mrs. Decker was not present because they did not believe they were relevant. In so doing, they acted in violation of Target policy requiring that employees preserve video surveillance footage showing twenty minutes before and twenty minutes after any such incident. The employees represented that they were not aware of this policy. Were the court to evaluate their actions individually, the court would not conclude they acted in bad faith. But these employees were not acting as individuals, they acted as agents of Target, and the court concludes that Target has acted in bad faith in regards to the evidence. First, Target failed to instruct its employees regarding Target policy of what footage to preserve. Second, Target employees failed to preserve all relevant footage. And third, Target’s counsel now seeks to take advantage of the evidence that Target failed to preserve by arguing that the flatbed cart was attended or worked by Target employees during the gap in the video. It is this attempt to take advantage of a situation that Target caused that leads the court to conclude Target acted in bad faith. The court will therefore instruct the jury to make the adverse inference that the flatbed cart was unattended for the twenty minutes prior to the accident.”

However, Judge Parrish also stated that “The Deckers are not entitled to an adverse inference instruction regarding the training records because the Deckers have not established that the allegedly destroyed records were ever created.”  And, she also denied the plaintiffs’ request for sanctions regarding the lack of safety statistics, stating: “General safety statistics do not indicate whether Target was negligent in leaving the flatbed cart in the aisle.”  But, she did caution the defendant that its failure to produce its safety statistics would prevent it from offering any evidence that the store had high safety scores at the time of the accident.

So, what do you think?  Should a party be held to the bad faith standard when their employees fail to adhere to company policy?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Jason R. Baron of Drinker Biddle & Reath LLP: eDiscovery Trends 2018

This is the seventh of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Jason R. Baron.  Jason is a member of Drinker Biddle & Reath LLP’s Information Governance and eDiscovery practice and co-chair of the Information Governance Initiative.  An internationally recognized speaker and author on the preservation of electronic documents, Jason previously served as the first Director of Litigation for the U.S. National Archives and Records Administration, and as trial lawyer and senior counsel at the Department of Justice.  He also was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He served as lead editor of the recently published ABA book, Perspectives on Predictive Coding and Other Advanced Search Methods for the Legal Practitioner.

What were your general observations about LTNY this year?

{Interviewed the last day of the show}

We have come to a moment where artificial intelligence (AI) is being recognized as important for the legal industry. You see it everywhere. Five years ago, we saw the emergence of one form of AI in the guise of technology-assisted review in e-discovery.  Now the moment has arrived for the merger of AI and law more generally — not just for the purpose of more efficiently finding relevant documents in the haystack, but using artificial intelligence techniques across a spectrum of legal contexts. That’s a good thing.

I just finished reading two books that I highly recommend to your readers.  One is by Max Tegmark, called Life 3.0. Another is by the former chess grandmaster of the world, Garry Kasparov, called Deep Thinking.  Both books talk about the rise of AI in our lives. Tegmark has this wonderful illustration of the rising waters of AI, where it now engulfs chess and Go, and is lapping up against more creative intellectual activities including story writing and software development. Whether we’re talking about robots, intelligent agents, or software with predictive powers, we are seeing AI replace tasks carried out both in factories as well as by the professional class.  I would think that over the course of the next five to ten years, we’re going to see at Legalweek a greater and greater focus on AI applications in the law and what that means, including issues surrounding law and ethics.

The “trolley car problem” – involving whether one should throw a switch to make sure that a hypothetical train doesn’t hit a group of children instead of a large gentleman — is now a real problem faced by the makers of driverless car software.  With driverless cars and taxis, you’re going to see injuries in some cases.  So, there’s the question of liability, i.e., whether the software developer or manufacturer are held to a standard of strict liability, and what kind of ethical considerations are involved.  We’re seeing a world of future hypotheticals coming into being across a whole range of applications.  I think that’s exciting.

In your session at Legaltech regarding Internet and Things, your panel discussed privacy and ethics. When it comes to mobile devices, Internet of Things devices, and so forth, it certainly seems to me that a lot of attorneys would prefer not to worry about data on those devices or go collect from them. What do you think is going to be necessary to change that mentality?

I don’t know whether the mentality really has to change, especially in light of the 2015 Amendments that highlight the need for proportionality and discovery. I have always been a fan of iterative processes and tiered eDiscovery, so that you get early on the good stuff (i.e., the “low hanging fruit”). So now, we’re talking about a whole set of devices that are streaming data and a lot of applications that are out there – and what we discussed in that session and what I believe is that courts should be taking a hard look at the need for, in the first instance, going after all of these various types of communications and streams of data.  In other words, a judge should be saying:  “Why don’t we start with traditional email or text messages, and go on from there in terms of discovery of other apps and other data streams.”

I think the jury is out as to whether data from the Internet of Things is itself going to be at the center of a huge amount of litigation in the near-term. There’s clearly some case law already on personal wearable devices and there will be litigation about software used in driverless cars.  And there are a bunch of cases in the civil and criminal areas where smart devices or intelligent agents (like Echo) seem to be omnipresent as evidence-gatherers – acting as an artificial “fly on the wall” when bad things happen in apartments or homes.  So we are seeing at the margins some case law –but I’m not sure that there’s going to be a rapid rise in terms of eDiscovery case law with respect to all of these different appliances. I think the point though not to lose sight of is that we still have a large task in handling more traditional forms of documents and ESI, and that these may still be the “low hanging fruit” in many, many cases without worrying about exotic forms of IOT that may or may not be relevant. Nonetheless, we’re increasingly in a world of smart devices, so to the extent of smart devices provide evidence of something that’s going wrong in the world, and there’s a legal case to be had, that kind of data will have to be dealt with.

The bottom line is that competency for lawyers is changing.  It’s not just whether you know the difference between various forms of technology assisted review and whether you’re up on the latest continuous active learning, TAR 3.0, 4.0, or whatever.  It’s not just that. It’s not tied to the big case. It’s that you need to be aware that there are sources of data everywhere, in every case. Whether it’s a family law case or a personal injury case or whatever, there may be sources of data beyond what lawyers of a certain age know about in having previously sought.  So, the duty of competence is really just basically the duty of keeping up with the world around us in 2018 and beyond.

Another big topic at the show has been GDPR.  What are your observations on GDPR and how it’s going to impact, not just how information is handled in the EU, but how American companies are going to work with companies that have information in the EU?

The practice that I joined a few years ago at Drinker Biddle is an Information Governance and eDiscovery group. There’s a separate set of lawyers here who have been, for many years, experts in EU privacy law. It has been quite obvious to me in the last year in the run-up to GDPR that these practice groups really need to merge, and that the kind of questions that we are getting from companies with a global footprint about information governance are entwined increasingly with “what do we do about GDPR?”  We will know more after May 25, 2018, of course, when compliance rulings and interpretations are handed down, and fines are levied, in terms of what constitutes best practices under the GDPR.  But in the meantime, I’d say that GDPR-readiness is acting as a driver for US companies paying more attention to best practices in information governance. So I think it’s a good thing all of us have gotten a little bit up to speed on GDPR requirements.

I’ll tell you one aspect which may or may not be the sexiest topic in the world, but it’s the world I inhabit: on the issue of record retention, GDPR actually represents a sea-change in the way one goes about thinking about a corporate firm’s retention obligations. I’ve written about this in Ethical Boardroom and other places. The typical engagement for us as a law firm is being asked to provide advice on harmonizing a global set of record requirements into a schedule with simplified bigger buckets, coupled with automating processes around electronic content management.

It’s always been the perspective in US records schedules that the retention periods set out in the schedules operate as minimums for purposes of Sarbanes-Oxley, HIPAA, TARP, whatever. You name the vertical and it’s a minimum. For compliance purposes, you have to save data for a certain amount of years. If you save it longer, there’s no big penalty in most instances. Well, the GDPR is flipping that long-held assumption.

The specter of having an EU audit where your firm holds petabytes of data that involve potential personal information that has been in lying around for a decade or more after a retention period has ended is, shall we say, problematic. It’s not going to affect every company right away in May 2018. But, I would predict that if we’re talking in a year or two or three, some entity is going to be fined out there. Whatever the records schedule says now is a potential landmine for a company, unless it pays stricter attention to ensuring compliance with the retention periods within the schedule.   The environment that I see is one which is probably good for lawyers, because at least at firms like mine, companies are coming to us saying they really haven’t grappled with the disposition of legacy data. They may have some policies in place, but it’s not really automated in a way that results in real deletion. The bottom line: what is needed are defensible deletion policies that are complied with in accordance with records schedules, so as to meet important aspects of the GDPR.

The last thing I’d say is that, as is well known, the entire subject of privacy represents a paradigm clash as between the US and the EU, especially with respect to the concept of the “right to be forgotten.” I actually have been on record for a number of years as being quite sympathetic to the EU perspective — for example, at Georgetown’s 2017 Advanced eDiscovery program I gave one of the so-called “eD talks (sort of like a TED talk),  I said that I didn’t wish to be a shill for a future corporate Orwellian state. In that talk, I traced the issues that have animated me for the past 15 years or so about being smart in the eDiscovery space about search.  But I also noted that AI has evolved to the point where we now are using analytics in ways that may be increasingly creepy in terms of surveillance of employees, or the ability to de-anonymize data on consumers.

All of that said, at Georgetown and in other talks I have lobbied for a notion of corporate responsibility in the AI and law space – arguing that there should be something akin to IRBs – human subject review panels – used, where corporations consider the algorithmic impact on people and a need for greater transparency on what decisions are being made by software.  Beyond algorithmic bias and surveillance, I would bet there are a hundred other types of issues in the space that what I will call an “algorithmic review board” might be called upon to handle.  But in my view there’s some level of corporate responsibility to be met in an increasingly AI era.   So, I think the EU privacy model is one that we should pay attention to in terms of the impact of algorithms on our lives, and what it means to have some sort of zone of privacy that you have meaningfully consented to as an employee or consumer.

You mentioned blockchain and that another topic your panel discussed in your session yesterday.  How do you see that unfolding and the impact of watching on the legal industry?

As I said at the session the other day, on the Gartner hype cycle the buzz around blockchains is definitely going up.    Of course, regulation of cryptocurrencies is a very hot topic.  However, blockchain and distributed ledger technologies are not just Bitcoin or ICO’s.  Rather, blockchains represent a new way of establishing trust on the internet.  One can imagine endless variations and possibilities of using blockchain applications for good purposes that have nothing to do with cryptocurrencies. You can use the distributor ledger technology for record keeping, for supply chains, for any number of applications which are of great interest. There isn’t a day that goes by where I don’t see some article that says ”Blockchains will be a disruptive force in ‘such and such’ industry.” Now, is it hype? Some of it may well be, but I think that, at bottom, the idea that you can hash information in a way to put together in a chain and make it immutable — where you have trust that that chain retains within it some kind of authentic pointers to information, and that you basically trust the objects themselves in a way that doesn’t rely on third parties —  is exciting.

It’s a very interesting development. You see a lot of interest across industries. There’s still a certain mystery to blockchain. Where are mining operations? Who’s doing the mining? How do the algorithms work? What is a blockchain’s future when all the tokens have been mined?   I myself have questions about all of that and don’t profess to understand all the details. But, I have been really interested in the potential for these applications and we’re going to see it talked about more and more. If AI was the primary new thing for Legalweek this year, I think blockchain was also right up there. We’ll see in the future.

I think there’s a wonderful moment here where more lawyers should be involved in at least knowing what the technology is all about and thinking creatively about its applications for the future.

What would you like our readers to know about things you’re working on?

My professional interests are a bit different from most of the people that hang out at Legaltech, mainly due to the fact that I spent 33 years in the government, including at the Justice Department and as Director of Litigation to the National Archives. I still have a passion for how to preserve and how to access public records in digital form. I’ve been very privileged over the last year to give talks in Amsterdam, in Vienna, in Cape Town, in London, and in the US and Canada all on the subject of how we should be thinking about amassing huge collections of public record archives in digital form, and how to access those records. Paradoxically, you put stuff in digital form with the idea that you’re going to be able to search it easily, compared with boxes and manual paper. However, it ends up that it’s very difficult to access huge digital collections, especially if they are filled with personally identifiable information (PII) and other forms of sensitive data.  What animates me in the papers that I’ve done at IEEE and at other conferences and forums is to talk about the need to apply what we know in the eDiscovery space now with respect to AI. Machine learning technologies can be very helpful to extract out sensitive data from large collections, and to have a public use version of the larger collection in some form in order that people can get access to huge collections of email or other electronic records that constitute public archives.

So I intend to devote a fair amount of time going forward on issues concerning the freedom of information aspects of the law. How do we stay informed about what governments are doing? That’s a difficult question in the US and it’s even more difficult around the world. That is of interest to me. I’m very thankful that I work in a law firm that has allowed me the opportunity to pursue that interest, in addition to thinking about matters that actually result in billable hours! {laughs}

Also, the Information Governance Initiative continues apace with its just published third State of IG Report.  (See www.iginitiative.com.)   Barclay Blair has led the way on that. I think we are seeing a greater penetration in the corporate space of the idea of IG, that there’s a greater maturity, a greater acceptance of IG councils and IG champions. All of that’s good. We have, as we have had for the last three years, ia Chief Information Governance Officer (CIGO) Summit in Chicago, which will take place on May 9th and 10th.  As we always have, we gather together for a single summit 60 or 70 individuals who are card-carrying IG people that have some kind of title in the space. We talk about leadership.  And the IGI will continue to be partnering with lots of innovative companies to produce white papers and to have an ongoing conversation about the importance of Information Governance. I’m delighted to be part of that effort.

Thanks, Jason, for participating in the interview!

As always, please share any comments you might have or if you’d like to know more about a particular topic!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Kelly Twigger of ESI Attorneys: eDiscovery Trends 2018

This is the sixth of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Kelly Twigger.  Kelly is a Discovery Strategist and the Principal of ESI Attorneys, one of the first law firms in the country dedicated to advising clients on the risks and challenges in ESI, including eDiscovery. ESI Attorneys works differently than a traditional law firm – they partner with businesses, law firms and municipalities that do not have discovery counsel knowledgeable to both advise on planning and preparing for eDiscovery and act as discovery counsel across litigation matters to achieve consistency and predictability. Kelly also has a passion for ensuring that lawyers and legal professionals have the tools they need to understand and leverage the power of ESI in discovery, and has developed a SaaS based platform to provide the ability for lawyers to get up to speed and stay there with eDiscovery Assistant.  eDiscovery Assistant is a web based curated eDiscovery research tool and learning center that allows users to conduct eDiscovery specific case law research, use curated discovery rules, forms and checklists together with a Learning Center that rethinks the delivery of legal education. CloudNine uses eDiscovery Assistant to identify and provide case law on this blog. In 2014, the Wisconsin State Bar recognized Kelly as a Legal Innovator for her development of eDiscovery Assistant. Kelly is a regular speaker at national and local events, blogger and the eDiscovery columnist for Above the Law.

What were your general observations about LTNY this year?

{Interviewed after the show}

If I had to pick one word to describe Legaltech this year, I would use the word change. I think that it was clear that the format of Legaltech is undergoing a substantial amount of change, both in terms of personnel and the approach to the show. It is not on the grand scale that it used to be, but it’s still the place to meet up with industry colleagues and get a glimpse of what’s happening in legal tech. The show had less focus on eDiscovery this year – and I attribute that to three things:  the consolidation of service providers in the space, the perceived maturity of the eDiscovery market (it’s not), and the development of new areas of risk in legal that are sexy – artificial intelligence, blockchain, etc. No question those issues are stealing the show in conversations. I saw some pretty amazing smaller companies with revolutionary (for the legal space) products that can start allowing some of the change in the practice of law that we’ve been talking about for a decade. I saw significantly less service providers at the show, because most of those folks moved to off-site meetings instead of having a presence on the vendor floor.  I felt like this year’s show gave credence that we are starting to recognize the changes in the practice of law – boutique firms is a good example – and to build the technology that can support them.

If you were “queen of LTNY” for a year, what kind of changes would you make?

Wow, now that’s a question. What changes would I make to the show? I was driving before we sat down and to talk, and I was thinking about Legaltech in relation to some of the other conferences in which I participate. The Masters Conference is one, the University of Florida Conference in which you and I are going to be on a panel together (tomorrow) is one. I feel like my learning is accelerated greater at those types of events where they are more intimate, where there’s more interaction between the people who were there versus Legaltech.

Legaltech has great panels, but they’re so spread out, in so many different rooms, with so many other events going on at the same time, and so many folks setting up private meetings outside of the conference. It’s a very different dynamic. I would restructure it to encourage those meetings, but also to allow participants to take advantage of the sessions. Why not acknowledge the need to have those meetings and build them into the show? I run from place to place most of the day – my fitness tracker logs many miles a day at Legaltech. It’s too hard to fit everything in a two to three day period that you want to. I’d like to see it facilitated better to make both of those things possibilities.

I’m not an event planner and that’s an easy thing for me to say and a hard thing to make happen. I’m not sure if that’s constructive feedback, or if ALM wants to hear it. But, that’s my thought. You’re getting so many truly knowledgeable people in a space — not just speakers but participants as well — who bring so much to the table from a support focus, from a paralegal focus, from a lawyer focus, from a consultant focus, and I don’t know that the event capitalizes on the value that comes to that conference in the format that it currently has. What I would love to see is the ability for more interaction to capitalize on that knowledge base.

eDiscovery Assistant has a lot of features and resources available. Obviously, one of the most notable aspects of that is all the case law you cover on your site. Do you have any observations on key trends you’ve seen with regards to the eDiscovery case law lately that has been evident from your perspective?

Yes. eDiscovery Assistant is our platform where we really strive to be a resource for people who are engaging in electronic discovery. eDA does not handle data, it’s a strategy tool. It’s a combination of legal research for discovery and a place to get answers on demand when you have to respond to the motion to compel or draft RFP’s on how to request Facebook data. The case law has been aplenty already for 2018 – as of March 24, we have 192 discovery decisions from across the country in the database, all tagged and able to be sorted by eDiscovery issue (think proportionality, social media, form of production, sanctions, etc.).

I’m seeing some inconsistency in application of the amendments from 2015. I’m also seeing that we don’t necessarily have lawyers who are coming to the table more informed about eDiscovery or how to argue issues or educate the judges. In terms of development, we’re seeing a lot more case law in social media, but primarily within the criminal context. We’re starting to see some really interesting developments with cloud-based issues, like the U.S. v. Microsoft Corp. case.

The Supreme Court heard U.S. v. Microsoft Corp. in late February on the issue of whether Microsoft should be required to pull data back from Ireland when the data actually lives in Ireland and not in the United States. The case will have a fundamental impact on the interpretation of the Stored Communications Act, how and where data is stored, and what the government’s reach is under that law. The decision is going to have a huge impact on businesses and the way that we manage our data as consumers from a cloud perspective. How many cloud based applications are you using?  I probably have 50 or more. I’m interested to see what else will come about this year in terms of development, but so far in the case law, we’re still waiting on new things to come about and lawyers to grasp these concepts and argue them effectively to the court. We’re still seeing a lack of education that I’d like to change. Clients deserve the representation on these issues, and we’ve never had such rapid development in an area of the law like we are seeing now. We have 910 cases in 2017 in eDA. 910 cases? That’s crazy.

One of the hotter topics this year at LTNY was GDPR. Where do you think the majority of organizations stand with GDPR? How do you think these next few months are going to unfold?

What I’m seeing with GDPR and working towards compliance varies tremendously across the size of organizations. There still remains a lot of confusion about the applicability of GDPR and what organizations need to be thinking about, and whether they need to be. If you are thinking approaching GDPR compliance, what it is that you specifically need to be addressing? Some of that goes back to the fact that information governance is not as prominent in every organization as it should be, or that those of us in this space would like to think that it should be. I’m not sure that I have great answers for you on GDPR, except that the next few months are going to be very interesting. I think that the enforcement and what comes out of GDPR is going to be the most telling. If eDiscovery is any indication, we won’t see a lot of action for some organizations until we see some enforcement decisions that really bring about the emphatic nature of the privacy regulations.

With regard to eDiscovery, information governance and cybersecurity, what are people not talking enough about that they should be?

That varies by organization. When we have panel discussions, there’s often a lot of discussion at the very high level of cybersecurity, GDPR, or blockchain, and privacy issues. eDiscovery is getting pushed to the wayside prematurely, almost as if some folks are tired of talking about it. I don’t just say that because it’s what we do every day, but because I see it every single day – lawyers at every size organization who don’t know the basics or the technology and how to ask the questions and engage effectively in eDiscovery. A lawyer the other day told me he had friends retire from practicing rather than wade into eDiscovery, it causes that much angst. There are many, many, organizations, law firms and clients in general that are still down at the very base considerations of, “we know we need to be thinking more about ESI and what we’re doing with it, but we don’t know how to think about those things, or what our goals need to be, or how to structure them, because we’re not used to working with business information or governance IT altogether. We’re still in that silo kind of fashion.”  While the market has matured in service delivery, the clients are not there yet. There are a lot of basic things in information governance and eDiscovery that still need to be considered. The more risks you have in cybersecurity and these other issues, the more you’re likely to have tackled them, but those are also risks that are addressed by IT directly and so the liaison between the two isn’t as difficult as it is with eDiscovery. We’ve still got a long way to go.

What would you like our readers to know about things you’re working on?

We are working to solve the problem that I am passionate about – getting lawyers and legal professionals knowledgeable about eDiscovery and getting the clients the representation they need. That there are folks who really don’t know how to get started, lawyers who don’t know how to handle a case with significant or even any electronic discovery involved, which most cases are now – whether they’re law firms, whether they’re lawyers in-house or whether they’re government attorneys. If we want folks to be able to have the ability to understand what the processes are in electronic discovery and dealing with privacy and even some cybersecurity issues, and how to be able to address them, we have to solve the education and knowledge problem first, and that’s what we are trying to do by rethinking the delivery of education in short, manageable and practical chunks.

As lawyers, our job is to issue spot, and we can’t issue spot what we don’t know. In eDiscovery Assistant, we’ve built an online community of users with a knowledge base and continuing education to help tell them by answering questions that arise with developments in technology and the law. For example, here are the issues, now that your clients are migrating to Office 365, here the issues in capturing social media. Here are the issues when you’re using a platform and your service provider suddenly goes under. What do you need to be thinking about? How do you set up contract review? How do you collect any kind of data when you’re sitting in your office and you suddenly have a client’s hard drive? We set out to build a platform that addresses the practical needs of lawyers who have little time, increased client demands, AFA’s etc. and can still give them a credible understanding of what they need to do in eDiscovery. It’s very unique to the legal space. We’ve never had anything like this. We want to create a space where lawyers and legal professionals and anyone who touches the eDiscovery process – these areas where we’re dealing with ESI issues, privacy and cybersecurity and the like – will be able to come in and get up to speed quickly. That’s really what we’re working on. We’re rethinking both the delivery of legal research and also legal education on these topics. We’re really excited about what we’re doing and looking forward towards 2018 has to bring.

Thanks, Kelly, for participating in the interview!

Also, we’re getting ever closer to the University of Florida E-Discovery Conference, which will be held this Thursday, March 29.  As always, the conference will be conducted in Gainesville, FL on the University of Florida Levin College of Law campus (as well as being livestreamed), with CLE-accredited sessions all day from 8am to 5:30pm ET.  I (Doug) am on a panel discussion at 9am ET in a session titled Getting Critical Information From The Tough Locations – Cloud, IOT, Social Media, And Smartphones! with Craig Ball, Kelly, and with Judge Amanda Arnold Sansone.  Click here to register for the conference – it’s only $199 for the entire day in person and only $99 for livestream attendance.  Don’t miss it!

As always, please share any comments you might have or if you’d like to know more about a particular topic!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Welcoming a New Blog and a New Champ: eDiscovery Trends

OK, I admit that only one of these topics is completely about eDiscovery – the other is somewhat about eDiscovery, sort of…

When I attended Relativity Fest last week (here’s a recap of some of the highlights), one of the highlights of the conference was the ACEDS happy hour on Monday evening, where I got to visit with everybody from my CloudNine colleagues to Kelly Twigger to Bill Hamilton to Andy Sjeja to Tom and Gayle O’Connor to George Socha to Jim Gill.

I had never met Jim Gill before, but I have been a fan of his work on the Exterro blog.  So, I was delighted to find out that Jim was joining the ACEDS team to manage marketing for them.  And, now – not surprisingly – ACEDS has announced a new blog called the ACEDS eDiscovery Voice!  Jim’s first post discussed one of the panels at Relativity Fest, where David Horrigan of Relativity moderated (how many panels did he moderate, just sayin’) and Mary Mack Executive Director of ACEDS, Patrick Burke from Cardozo Law School; Wendy Collins Perdue, Dean of the University of Richmond School of Law; William Hamilton, Professor at the University of Florida School of Law; and Hon. Xavier Rodriguez, US District Judge and Professor at St. Mary’s Law school all participated as panelists.

Jim’s post discussed how the legal profession is changing and how legal project management is causing traditional training of attorneys and paralegals to shift (there’s that word again).  Good post and I look forward to more good posts in the new ACEDS blog.

In my years of providing litigation support and technology services to clients, I’ve worked on my share of high-stress and high-deadline projects.  One project from the early 90’s stands out during my “Big 6” (as it was known back then) consulting days – I was recruited to join the project on a Friday the 13th (which should have been a clue) and worked ungodly hours (and most weekends) for the next three months to manage data related to a Chapter 11 bankruptcy re-organization and submit a reorganization plan to the court (that hearing was also on a Friday the 13th).  Our working pattern was two to three nights of working late (typically between 10pm and midnight) and then one night of hanging out at the hotel bar, which is the only bar I’ve ever been able to go into and request “the usual”.

Anyway, imagine working a project like that for seven to nine months, with many nights working late, some under the most extreme stress, with the whole world watching and a city (devastated by recent floods) counting on you to give them a big lift and bring them joy.  When some of them have never experienced that joy in up to 55 years of waiting.  No pressure, right?  :o)

With all due respect to my friends and readers of the blog from Los Angeles, I’m talking about the Houston Astros, who won their first ever championship Wednesday night in the last game – winner take all – in the season.  While I celebrate the Astros’ championship (while at the same time wishing that my mother and father had lived long enough to see it), it occurs to me that a baseball team is much like a project team, doing what they can to come through in the clutch to meet deadlines.  While those of us who don’t play major league baseball will not get the headlines that they do, the satisfaction of meeting a goal is much the same.  Congratulations, Astros and congratulations Houston!

So, what do you think?  Do you have any extreme project stories to share?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © ESPN

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

That Was Random: eDiscovery Best Practices

This may be the shortest title ever in this history of this blog.  In the first year of the blog’s existence (when we had a lot fewer subscribers and readers than we do now), we did a three part series on how to perform an iterative random sample of a search result set to evaluate the results.  As we have discussed the topic recently in two webinars, I thought I would revisit it here for those who didn’t attend the webinars (though you can still check them out on demand) and weren’t readers of our blog back then.

Searching is part science and part art – there are too many variables to make assumptions about your search results, so you must test your search results to determine whether your search criteria is valid or needs revision.  Often, you’ll find variables that you didn’t anticipate that force you to revise your search.

It’s not just important to test the result set from your search, it’s also important to test what was not retrieved to look for result hits you might have missed.

How many documents should you review in your test of each set?  How do you select the documents to test?  Initial testing can help identify some issues, but to develop a level of demonstrable confidence in your search, your test should involve random sampling of each set.

To determine the number of documents you need to sample, you need three things:

  • Size of the Test Set: This would be the size of the result set OR the size of the set of documents NOT retrieved in the result set;
  • Confidence Level: The amount of uncertainty you can tolerate in your results. A typical confidence level is 95% to 99%;
  • Margin of Error: The amount of error that you can tolerate (typically 5% or less).

The good news is that you don’t have to dust off your statistics textbook from college.  There are several sites that provide sample size calculators to help you determine an appropriate sample size, including this one.

Here’s an example.  A search retrieves 100,000 files, with 1,000,000 files NOT retrieved:

Retrieved: Size of the test set = 100,000; confidence level = 99%, margin of error = 5%.  You need to review 660 retrieved files to obtain a 99% confidence level in the resulting test (goes down to 383 retrieved files if a 95% confidence level will do).

NOT Retrieved: Size of the test set = 1,000,000; confidence level = 99%, margin of error = 5%.  You need to review 664 retrieved files to obtain a 99% confidence level in the resulting test (goes down to 384 retrieved files for a 95% confidence level).

As you can see, the sample size doesn’t need to increase much when the population gets really large and you can review a relatively small subset to check the results.

Once you have determined the number of documents you need in your test set, it’s best to generate a random selection of the documents you plan to test to avoid potential bias in your results.  This site has a random integer generator which will randomly generate whole numbers.  Simply supply the number of random integers that you need to be generated, the starting number and ending number of the range and the site will then generate a list of numbers that you can copy and paste into a text file or even a spreadsheet.

You can then apply those randomly generated numbers to your result set to review those selected documents to test your search.

In our Best Practices for Effective eDiscovery Searching webcast earlier this year, I walked through an iterative example of testing and refining a search until it achieved the best balance of recall and precision.  The example is based on a real-life example I once performed for a client.  You can check it out on the webcast or via this old post here from our first year.

So, what do you think?  Do you use sampling to test your search results?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Welcome to 2016! The Age of eDiscovery Automation is Upon Us!: eDiscovery Trends

It was not that many years ago that if we wanted to buy something, we had to go to a store.  If we wanted to withdraw money from our bank account, we had to get it from a bank teller.  If we wanted to buy music, we had to go to a music store – today, we can download the music we want instantly.  If we wanted to rent a movie, we had to go to Blockbuster or one of the other movie rental stores now rendered obsolete by streaming services like Netflix*.  And, we can get just about anything else from Amazon and other online retailers that sell pretty much anything.

Did you know that, on this most recent Black Friday, where retailers have numerous discounts designed to get shoppers into their stores, online sales still outpaced in-store sales for that day.  Even on the “biggest shopping day of the year” more people would prefer to purchase Christmas gifts from the comfort of their home than to fight the crowds and wait in line at the stores.  My wife, Paige, and I did quite a bit of shopping that day for the kids and for friends – all online.  Your gift is “still in the mail”… :o)

Let’s face it, many services for which we used to rely on other people for are now automated in such a way that people can take care of that need themselves.  Most people love to be self-sufficient and do things themselves – as long as it’s reasonably simple to do so.  Why haven’t self-check lanes at grocery stores completely replaced those with an attendant that performs the check out for you?  Because the grocery stores haven’t figured out a way to make it easy enough (there are still many people who don’t like to use the self-check lanes at grocery stores because they find it to be too complicated).

What about in our industry – eDiscovery?  Are we an automated industry?  We’re becoming one – a lot faster than you think.

It’s hard to believe that next month will be the fourth anniversary of Judge Andrew J. Peck’s ruling in Da Silva Moore, which is widely considered to be the first case that considered technology-assisted review (TAR) to be an acceptable way to conduct review for ESI in discovery.  Since then, we have had numerous cases where TAR was approved for use during the review process and the technology and best practices associated with TAR have come a long way in a very short amount of time.  Automating the majority of document classification from a small subset classified by humans has become an accepted practice to significantly reduce review costs without sacrificing quality (if anything, quality has been found to have been improved in many instances).

Is that the only place where automation has been implemented in the eDiscovery process?  Nope.  Now, providers, including my company CloudNine (shameless plug warning!), have begun to automate many tasks from Identification to Production within the eDiscovery life cycle, with the biggest benefits gained in the Processing phase.  Now, you can point to a collection of Outlook PST or other files on a hard drive, upload them and an automated process will unpack them, extract attachments from emails, render all files to an HTML format, capture metadata, capture text, OCR image-only files that don’t have text and HASH the files for de-duplication (that’s what you can do with our software, anyway).  Many of these processes used to be manually performed (at least in part) and expensive; now, they can all easily performed with a few keystrokes from the comfort of your desktop – for free.  Automation has touched every phase within the EDRM model and will only continue to do so more as time passes.  It’s inevitable.

It’s time for all of us to accept that the age on eDiscovery automation is upon us.  As my boss likes to say, “you can get on the bus, or get run over by the bus”.  It’s here, and it’s here to stay.

*By the way, did you know that the CEO of Netflix once tried to sell his company to Blockbuster?  And, was turned down?  I’ll bet the executives at Blockbuster had that opportunity to do over again.

So, what do you think?  Do you think that we’ve reached the age of eDiscovery automation?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Why the Blog was Down — eDiscovery Downtime

 

If you’ve tried to access the blog for the past couple of days, you’ve experienced a lot of difficulty and, for parts of Monday and Tuesday, got an indication that the URL didn’t exist.  Here’s why:

According to Typepad, our platform for hosting the blog, “Beginning Thursday evening, Typepad was hit with a distributed denial of service (DDoS) off and on through today. A DDoS attack is an attempt to make services unavailable, but in no way was your Typepad account compromised. All information in your Typepad account is secure, including billing information. The attack on Typepad was similar to an attack on Basecamp which you can read about here.

The Typepad blogs and application have been restored. We put in place some roadblocks to mitigate the attack, but we are on high alert as attackers change their tactics regularly.”

Typepad reported that originally on Friday, then was hit with another attack on Sunday that left our blog down until yesterday afternoon.  It has been up since then.

Hopefully, the blog will continue to be up and accessible.  We’re continuing to monitor the situation and will provide an update if anything changes regarding the DDoS attack that Typepad has encountered.  Thanks for your patience and thanks for reading the blog!

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