Electronic Discovery


LegalTech New York finished up earlier this week. I survived with only a minor case of technology loop, although my iPhone was begging for mercy by the end.

The conference was frenetic, to say the least. There was a lot going on, regarding a cornucopia of technological topics and tools to help lawyers. As expected, the biggest hype revolved around predictive coding and computer-assisted review.

The legal technology world has been buzzing about this stuff for a while now, and we have covered it on these pages several times before. (Here and here, for starters). At the conference, attendees got to hear from the naysayers, the enthusiasts, and everyone in between. Several panels helped explain exactly what the technology means on a practical level. And no, cyborgs will not be stealing all the contract attorney jobs any time soon.

One of this week’s highlights was a lunchtime panel featuring two prominent attorneys and a New York magistrate judge. The discussion helped clarify, demystify, and define the terms that have been making headlines (even in the New York Times) for a good part of the past year. Is computer-assisted review as scary as it seems? Of course not.

Let’s see what the panelists — and at least one irate audience member — had to say….

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Judge Andrew Peck

Keyword searching is absolutely terrible, in terms of statistical responsiveness.

– Magistrate Judge Andrew Peck (S.D.N.Y.), in a panel today at the LegalTech conference. He spoke alongside Wachtell Lipton counsel Maura Grossman and Jackson Lewis partner Ralph Losey, on a panel that aimed to demystify cutting-edge, computer-assisted e-discovery technology. Peck is a vocal proponent of computer-assisted discovery and predictive coding. He is not a fan of the slightly older keyword-searching technology.

(A few minutes later, Losey had another strong opinion to add. See what was said, after the jump.)

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Anyone who works with e-discovery has no doubt encountered the bewildering array of vendors and service providers clamoring for legal technology business. It can be confusing.

As the e-discovery industry has exploded, vendors’ roles have expanded and changed as well. Just a few years ago, it was more common for attorneys and their firms to have to piece together several vendors to form a cohesive e-discovery attack plan. These days, many service providers offer more start-to-finish options.

Even though it is all very technical, vendor work sometimes walks the line between IT work and actual lawyering. The District of Columbia Court of Appeals has become wary of discovery vendors that might offer misleading advertisements about their legal certifications. Last week the Court’s Committee for the Unauthorized Practice of Law (sounds intimidating!) delivered an opinion clarifying some rules relevant to discovery vendors.

While they were at it, the committee delivered a couple solid kidney shots. Ouch….

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Those blinking lights are important. Seriously.

I’ve been writing about electronic discovery for almost three years now. I’ve learned that most of the time, it’s not worth trying to interest non-attorneys in the subject. My friends’, family’s, and girlfriend’s eyes glaze over pretty quickly when I started mentioning the EDRM model or document review.

So when I saw the story early this morning about big e-discovery news in the litigation following a tragic plane crash, at first I thought I had misread something.

On February 12, 2009, Colgan Air Flight 3407 crashed near Buffalo Niagara International Airport in New York, killing 50 people. Later that year, authorities blamed pilot error for the crash. Unsurprisingly, families of the victims have sued the airline for failing to provide trained, capable, and rested pilots. This week, attorneys for the families released internal company e-mails that appear to show Colgan knew the pilot of the doomed flight was having serious problems.

What do the e-mails have to say?

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Last week, more than a dozen high-profile mass torts attorneys lost a San Francisco jury trial against a small technology company. The jury decided the attorneys had illegally breached a document review contract during the high-profile Chinese drywall class-action litigation.

On September 19, the 14 defendants in Cataphora Inc. v Parker were ordered to pay $317,113 to the technology company in lost profits, plus attorneys’ fees.

“These guys are the worst of hypocrites that you can possibly find,” said Roger Chadderdon, technology counsel at Cataphora. “They claim to be trying to help the little guy, but what they’re doing is trying to put more money in their own pockets. Everybody knows that, but this is a case that illustrates it beyond what I have ever seen.”

Clearly, tempers are still running hot. We’ve got more from both sides of the dispute, and a quick refresher on Chinese drywall, after the jump….

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At this point, the lengths companies go to in order to protect data, keep it secure, and prepare for e-discovery is old news. Data breaches — and the news coverage that usually follows — have frightened many companies into at least attempting to ratchet up data security policies. Likewise with retention practices. There have been enough e-discovery horror stories that most companies, and especially their lawyers, know they need to start prioritizing this stuff.

Strangely though, you don’t often hear much about data security within corporate boards. But it turns out that the boards of many multinational corporations with hundreds of millions of dollars in revenue are way, way behind the curve on data security.

Company boards are doing everything from printing out physical copies of thousands of pages of sensitive material, to sending unencrypted information to personal e-mail accounts, unsecured iPhones, and home computers. The Thomson Reuters report, released Wednesday, gives a harrowing account of disasters waiting to happen….

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The information age we live in can be a blessing and a curse. Few fields demonstrate this truth more persuasively than the realm of electronic discovery.

During a panel here at the Legal Technology Leadership Summit on the theft and exfiltration of intellectual property, the panelists discussed the exponential growth in information densities, the increasing importance of IP, and the challenge that evolving technology presents to the governing legal frameworks. As one panelist noted: “Technology leaps, the law creeps.”

What does rapidly changing technology mean for the e-discovery world? And what are some considerations that in-house lawyers should keep in mind when responding to e-discovery requests?

double red triangle arrows Continue reading “Dispatch from Amelia Island: In-House Strategies for Litigation Response”

Greetings from the Ritz-Carlton in Amelia Island, Florida. It’s lovely here (despite the presence of a few love bugs). We can see the ocean, hear the tides, and smell the salt air from our oceanfront balconies.

Three members of the Above the Law team — David Lat, Elie Mystal, and Chris Danzig — are down here to cover the first annual Legal Technology Leadership Summit. The Summit — hosted by ATL, the Electronic Discovery Institute (EDI), and the American Society of Digital Forensics & eDiscovery (ASDFED) — brings together thought leaders and decision makers from throughout the legal profession, including judges, academics, and senior in-house, law firm, and governmental lawyers.

You’ll be seeing coverage of the conference in these pages over the next few days. You can also follow the proceedings in real time over Twitter, through the feeds of our three correspondents — @DavidLat, @ElieNYC, @ChrisDanzig — or by searching for tweets collected under the #LTLSummit hashtag (by our reporters and by conference attendees).

You can read more about the Summit over at the conference website. Thanks to our distinguished speakers and generous sponsors for making this event possible.

Get excited, because the Legal Technology Leadership Summit is less than one week away. It is set to take place from September 6 – 8, on Amelia Island, Florida. You can access the full agenda here if you’d like to see the interesting programs that are in store for all Summit attendees.

It is only fitting that we would honor a leader in corporate legal technology at the Summit, so we are currently accepting nominations for the first Corporate Legal Technology Leadership Award. This award recognizes the legal department and the legal technology innovator(s) that identified a problem, championed a solution, and monitored the outcome. The individual winner of the award will receive a Dell Inspiron Duo Tablet PC + Audio Dock, as well as a plaque commemorating the award.

Corporate legal departments or the representatives of the department may submit nominations. There is no fee to enter. To submit a nomination, please complete the online form available here.

A special thanks to our generous Summit Ambassadors, who are making this event possible: Applied Discovery, Autonomy, Clearwell Systems (now a part of Symantec), Datacert, Dell, Ernst & Young, Falcon Discovery, FTI Technology, Guidance Software, Mitratech, Nextpoint, Nuix, Pangea3, Planet Data, ProSearch Strategies, QuisLex, Recommind, Robert Half eDiscovery Services, TCDI, Valora Technologies, and WestlawNext.

We would also like to thank our Law Firm Sponsors: Dorsey & Whitney, Shook Hardy & Bacon, WilmerHale, and Winston & Strawn.

Click here to register for the conference. We look forward to seeing you there.

Elie wishes he had taken the nuggets.

* What can law firms learn from Folgers crystals? Maybe how to provide legal services rich enough to be served to America’s finest corporations. [What About Clients?]

* A look at what $100,000 in law school loans could have purchased instead — e.g., 505,050 chicken nuggets from Wendy’s. [Constitutional Daily]

* What kind of “reasonable accommodations” are alcoholics entitled to in the workplace? A three-martini mojito lunch sounds good to me. [Overlawyered]

* Some thoughts from Henry Blodget on Groupon and the SEC-mandated “quiet period.” Any thoughts, readers, on Blodget’s take on attorney/client privilege? [Business Insider]

* Professor Ann Althouse on the exoneration of Justice David Prosser (noted in Morning Docket): “A justice is despised because his decisions do not please liberals, and so, without thought, they forgot about things liberals like to love themselves for caring about, such as fairness and due process.” [Althouse]

Is it wrong to find Justin Bieber totally hot? Just askin'....

* E-discovery is moving to the cloud. What are the opportunities and the risks? Ben Kerschberg and Bret Laughlin discuss. [Forbes]

* Speaking of e-discovery, the DISH Network and Redgrave LLP are sponsoring an e-discovery research and writing competition, open to law students. [dishdiscovery]

* Law librarian Joe Hodnicki weighs in on the controversy over ScamProf aka Paul Campos and his controversial blog. [Law Librarian Blog]

* If you share Staci’s opinion that Justin Bieber “kind of looks like a girl,” here’s some support for your viewpoint. [Fashionista]

* The American Constitution Society is holding an online symposium in honor of the unveiling of the Martin Luther King Jr. National Memorial. [ACSblog]

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