Seventh Circuit Initiates e-Discovery Pilot Program Beginning October 1, 2009
September 30, 2009
Beginning October 1st, Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin. The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.
The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”
The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule26(f)(2). Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices. Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court. As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce.
Incorporating many of the requirements of the Federal Rules of Civil Procedure, the Seventh Circuit Electronic Discovery Pilot Program’s Principles Relating to the Discovery of Electronically Stored Information (“Principles”) focus in large part upon cooperation between the parties to resolve common issues related to e-discovery. Accordingly, in selected cases where the Principles are operative, counsel is required “to meet and discuss the application of the discovery process set forth in the Federal Rules of Civil Procedure and these Principles specific to their case.” The Principles also address common issues including the scope of preservation, the identification of electronically stored information, and the format of production.
Other highlights from the Principles include:
- the requirement that counsel designate an e-discovery liaison to work toward resolution in the event of a dispute;
- the delineation of specific considerations surrounding the use of a preservation letter, and the appropriate considerations in responding;
- the requirement that counsel confer with opposing counsel before seeking information regarding preservation and collection efforts to determine the need for such information and the suitability of alternative means to obtain it;
- the designation of certain categories of information as “generally not discoverable” such that counsel must confer prior to making a request for such information;
- the encouragement of counsel and the parties to “make a good faith effort to agree on the format(s) for production;” and
- the encouragement of the parties to “discuss cost sharing for optical character recognition (OCR) or other upgrades of paper documents or non-text-searchable electronic images that may be contemplated by each party.”
Phase One of the Pilot Program is schedule to end on May 1, 2010. The results of the Pilot Program will be presented at the 7th Circuit Annual Meeting. Phase Two of the Pilot Program is expected to run from June 2010 to May 2011, when the E-Discovery Committee will formally present its findings and issue its final Principles.
For a full copy of the Statement of Purpose and Preparation of Principles, click here.
Stratify sweeps left [of EDRM] with eVantage
September 29, 2009
Stratify, a subsidiary of Iron Mountain, introduced eVantage, an on-premises, early case assessment tool for e-discovery. Did you catch the word: "early." This may become one of Monica Bay’s stop words. But it’s too early (sic) to tell. Of course, "left" might too. It all depends on if the EDRM migrates with all this leftness.
For Stratify, the news is that they will deliver a box on site that can: process data (over 300 file and archival formats, including Encase, FTK, Exchange); remove system files and detect duplicate and near-duplicate data; search multilingual data (Chinese, Japanes, Korean, etc.) using complex Boolean and faceted search strategies where facets equal domains, custodians, e-mail senders and receivers, etc.; and offers intelligent ways to conduct first-level review and data analysis by e-mail threads and identified concepts and groups.
Now, if you can tell the difference between this left-of-center, early-case assessment tool from others, without more, my hat is off to you. But if you add the fact that eVantage scales up to Stratify Legal Discovery Service for hosted review for matter management and support for distributed review teams and disaster recover, then I will keep my hat.
The real distinguishing factors for early case assessment tools are licensing costs and services and support in the event that your early case assessment spells big trouble. It appears that Stratify is ready to go the distance with your data. Make sure your vendor can either go that length and/or provide you some assurance that you can take your data down the street in a heart beat if you need to.
A “Tweet” of e-Discovery Found in “The Lost Symbol”
September 29, 2009
Masonic rituals.
Thrilling suspense.
E-discovery?
And Twitter?
After reading Dan Brown's follow up to The Da Vinci Code, The Lost Symbol, I found it interesting to see a tiny bit of e-discovery mentioned in his novel–so to speak. Even more surprising, Brown also cited the popular social media tool,Twitter, as well.
To not to give away any spoilers (and I won't), I will point out where e-discovery and Twitter come into play. However, to be on the safe side, it's probably best to do that after the jump.
As many of this blog's readers know, one of the great challenges we have in e-discovery is how we deal with search. How do we cull down the data needed for review? How do we protect clients from paying their attorneys hundreds of thousands, if not millions of dollars, to look through your mom's favorite recipes, fantasy football team stats, or other "fill in the blank" personal notables that probably should not be made public?
Luckily, this is not a problem for our heroes in the The Lost Symbol. In chapter 18, there is a discussion of an amazing search mechanism of which only a select few of the characters have access. This incredible tool can scan the world deciphering everything from all modern languages to ancient texts.
Then came the kicker. They unleash this engine coupled with a search spider that weaves its way around the world into millions of other search engines to find a few lines of very specific text. The person doing the searching is skeptical that these phrases would be hard to make sense of no matter where on the planet they track them down.
However, wouldn't you know it, one document pops up that is the exact one they were looking for! One problem–that document was "redacted," and therefore was unable to be decoded. This gives way to another mystery of where that document came from and who possessed it.
Later on in the novel, one of the themes that emerges is the power of collective thought. That when multiple people concentrate on the same thing, their thoughts could create or change an outcome or situation. The modern day tool that is noted in bringing focus to this type of collective thought is none other than the internet sensation, Twitter.
This makes sense considering how Twitter can generate mass appeal (or disapproval) in an incredibly short amount of time. The Iran election, and Michael Jackson's death are probably the most well known examples of it's ability. Even LegalTech was one of the top "trending topics" at the New York conference last February. Thankfully, the "collective" on Twitter were unable to cause the death of Jeffrey Goldblum by their thoughts alone.
It's interesting to see as e-discovery continues to permeate through our legal and corporate worlds, that it's also working it's way into our fiction as well. While I do not expect John Grisham to come out with novel entitled "The Document Review" anytime soon, I will say that I am looking forward to what Dan Brown will write next.
2009-2010 EDRM Mid-Year Meeting Details
September 29, 2009
| October 20, 2009 7:30 am | to | October 21, 2009 1:00 pm |
The EDRM mid-year working meeting (aka The October Meeting) is scheduled for October 20 and 21, 2010. The objective of this meeting is to bring together the EDRM working groups for face-to-face meetings to work through the issues and advance the efforts of each working group toward completion of working group objectives and deliverables.
The proposed agenda for the meeting is noted below. Leading up to the meeting we will work with the project and working group leads to refine the details of the schedule. We need to hear from everyone whether you will be able to attend these meetings as well as suggestions. Your prompt response will be greatly appreciated.
Location: Saint Paul, Minnesota (The Saint Paul Hotel).
Agenda overview:
| Monday, October 19 | |
| 7:00 – 9:00 pm | Reception – M Street Grill, lower level of the Saint Paul Hotel |
| Tuesday, October 20 | |
| 7:00 – 8:00 am | Registration and continental breakfast |
| 8:00 – 9:15 am | Opening session – EDRM overview |
| 9:15 – 10:30 am | Break out sessions for project teams and working groups |
| 10:30 – 11:00 am | AM break |
| 11:00 am – 12:15 pm | Break out sessions for project teams and working groups |
| 12:15 – 1:15 pm | Lunch |
| 1:15 – 2:45 pm | Break out sessions for project teams and working groups |
| 2:45 – 3:00 pm | PM break |
| 3:00 – 4:00 pm | Break out sessions for project teams and working groups |
| 6:30 pm | Reception – Landmark Center (across the street from the Saint Paul Hotel) |
| Wednesday, October 21 | |
| 7:00 – 8:00 am | Continental breakfast |
| 8:00 – 8:15 am | Opening session – EDRM overview |
| 8:15 – 10:00 am | Break out sessions for project teams and working groups |
| 10:00 – 10:30 am | AM break |
| 10:30 am – Noon | Break out sessions for project teams and working groups |
| Noon | Closing session and lunch |
As we have done for previous meetings, we have reserved a block of rooms at the Saint Paul Hotel. For any guest wishing to make reservations, the Saint Paul Hotel can be reached at 1-800-292-9292. When making your reservations, please refer to Group ID: 500117 when making reservations online to ensure the group rate ($174/night). You will have until Sept 21 to make your reservation.
We would also like to take this opportunity to recognize the significant level of progress already made by several project teams. These groups met the challenges of summer vacations, heavy business workloads, coordination of schedules for conference calls and the like. Each project team is well on the way to making the 2009-2010 EDRM Projects successful. Thanks to all.
As always, your comments and suggestions to shape this event are welcome and appreciated.
Let us know if you have any questions.
Thanks,
George and Tom
‘Early’ now the operative word for ‘case assessment’
September 29, 2009
With many e-discovery vendors announcing new products aimed at getting attorneys to review critical documents earlier, rather than later, you would think that we are a procrastinating lot that cowers under our desks waiting for issues to abate rather than mature to a court date. But that’s not the case.
Having the ability to look at documents early, when there is the potential for litigation or when a government investigation looms, will give you an idea of the strength or weakness of your case, and possibly the strength or weakness of your opponent's case. It only makes sense to see the information early. That will give you time to plan the litigation — or allow for an early settlement.
That said, Epiq Systems has launched IQ Review to give corporations and law firms more choice in evaluating documents, earlier. And it appears to be taking some lessons learned from TREC: incorporating human feedback into iterative search results.
IQ Review incorporates new "prioritization" technology into Epiq's document management platform, DocuMatrix. A legal expert "teaches" the software to identify documents as responsive or nonresponsive. Learning from the expert, the technology determines patterns in content across all of the data, rates each document, and fast tracks the most responsive to the beginning of the review — the result is intelligent "Prioritized Review."
By reviewing the most responsive documents first, the legal team can make decisions on strategy earlier. Time spent on documents inconsequential to a case diminishes, along with review costs.
Client testimonial:
Vince Neicho, Allen & Overy litigation support manager, says that "Cases have become more complex as potential evidence can be hidden through an elaborate maze of email attachments, large document files, and text messages. Epiq’s IQ Review helps lawyers better understand the data and achieve the best possible outcomes for their clients more quickly."
For more information:
Tel. (800) 314-5550
E-mail: http://www.epiqsystems.com/contact.php
Case in Point 2009-09-28 05:00:04
September 28, 2009
About ‘Case in Point’ – ‘Case in Point’ is a weekly cartoon series, created by CaseCentral Corporation, that illustrates the lighter side of eDiscovery. ‘Case in Point’ also runs a contest inviting anyone from the expansive eDiscovery realm – lawyers, IT staff, judges, service providers, paralegals, writers and consultants – to submit their own humorous experience or a scenario they find particularly funny. Participants may submit cartoon ideas online at http://www.casecentral.com/caseinpoint/idea for consideration. Winners will see their idea turned into a cartoon and receive a $50 gift certificate.
Permission to reproduce ‘Case in Point’ cartoons is granted on the conditions that any cartoon used is reproduced “as is” and that the re-use is not for purposes of resale or direct compensation. Please provide CaseCentral with a copy of any such use by sending an email with attached sample to: info@casecentral.com.
About the cartoonist – CaseCentral is pleased to feature Tom Fishburne as the cartoonist behind ‘Case in Point.’ See Tom’s bio here: http://www.tomfishburne.com/tomfishburne/bio.html
About CaseCentral – Case in Point is sponsored by CaseCentral. Visit www.casecentral.com to learn more about CaseCentral’s eDiscovery products and services.
Upcoming Events – October
September 24, 2009
IQPC: Information Retention & E-Disclosure Management, Europe
September 30 – October 1, 2009
Marriott Hotel
Auguste Orts 3-7/Grand Place
1000 Brussels, Belgium
K&L Gates partner David Cohen will present “Turning Theory Into Practice: Practical Steps to Take NOW to Reduce E-Disclosure/E-Discovery Risks and Costs” on Wednesday, September 30th at 11:00 AM. This presentation will provide a “roadmap” of practical steps to take when dealing with e-disclosure challenges, including improving records management and other concrete measures to reduce liability, exposure, and cost.
Click here to learn more.
Thompson Reuters' Electronic Discovery and Records Retention Conference
October 7-8, 2009
The Westin New York at Times Square
270 West 43rd Street (at 8th Ave.)
New York, NY 10036
212-201-2700
K&L Gates partner Thomas J. Smith will participate in a panel discussion, “How Much Horsepower Do you Really Need?” at 10:00 am on October 8th.
Click here to learn more.
Washington State Bar Association: 2009 Corporate Counsel Institute
October 16, 2009
Washington State Convention and Trade Center
Seattle, WA 98101
K&L Gates Staff Lawyer Beau Holt will present on the topic of E-Discovery and “what in-house counsel needs to do now” including “establishing a litigation response plan, and steps to take before litigation.”
Click here to learn more.
The Federal Bar Association, Western PA Chapter, Young Layers Division Presents: The Second FBA E-Discovery Series
Review and Analysis of Top ESI Cases
October 22, 2009 - Noon
12:00 PM
U.S. Courthouse, Third floor (Jury assembly room)
7th and Grant St.
Pittsburgh, PA
K&L Gates partner David Cohen will appear on the panel reviewing and analyzing some of the top ESI cases that every lawyer should know about.
Click here to learn more.
The Knowledge Congress Webcast Series Presents: Legal Ethics and E-Discovery
October 22, 2009
3:00 – 5:00 PM (ET)
Webcast
K&L Gates Partner David Cohen will participate in this discussion of Legal Ethics and E-Discovery.
Courtesty of K&L Gates, a $50 discount is available at registration. The necessary discount code is: klga87685.
Click here to learn more.
Failure to Timely “Re-Assess its Procedures and Re-Check its Production” upon Notice of Inadvertent Production Results in Waiver of Later Identified Documents
September 24, 2009
U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D.N.J. Sept. 9, 2009)
Defendant moved to compel the production of 214 inadvertently produced documents. Plaintiff objected, arguing that the parties’ discovery agreement precluded the waiver of privilege as to inadvertently produced documents. Noting courts’ general disapproval of “blanket” disclosure provisions and finding that the parties’ agreement did not in fact preclude waiver in all situations, the court analyzed the question of waiver pursuant to FRE 502. The court identified three categories of inadvertently produced documents based upon the timing of the notice of their inadvertent production to the plaintiff. The court found privilege was not waived as to the first category of documents (those brought to plaintiff’s attention the earliest). However, noting that plaintiff was on notice of the deficiencies of his process as a result of the first notification of inadvertent production, and that despite such notice plaintiff failed to “re-assess” its document production, the court found the privilege had been waived as to the remaining categories.
Plaintiff inadvertently produced a total of 214 privileged documents on six occasions between May 2008 and February 2009. Per the court, those productions fell into three groups: (1) documents identified by plaintiff on September 10, 2008, (2) documents identified by plaintiff’s November 21, 2008 letter, and (3) documents identified by plaintiff on June 25, 2009 or later.
Arguing against waiver, plaintiff claimed that the parties’ discovery plan operated to preclude waiver for inadvertently produced documents. The court disagreed, noting the absence of any specific clawback provision and the courts’ distaste for “blanket” disclosure provisions. Accordingly, analysis under FRE 502 was warranted.
Addressing the first category of documents as identified above, the court first laid out the appropriate analysis under FRE 502:
When deciding whether inadvertently produced documents should be returned a two-step analysis must be done. First, it must be determined if the documents in question are privileged. It is axiomatic that FRE 502 does not apply unless privileged or otherwise protected documents are produced. Second, if privileged documents are produced then a waiver does not occur unless [sic] the three elements of FRE 502(b) are satisfied: (1) the disclosure must be inadvertent, (2) the holder of the privilege or protection took reasonable steps to prevent the disclosure, and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed.R.Civ.P. 26(b)(5)(B). Plaintiff, the disclosing party, has the burden to prove that the elements of FRE 502(b) have been met. [Citations omitted.]
Finding that plaintiff had satisfied all the elements of FRE 502, the court found no waiver of privilege. Among the reasons cited in support of the finding were the substantial size of plaintiff’s production relative to the number of documents produced and plaintiff’s privilege review protocols, which included the use of trained attorneys and paralegals and the use of a “sophisticated” review program, including computer assisted QA/QC measures. (The inadvertent production was blamed in part on plaintiff’s use of this software, which was new.)
Regarding the subsequent inadvertent productions, there are several salient facts upon which the analysis of waiver turned: First, plaintiff learned of its inadvertent production for the first time from the defendant on August 29, 2008. Plaintiff responded to such notification after eight work days, on September 10, 2008, and notified defendant that Rule 26(b)(5)(B) should be followed. The documents identified at that time constitute the fist category of documents for which privilege was found not to be waived. The second group of documents was identified by plaintiff in a November 21, 2008 letter to the defendant. The documents falling into the third category were identified thereafter.
Addressing the second category of documents (brought to plaintiff’s attention in a October 23, 2008 letter from defendant and confirmed in plaintiff’s November 21, 2008 letter to defendant), the court found that privilege was waived as a result of plaintiff’s failure to take reasonable precautions to rectify its error pursuant to FRE 502(b)(3). Specifically, the court reasoned that “[a]fter plaintiff received defendant’s August 29, 2008 letter it was on notice that something was amiss with its documents production and privilege review. Defendant’s letter should have spurred plaintiff to promptly re-assess its procedure and re-check its production.” Further, the court noted plaintiff’s failure to identify the inadvertently produced documents until receipt of defendant’s letter, stating: “If defendant was able to discover an error by October 23, 2008, there is no reason plaintiff could not have done the same thing.” The court went on to note that even after receiving notice, plaintiff waited another month to confirm its error.
In further support of its conclusion that plaintiff should have re-assessed its production following notice of the deficiencies, the court cited the Note to FRE 502(b)(3) and noted that while a party is not obligated to engage in a post-production re-review to determine if privileged documents were produced in error, “the rule does require the producing party to follow up on any obvious indications that a protected communication…has been produced inadvertently.”
Finally, the court reasoned that “[i]f plaintiff had taken reasonable steps to rectify its error it would have discovered the [inadvertently produced] documents…”
For the same reasons, the court found that privilege had been waived as to all remaining inadvertently produced documents.
Accordingly, the court granted defendant’s motion to compel the inadvertently produced documents identified after September 10, 2008.
A copy of the full opinion is available here.
Elizabeth Zidones: FRCP Changes on Horizon
September 23, 2009
From Law.com: Big changes are coming to the FRCP on 12/1/09. Merchant & Gould atty Elizabeth Zidones se changes will affect timing requirements, change how some deadlines are calculated, and clarify ambiguity over e-filing deadlines.
Ex-Fund Manager Seeks to Block Evidence on E-mail Account
September 23, 2009
The Wall Street Journal , Sep. 21, 2009
By Chad Bray
NEW YORK -- Lawyers for former Bear Stearns fund manager Matthew Tannin have asked a judge to prohibit prosecutors from introducing evidence at his criminal trial regarding the erasure of his personal email account in 2008, calling it an "eleventh-hour smear."
In a letter Monday, Susan Brune, a lawyer for Mr. Tannin, said the government's evidence has failed to establish "that Mr. Tannin destroyed any documents" and Mr. Tannin and his counsel have preserved all documents.
At a hearing last week, prosecutors from the U.S. Attorney's office in Brooklyn said that they had received a letter from Google Inc. indicating Mr. Tannin's Gmail account was erased in March 2008.
Read the entire article here.