eDiscovery History: Zubulake’s e-Discovery

By : Doug Austin

In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law. When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly. A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.

eDiscovery Best Practices: You May Need to Collect from Custodians Who Aren’t There

By : Doug Austin

A little over a week ago, we talked about how critical the first seven to ten days are in the case once litigation hits. Key activities to get a jump on the case include creating a list of key employees most likely to have documents relevant to the litigation and interviewing those key employees, as well as key department representatives, such as IT for information about retention and destruction policies. These steps are especially important as they may shed light on custodians you might not think about – the ones who aren’t there.

eDiscovery Best Practices: When Litigation Hits, The First 7 to 10 Days is Critical

By : Doug Austin

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel. Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

eDiscovery Case Law: Court Allows Third Party Discovery Because Defendant is an “Unreliable Source”

By : Doug Austin

Repeatedly referring to the defendant’s unreliability and untrustworthiness in discovery and “desire to suppress the truth,” Nebraska Magistrate Judge Cheryl R. Zwart found, in Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., that the defendant avoided responding substantively to the plaintiff’s discovery requests through a pattern of destruction and misrepresentation and therefore monetary sanctions and an adverse jury instruction at trial were appropriate.

eDiscovery History: A Look Back at Zubulake

By : Doug Austin

Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212. Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data. Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case. But, do you understand just how many groundbreaking opinions resulted from that case? For those who aren’t aware, let’s take a look back.

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

By : Doug Austin

Most of the “press” associated with eDiscovery ranges from the “left side of the EDRM model” (i.e., Information Management, Identification, Preservation, Collection) through the stages to prepare materials for production (i.e., Processing, Review and Analysis). All of those phases lead to one inevitable stage in eDiscovery: Production. Yet, few people talk about the actual production step. If Preservation, Collection and Review are the “John”, “Paul” and “George” of the eDiscovery process, Production is “Ringo”.

eDiscovery Trends: Potential ESI Sources Abound in Penn State Case

By : Doug Austin

Whether you’re a college football fan or not, chances are you’ve heard about the scandal associated with the allegations of serial child abuse by former Penn State football coach Jerry Sandusky. There seems to be new developments almost daily and the scandal has already cost the jobs of the university president, vice president, athletic director and the head football coach, Joe Paterno, who had been head coach since 1965 and on the coaching staff since 1950 (most of us weren’t even born yet!). Numerous lawsuits seem highly likely to arise as a result of the alleged abuse against a variety of defendants, including the university, individuals alleged to be involved in the abuse and cover-up and also the Second Mile Foundation founded by Sandusky.

eDiscovery Best Practices: Data Mapping Doesn’t Have to be Complicated

By : Doug Austin

Some time ago, we talked about the importance of preparing a data map of your organization’s data to be ready when litigation strikes. The data map itself doesn’t have to be complicated. It can be as simple as a spreadsheet (or series of spreadsheets, one for each department or custodian, depending on what level of information is likely to be requested). Here are examples of types of information that you might see in a typical data map spreadsheet.

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

By : Doug Austin

As noted a few months ago, Forrester and Gartner have predicted big growth for the cloud computing industry, with Forrester predicting nearly a six-fold growth in nine years. In eDiscovery, these solutions support every phase of the EDRM life cycle, from Identification to Presentation. Earlier this week, the New York Times published an article entitled Tight Budget? Look to the ‘Cloud’, written by Vivek Kundra, the Obama administration’s chief information officer from 2009 until earlier this month, who discussed some significant cost savings within government agencies from shifting to cloud based solutions.

eDiscovery Trends: A Site Designed to Facilitate Meet and Confer Conferences

By : Doug Austin

The past two days, we discussed the basics of the Rule 26(f) “meet and confer” conference and details regarding the topics to discuss during that conference. Hopefully, you found that review informative. Now, as noted in a recent Law Technology News article by Sean Doherty, there’s a web application to facilitate the process to prepare for and conduct the Rule 26(f) conference.

eDiscovery Rules: ESI Topics of the “Meet and Confer”

By : Doug Austin

Yesterday, we talked about the basics of the Rule 26(f) “meet and confer” conference, Today, let’s go into more detail about the topics that are typically covered during the “meet and confer”, and why. The "meet and confer" conference focuses on the exchange of information regarding discovery and the creation of a comprehensive plan that will govern the sharing and privilege of ESI. Accordingly, the requirements of this meeting specify discussion of the following topics...

eDiscovery Rules: What’s Really Required for the “Meet and Confer”?

By : Doug Austin

Almost any litigation professional who works with eDiscovery is aware of the Rule 26(f) "meet and confer" conference, but many don't fully understand its parameters and how it affects ESI. What exactly is the "meet and confer" and what are some of its implications in regard to eDiscovery?

eDiscovery Case Law: Downloading Confidential Information Leads to Motion to Compel Production

By : Doug Austin

The North Dakota District Court has recently decided in favor of a motion to compel production of electronic evidence, requiring imaging of computer hard drives, in a case involving the possible electronic theft of trade secrets.

eDiscovery Best Practices: Avoiding eDiscovery Nightmares: 10 Ways CEOs Can Sleep Easier

By : Doug Austin

I found this article in the CIO Central blog on Forbes.com from Robert D. Brownstone – it’s a good summary of issues for organizations to consider so that they can avoid major eDiscovery nightmares. The author counts down his top ten list David Letterman style (clever!) to provide a nice easy to follow summary of the issues. Here’s a summary recap, with my ‘two cents’ on each item.

eDiscovery Best Practices: Competency Ethics – It’s Not Just About the Law Anymore

By : Doug Austin

A few months ago at LegalTech New York, I conducted a thought leader interview with Tom O’Connor of Gulf Coast Legal Technology Center, who didn’t exactly mince words when talking about the trend for attorneys to “finally tak[e] technology seriously”. As he noted, “lawyers are finally trying to take some time to try to get up to speed – whining and screaming pitifully all the way about how it’s not fair, and the sanctions are too high and there’s too much data. Get a life, get a grip. Use the tools that are out there that have been given to you for years. The ethical responsibilities of counsel these days includes competently directing and managing eDiscovery.”

eDiscovery Trends: Forecast for More Clouds

By : Doug Austin

No, eDiscoveryDaily has not begun providing weather forecasts on our site. Or stock forecasts. But, imagine if you could invest in an industry that could nearly sextuple in nine years? (i.e., multiply six-fold). Well, the cloud computing, or Software-as-a-Service (SaaS), industry may be just the industry for you. According to a Forrester report from last month, the global cloud computing market will grow from 40.7 billion dollars in 2011 to more than 241 billion dollars by 2020. That’s a 200 billion dollar increase in nine years. That’s enough to put anybody “on cloud nine”!

eDiscovery Best Practices: What Are the Skeletons in Your ESI Closet?

By : Doug Austin

Law firms and corporations alike tend to keep data storage devices well beyond what their compliance requirements or business needs actually dictate. These so-called “skeletons in the closet” pose a major problem when the entity gets sued or subpoenaed. All that dusty data is suddenly potentially discoverable. Legal counsel can be proactive and initiate responsible handling of this legacy data by defining a new, defensible information governance process.

eDiscovery Best Practices: 4 Steps to Effective eDiscovery With Software Analytics

By : Doug Austin

I read an interesting article from Texas Lawyer via Law.com entitled “4 Steps to Effective E-Discovery With Software Analytics” that has some interesting takes on project management principles related to eDiscovery and I’ve interjected some of my thoughts into the analysis below. The steps are as follows.

eDiscovery Trends: George Socha of Socha Consulting

By : Doug Austin

Today’s thought leader is George Socha. A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey. In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are eight active projects with over 300 members from 81 participating organizations. George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

eDiscovery Trends: Jim McGann of Index Engines

By : Doug Austin

Today’s thought leader is Jim McGann. Jim is Vice President of Information Discovery at Index Engines. Jim has extensive experience with the eDiscovery and Information Management in the Fortune 2000 sector. He has worked for leading software firms, including Information Builders and the French-based engineering software provider Dassault Systemes. In recent years he has worked for technology-based start-ups that provided financial services and information management solutions.



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About the Bloggers

Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at jane@litigationbestpractices.com.