Monday, September 30, 2013

Jason Atchley : Kroll Ontrack: TOP 5 EDISCOVERY CASE SUMMARIES – SEPTEMBER 2013




SALVATO V. MILEY, 2013 WL 2712206 (M.D. FLA. JUNE 11, 2013).

MOORE V. MILLER, 2013 WL 2456114 (D. COLO. JUNE 6, 2013).



Judge Shira Scheindlin’s latest opinion, Sekisui v. Hart, marks a major development for the latest footprint in spoliation case law and is sure raise eyebrows among federal rule makers tasked with reworkingFederal Rule 37. The breach of contract claim in Sekisui stemmed from the plaintiff’s acquisition of the defendants’ company.  Notably, the plaintiff sent a notice of potential claims to the defendants in October 2010, but did not file suit until May 2012. During this time frame, the plaintiff directed its vendor to permanently destroy the emails of Hart, the acquired company’s former president, and another former employee.  Additionally, the plaintiff revealed that it had not put in place a litigation hold until January 2012, nearly fifteen months after sending a Notice of Claim to the defendants. It did not notify the vendor managing its ESI of the lawsuit until July 2012, three months after the claim was filed. While a former HR executive did print (and the company later produced) hard copies of any emails “deemed pertinent to the company,” the plaintiff lost an undeterminable amount of ESI associated with Hart and the other former employee. Crucial to the court’s spoliation analysis was that the destruction stemmed from the plaintiff’s business-level decision to streamline business operations.
Judge Scheindlin cited Residential Funding Corp. v. DeGeorge Financial Corp. to begin her analysis. To warrant an adverse inference instruction, a party must establish three things:
  • Control and a duty to preserve (not disputed here)
  • Culpability by the destroying party
  • That the destroyed evidence was relevant
Prominent ediscovery Magistrate Judge Frank Maas, wrote the underlying opinion denying sanctions. While he reasoned that the conduct may have risen to the level of gross negligence, he found that sanctions were not warranted because the defendants failed to show that they had been prejudiced by the destruction of ESI.
Judge Scheindlin departed from the Magistrate Judge’s analysis at several points of the opinion. Chastising recent proposed amendments to FRCP 37(e),  the court again cited the Residential Fundingdecision to state that the state of mind factor is established when the destruction was intentional or even negligent.  Because the plaintiff’s employee directly requested the deletion of ESI, Scheindlin found the destruction of the emails of the two key custodians “willful” and “intentional.” As such, Sekisui’s good faith excuse—to save space on its servers—was irrelevant.
Turning to the relevancy of the missing ESI, the court quickly found that “it is not difficult to envision” many ways in which the destroyed emails “might be relevant.” While Magistrate Judge Maas also came to this conclusion, he ultimately declined to impose sanctions because the defendants could not show that any emails were, in fact, missing. Judge Scheindlin took issue with this analysis and centered her discussion on the risk of loss rationale lying at the heart of spoliation case law. The fact that potentially relevant information was willfully destroyed is enough to presume prejudice to the innocent party (for the limited purpose of determining whether an instruction will be given)—flipping the burden the other way “would allow parties who have destroyed evidence to profit from that destruction.” As Judge Scheindlin noted, the defendants can no longer use the emails to show compliance with the terms of the contract that was allegedly breached. Because the plaintiff “willfully and permanently destroyed the ESI of at least two key players,” failed to impose a timely litigation hold, and waited too long to inform its vendor of its obligations, the court granted the defendants’ request for an adverse inference instruction.  Stay tuned for Part II of this blog:  The Implications.




What level of culpability should trigger sanctions? Negligence? Gross negligence? Bad faith? What arises to the level of prejudicing the non-producing party’s case? This case brings to light two conflicting perspectives on a critical spoliation issue—one that has the full attention of federal rule makers addressing potential amendments to Federal Rule37(e). Magistrate Judge Maas opines that sanctions are not appropriate if the non-producing party does not “appear” or cannot show that their case has been prejudiced by the loss of information – even if the actions taken are determined to be grossly negligent. Judge Schiendlin, on the other hand, basically states that bad acts should not go unpunished and that (absent some of the hardcopy documents in this case) it could be difficult for the non-producing party to show that they have been prejudiced – you cannot build an argument or a case around information you cannot access, i.e. how do you know what you don’t have if you don’t have it?
Rule 37(e) currently “requires” the showing of “exceptional” circumstances as well as evidence that the loss of ESI occurred as the result of “routine, good-faith operation(s)”. The issue has been that the application of the rule has been inconsistent. As a result of these inconsistencies, the proposed changes to FRCP 37(e), include new subsection 37(e)(1)(B)(ii) that would allow the imposition of sanctions if the court finds a party’s actions to have “irreparably deprived a party of any meaningful opportunity to present or defend against the claim(s) in the litigation.” Under the amended rule, the party seeking sanctions bears the burden of showing that the loss of the identified data “irreparably” impacts their ability to advance their case or assert certain defenses. This is a significantly higher standard than exists today and will likely lead to a very narrow application of the rule. The standard under subsection 37(e)(1)(B)(ii) is more onerous than the “substantial burden” standard proposed for revised rule 37(e)(1)(B)(i), which requires a showing of bad faith or willfulness. Further complicating the analysis, the proposed amendments also remove the original language permitting the imposition of sanctions against the non-producing party where the court finds that the lost information “reasonably should have been preserved by the party.”
In sum, it is interesting to read the divergent viewpoints of two members of the bench who are well versed in ediscovery (Maas v. Schiendlin). It will be even more interesting to see how the proposed rule changes (assuming they are approved) impact the analysis and whether we will actually see more consistency regarding the imposition of sanctions.   Be sure to listen to our latest podcast where Adam and Catherine Losey explore this case in more detail and examine how it could affect litigants across the nation.

Monday, September 23, 2013

Jason Atchley: Kroll Ontrack: Manage Risks to Reap Social Media Rewards

August/September 2013
Jodi Vickerman, Kroll Ontrack
The benefits of social media are considerable, but there are risks associated with their use for marketing or inter-company communication. Social media sites are gold mines of evidence for data investigations and litigation. Uniform standards with regard to discoverability, preservation, collection and authentication have yet to emerge.
While courts are generally settled that social media is discoverable, case law is undecided as to when and under what circumstances. Many state and federal courts have dismissed social media privacy claims, reasoning that voluntarily posting an array of personal information to a website precludes any expectation of privacy. While most case law suggests greater permissiveness for social media and a strong likelihood that privacy concerns will be outweighed by the relevance of the information, a clear standard has yet to emerge. Until such a standard emerges, organizations should anticipate such requests and have a plan in place.
Since data from social media is generally discoverable, all discovery obligations apply, including the duty to preserve. Regardless of the collection method, it is imperative to document the process thoroughly and obtain the user’s consent or a court order before collecting. Usually production of social media data involves the user of the site, not the social media companies.
Authenticating evidence from social media sites is a growing issue. Legal professionals often have to take measures to eliminate the possibility that someone other than the account owner posted the information.

Jason Atchley: Kroll Ontrack: Metadata… What is it? Why and How Do We Preserve It?

What is Metadata?
Do a search on “Metadata” on the internet and the most common definition you may find is “Metadata: The data of data.” This is true, but what makes up this “data” of data?  Think of the title of your car. From the title of your car you can find out the make, model, owner, year.  This is your car’s “metadata.”
Now, let’s look at the metadata of a Microsoft Word document.  The metadata in a Microsoft Word document is more commonly known as the document’s “properties.”  Document properties should not be confused with the program’s properties, where a user can change the settings of the application. A document’s properties lists its metadata.  Some examples of metadata in a Microsoft Word document are your name/initials, your organization’s name, file type, document versions, file location, create date, last modified date, editing time, number of pages and total size of the document.  This information stays with the document and is used by your computer and other software as a reference guide.
For another perspective, let’s look at the metadata from a 2010 Microsoft Exchange e-mail message. I’m sure by now you could point out some of the obvious types of e-mail metadata: who the message was from, who the message was originally sent to, the date, subject and body, but there’s more! The Exchange server, the originating IP address and the message ID are just a few more examples of what important metadata is attached to an e-mail. Altogether there are 26 different types of metadata attached to one e-mail message. To see them all visit
Why do we preserve Metadata?
First, what is metadata preservation? Metadata preservation is the ability to save and export the contents and metadata of a document or piece of data. This task has gained focus in recent years due to electronic communication becoming so vast. According to a report by The Radicati Group, the number of worldwide e-mail accounts is expected to hit 4.1 billion by 2015. (Radicati & Hoang, 2011) Of the entire world’s e-mail population, the corporate e-mail population makes up 25 percent.  That’s over 1 billion accounts by 2015!
Just like the information from the title of your car, metadata from electronic data can be changed or altered. E-mails and other data are evidence in legal cases. And, with all the e-mail and corresponding metadata to collect, legal teams and IT departments scramble to do so without disturbing or altering the crucial metadata needed to prove the legitimacy of the data.
How do we Preserve Metadata?
If Legal came to you for a copy of a Word document, how would you go about saving it so that the metadata would be properly preserved? Using just a Windows OS to copy and save a file would not be a sufficient way to preserve the metadata. When copying a file using Windows, the create date or “Time Stamp” of the copied file will change to the current date, thus altering the file’s metadata. There are software tools that will safely collect this type of data without disturbing the metadata.
What about the e-mail messages that Legal is asking for? There are tools available that maintain data integrity by performing read-only operations on the source files throughout the collection process – no editing functionality, just the ability to browse, search, preview, and export.
According to Michele Lange, Director of Thought Leadership, Kroll Ontrack, “While the term metadata is not explicitly included in the Federal Rules of Civil Procedure, metadata is clearly included within the definition of ‘electronically stored information,’ and therefore must be preserved and produced in the context of civil litigation. This information is critical to searching, organizing, and authenticating volumes of digital information during review and production. Based on an established body of ediscovery caselaw, failure to handle metadata in the same manner of the text of a document or email will result in sanctions.”
Radicati, D. S., & Hoang, Q. (2011). Email Statisics report. Retrieved August 1st, 2013, from Radicati:

Friday, September 20, 2013

Jason Atchley: Kroll Ontrack reveals five common IT administrator mistakes that lead to data loss

June 4, 2013 – Kroll Ontrack, the leading provider of data recovery, e-disclosure andinformation management products and services, today announced five of the most common mistakes made by IT administrators that can lead to data loss. Given the complexity and capacity of advanced storage devices and the criticality of organisational data, documentation and best practice implementation are critical when it comes to protecting data.
“With data stored in multiple locations and on multiple devices, loss at any level can be very detrimental, putting IT administrators in the hot seat to provide fast issue resolution and minimise downtime,” said Robert Winter, chief engineer, Kroll Ontrack. “Under such extreme pressure, IT teams may be overlooking established ITIL best practices for IT service management in the pursuit of urgent issue resolution, leaving organisations at risk of data loss.”
To reduce the potential for critical data loss when managing IT processes and responding to IT issues, avoid falling prey to these common IT mistakes:
  • Failure to document and execute established IT, retention and backup procedures. Kroll Ontrack sees it time and time again. A test server moves into production, but no one has informed IT that it is now capturing valuable data, and the data is not being backed up. Or, inaccurate documentation has IT administrators decommissioning a SAN that is actually still in production, resulting in data loss.
  • Failure to keep OS and anti-virus software up to date. Days are busy and resources are stretched, but failing to update OS security patches and anti-virus software can result in treacherous security breaches and extensive data loss.
  • Failure to backup effectively. In a recent survey of Kroll Ontrack data recovery customers, 60 percent had a backup in place at the time of loss, but the backup was not working properly at the time of loss. Failure to establish and follow backup procedures, or test and verify backup integrity is a guaranteed recipe for data loss.
  • Deleting data that is still in active use. This may be surprising, but you’d be astonished how often Kroll Ontrack performs data recovery on tapes or server networks that are thought to be out of use, but still contain active data. Do your due diligence and ensure the data you delete is no longer of value.
  • Failure to test IT security policies. Even the smallest failure in IT security can lead to devastating results, including critical data loss and huge expense. Restrict IT administrator passwords only to required users, and change them when an IT administrator leaves the company. Some of Kroll Ontrack’s most compelling data loss cases are the result of a disgruntled employee with a live password intentionally deleting large amounts of critical company data.
Even the most seasoned IT teams will eventually face urgent issues and need to make quick decisions on how to respond and proceed. Follow these best practices to ensure the best chance of effective resolution and reduce the risk of data loss:
  • Take considered action. Don’t panic; make informed decisions when determining a resolution. Consider repercussions and weigh consequences. Rash decision-making may result in more data loss and downtime, not to mention cost and resource overload. If data loss happens, don’t restore data to the source volume from backup – it is where the data loss occurred in the first place. And, don’t create new data on the source volume – it could be corrupt or damaged.
  • Be confident in your skills and knowledge. You are part of the solution, not part of the problem. When pressured by organisation leaders to get systems up and running at any cost, advocate as a subject matter expert. Help leaders avoid making decisions that do more harm than good. When specifically faced with a possible data lost event, take the volume off line, and be quick! Data is being overwritten at a rapid pace. And, don’t format the volume to resolve corruption.
  • Have a plan. Follow established ITIL processes and ensure data center documentation is complete and revisited often to ensure it is up to date. In particular, do not run volume utilities (CHKDSK/FSCK) or update firmware during a data loss event.
  • Know your environment (and your data!). Understand what your storage environment can handle and how quickly it can recover. Know what data is critical or irreplaceable, whether it can be re-entered or replaced, and the costs for getting that data up and running to a point of satisfaction. Weigh the costs and risks when determining what is most urgent – getting your system up and running quickly or protecting the data that is there.
  • When in doubt, call a data recovery company. While your OEM may be a good starting point, the value of your data and the potential for data loss when getting your system back up and running may not be top of mind. Be sure to consult a reputable data recovery company if concerns over data loss potential arise.

Jason Atchley: Kroll Ontrack expands DIY data recovery software

Kroll Ontrack expands DIY data recovery software to include data protection and destruction functionality

Ontrack EasyRecovery 11 empowers users to protect, recover and permanently destroy data, including virtual data

 17 September, 2013 – Kroll Ontrack, the leading provider of data recovery, information management and e-disclosure products and services, today announced the availability ofOntrack® EasyRecovery™ version 11 software.  Ontrack EasyRecovery 11 is a comprehensive solution for do-it-yourself (DIY) data recovery, data protection and data destruction. It includes new S.M.A.R.T. scan technology to monitor the health of data storage media, the ability to permanently delete data at the file/folder level as well as powerful data recovery functionalities, including for virtual environments.
“Organisations as well as home users want cost-effective, DIY solutions to manage data across the information lifecycle,” said Phil Bridge, managing director, Kroll Ontrack UK. “Ontrack EasyRecovery 11 bolsters its data recovery functionality to also help users proactively protect against future data loss and conduct secure, permanent data deletion, even in virtual environments.  This is the all-in-one tool we think users will find pays for itself immediately.”

Ontrack EasyRecovery 11 software feature enhancements include:

  • S.M.A.R.T. Scan: Self-Monitoring Analysis and Reporting Technology (S.M.A.R.T.) Scan empowers IT professionals and home users to proactively monitor hard drive health to prevent downtime and data loss.  In seconds, S.M.A.R.T. Scan identifies the amount and type of data being used, the condition of sectors, and other critical hard drive metrics (read error rate, spin-up time, reallocated sector count, seek error rate, spin retry count and temperature), allowing users to make informed decisions about whether to repair or replace hardware, budget for new hardware to mitigate a data loss situation, or simply clean out hard drive space.
  • Permanent Data Deletion: Unlike standard data deletion methods that often leave data still recoverable, Ontrack EasyRecovery permanently deletes data at the file and folder level or across an entire drive at a much lower cost than other permanent erasure solutions.  Whether retiring end-of-life computers or freeing up disk space, permanent data deletion mitigates the risk associated with lingering digital footprints.
  • DIY Data Recovery and Permanent Deletion in Virtual Environments (Enterprise version only): To assist IT professionals with data recovery and deletion in virtual environments, Ontrack EasyRecovery supports the recovery of lost or deleted virtual data and offers permanent and secure deletion of virtual files and folders.

“IT administrators and developers are increasingly utilising virtual environments like VMware® Fusion® to run and toggle between multiple operating system platforms, consolidating an enormous volume of data,” said Bridge. “Ontrack EasyRecovery Enterprise is easy-to-use, and supports data recovery in such virtual environments, but also allows IT professionals to permanently delete virtual files and folders, protecting organisations from having critical data fall into the wrong hands.”
Installation of Ontrack EasyRecovery is fast, with most users recovering data in minutes.  The powerful scanning engine builds a file list of all recoverable files from local/external hard drives (HDD/SSD), optical and digital media, iPods, tablet devices and mobile phones that work as removable storage and disk image files. Recoverable files can be previewed and all recovery operations are secure.
Ontrack EasyRecovery is offered in three editions.  It is available via an annual, renewable license, which gives users the benefit of performing unlimited recoveries from local storage, and external media, and the tool works on all drive capacities.
  • Ontrack EasyRecovery Enterprise: A network recovery support solution for companies that need to protect multiple workstations.  Key capabilities include: RAID recoverability for both hardware and software, VMware support for recovery and permanent data deletion, network support for recovering remote systems, and advanced features consisting of proprietary diagnostic utilities and tools.
  • Ontrack EasyRecovery Professional: A business tool equipped with data protection, recovery and eraser tools, including a deep scanning utility suitable for all recovery situations as well as advanced configuration settings.
  • Ontrack EasyRecovery Home: A comprehensive tool for home users who need a quick and easy-to-use tool to protect, recover or erase digital photos, movies, music and important documents.  The software allows for recovery from local hard drives, including emptied recycle bins and trash, and supports most media types: hard drives, optical and digital media.

Wednesday, September 18, 2013



Recently, while digging through pages of informational content on the state of electronic discovery, two things became abundantly clear: first, litigation costs are on the rise as “Big Data” continues to get bigger, and second, practitioners must conduct more efficient and cost-effective discovery to navigate exploding data volumes. It is wonderful to have access to so much data that we can all start evaluating our market, but as I looked through the data, quite a bit of it didn’t have much in the way of source details. How much of this was really just “heard it through the grapevine” vs. fact-based analysis?
I don’t dispute the validity of these two general claims asserted in most informational content, but I thought it would be useful to dive into those claims a bit more and find some numbers to back them. With just a bit of digging, I came across some interesting stats on the state of ediscovery and predictions for the future:
  1. For litigation, the stakes are rising. In Fulbright & Jaworski’s Ninth Annual Litigation Tends Survey Report92% of the nearly 400 responding organizations anticipate the same amount or more litigation in the next year, up from 89% last year. Among those respondents, 54% of them reported spending more than $1 million on litigation expenses (which exclude the cost of settlements and judgments), which was up from 46% in 2010. Furthermore, the number of respondents facing one or more lawsuits with more than $20 million at issue increased across the board from last year. While some of these increases are marginal amounts, the overall amount and cost of litigation appears to be trending up.
  2. Ediscovery is growing at a fast pace. According to a report published by Transparency Market Research, the global ediscovery market is expected to grow to $9.9 billion by 2017—a compound annual growth rate of 15.4% from 2010, where the ediscovery market was worth $3.6 billion. The United States ediscovery market alone is expected to grow from $3 billion in 2010 to $7.2 billion in 2017, thereby accounting for nearly three-quarters of the global market. Although the U.S. will account for the majority of the market, the international market is expected to see a 23.2% CAGR between now and 2017.
  3. Review is the most expensive portion of ediscovery by a longshot. According to Where the Money Goes: Understanding Litigant Expenditures by the Rand Institute, review accounts for approximately73% of all ediscovery production costs, and outside counsel amounts to approximately 70% of all ediscovery costs. As data proliferates, reducing the amount of time spent on review will likely be the key to controlling costs.
While none of these numbers are necessarily groundbreaking, they provide some backing to claims that costs are on the rise and that practitioners must increase ediscovery efficiencies. However, these numbers are merely a drop in the bucket, and I highly encourage readers to look into each of the studies I’ve mentioned to gain a better understanding of where ediscovery is going.

Jason Atchley: Kroll Ontrack: TOP 5 EDISCOVERY CASE SUMMARIES – SEPTEMBER 2013





SALVATO V. MILEY, 2013 WL 2712206 (M.D. FLA. JUNE 11, 2013).

MOORE V. MILLER, 2013 WL 2456114 (D. COLO. JUNE 6, 2013).

Friday, September 13, 2013

Kroll Ontrack: iPhone 5S with Touch ID could improve BYOD security

The unveiling of the new Apple iPhone 5S and 5C was met with euphoria online yesterday (September 10th).
At an event in California, the tech giant showcased its latest gadgets in a bid to take more control of the market and reduce the commercial threat of rivals such as Samsung and Nokia.
The 5S features a fingerprint sensor, which is integrated within the phone to help identify the user, while the 5C features a plastic back and a choice of colours.
Both these handsets offer different pros and cons, but it is the 5S that could unlock new security possibilities for businesses, especially those that have rolled out their own bring your own device (BYOD) plans.
In an article for ZDNet, tech expert Adrian Kingsley-Hughes claimed that the Touch ID fingerprint reader will help to allay the worries of IT admin staff, who are often battling to find efficient security solutions.
"Touch ID will also bring two-factor authentication to the iPhone, combining something you know – a passcode – with something you have – your fingerprint – to dramatically boost security. This puts an extra level of security between users and the corporate network for enterprise and BYOD users," Mr Kingsley-Hughes explained.
He believes that Apple introduced the capability in an effort to combat the rising levels of iPhone crime.
However, the specialist lamented the fact that the feature is only available on the iPhone 5S, claiming that it is a "a shame" that users of the 5C are left without the groundbreaking technology.
Along with new innovations such as Apple's latest feature, businesses can boost their security plans by introducing data recovery policies.
By using this approach, any information that goes missing as a result of theft, error or a power outage, can be easily restored.
This is especially useful for particularly sensitive data, which must be protected at all costs from unauthorised personnel.
Complex data recovery requires expertise. Speak to the data recovery industry pioneers at Kroll Ontrack for free advice to investigate options to recover from any data loss type, system or cause. 
Posted by Polly Button



Leaving little room for interpretation, the court in Coquina Investments v. Rothstein, stated that the defendants’ litany of ediscovery project management pitfalls (which involved over 200 attorneys across two firms) culminated into a “case of too many cooks spoiling the broth.” While Coquina Investments involved format of production issues, the same rationale applies when deploying trainers in technology-assisted review (TAR) —too many trainers can lead to inconsistency and poor machine learning.


Using TAR in litigation is strikingly similar to working in a professional kitchen. There are many parts moving on parallel tracks. Just like a pastry chef may begin working on dessert while a grill chef prepares the main dish, you may have reviewers allocated to train a recently found hard drive while a sub-team performs corrective training on a production set. And above all else, in either scenario, nothing leaves the kitchen without a taste test (quality control). But perhaps the most difficult task involves assigning appropriate roles to a diverse cast of employees during the stages of machine training.
  • Lead Attorney: The Chef de Cuisine—in charge of all things related to the kitchen. This role involves making executive decisions like when to stop review, how to provide additional training and who will train the machine.
  • Subject Matter Experts (SMEs)The Sous-Chefs—second-in-command to the Chef de Cuisine. These are attorneys that have a firm knowledge of the nature of the case and the issues involved. They are capable of making high-level decisions and have an expansive knowledge of the dispute.
  • Contract AttorneysThe Chefs de partie—line cooks responsible for certain areas of production. These are attorneys who are comfortable and trained on the issue at hand, but do not have the level of knowledge possessed by Subject Matter Experts.


The Chef de Cuisine works closely with the Sous-Chefs to ensure that everyone clearly understands the basics of the recipe so that when the Chef de Cuisine (the Lead Attorney) is out of the “kitchen” the quality of the output remains constant.
When it comes to dedicating a team of SMEs to train the system, the adage “less is more” carries the day. As discussed in a document produced by the TREC 2008 Legal Track, determining whether a document is responsive or not responsive is a deceptively subjective process.  Lawyers “draw lines”—often at different places—across a number of determinations like “the nature of the risk posed by production, the party requesting the information” and the willingness of the production party to face a challenge for underproduction. Because the risk of inconsistencies in deciding responsiveness is exacerbated by the introduction of more trainers, rarely will you want more than five SMEs training the system. The restaurant owner mutters, “but my project is big, there is no way that I can rely on only five reviewers.”  Generally, two to five reviewers can handle the targeted review load for even a very large project. The total amount of training documents will vary depending on if you plan to “seed” the system (and how much “seeding” you plan to do), the number of documents in your data set and your desired confidence level. Ultimately, responsiveness decisions made on this fraction of documents will be extrapolated to all remaining documents in the data set; it becomes critical that the SMEs are in sync with the goals and structure of the case.


While the ideal structure for deploying this handful of SMEs is still up for debate, there is common consensus that there must be some process in place to arbitrate consistency when responsiveness disputes arise. I’ve seen some interesting hierarchical training structures over the years designed to handle training disputes. These are some of the most common:
Training Structures of technology-assisted review
Finally: Tasting the Broth
An effective document review and an efficient kitchen both rely upon QC measures to ensure quality and consistency of output. A well-designed plan for validating the automated technology-assisted review output is key to knowing when to stop training for quality and when the documents are ready for consumption at the next stage of the case. Where the Chef de Cuisine is responsible for ensuring that only quality dishes leave her kitchen, the Lead Attorney is also responsible for the quality of the data in her case. Only when quality control measurements reflect defensible levels of recall and precision will a Lead Attorney be in a position to move beyond first-pass review and plate the production for the requesting party—Bon Appetit!
To gain hands-on TAR experience, register now for the newest educational course offered by Kroll Ontrack, TAR Learning Labs.  The next Learning Lab is coming up in Minneapolis, MN, in early June.  Sign up soon, space is limited!



In our ever-shrinking, interconnected world, it is imperative that legal practitioners establish expertise in international ediscovery law. One of the most dramatic evolutions in ediscovery is occurring in the Asia-Pacific region (APAC).
As in the U.S., several APAC countries have created special rules for the discovery of electronic data. Hong Kong, Singapore and Japan have (or are in the process of) adopted data privacy regulations. Hong Kong uses traditional English discovery law, which makes Hong Kong the APAC country most amenable to American ediscovery efforts. Singapore is equally as advanced, given its recent adoption of aggressive measures to become the premiere dispute resolution hub of the region. Japan has likewise begun deliberations on the implementation of ediscovery laws, but the Japan Privacy Act permits the conditional transfer of personal information from a corporate entity to a third party.
Perhaps the most challenging ediscovery environments are those of China and South Korea. In South Korea, ediscovery law is still relatively non-existent. China, on the other hand, deals with data protection and privacy issues on a piecemeal basis, and a central framework for governing ediscovery matters has yet to be established.
Handling these APAC ediscovery issues seems like a daunting task, but here are seven practical tips:
 1. APAC Ediscovery Goes Beyond Translation
Even a U.S. attorney proficient in an Asian language will struggle with APAC ediscovery because of vast differences in legal systems. Most APAC companies cannot fathom why an American court would require a party to collect and exchange massive amounts of data.
2. Be Cautious of Nationalist Challenges
Strong nationalism may thwart U.S. litigation collection efforts, as parties question why APAC privacy considerations do not trump U.S. discovery laws.
 3. Capture Full Forensic Images and Conduct Client Interviews
Because of geographical and nationalist challenges in APAC, a lawyer cannot risk an insufficient collection. As such, active data capture is not recommended in the APAC region. Along the same lines, it is important to ask custodians for all spelling variations of their name during the client interview.
 4. Watch for International Data Nuances
In the APAC region, software is often vastly different from U.S. software. Furthermore, multilingual software platforms generate different metadata fields than U.S. software platforms. Finally, use of free email packages is more prevalent, and an attorney may need to collect ESI from several email systems.
 5. APAC Companies Tend to Encrypt More Data
Build a workflow into collection and review for handling password protected documents. Keep a list of passwords found during document review, and be prepared to use password cracking software.
 6. Don’t Overlook the Paper
Unlike in the U.S., APAC businesses still rely heavily on paper documentation. Pay special attention to paper in the APAC region, given that paper sizing and hole punching may be different. Optical Character Recognition (OCR) is often not available for many languages.
7. Make Friends and Work with Local Counsel
Perhaps most importantly, local counsel experienced in ediscovery collections or local service providers can greatly assist American attorneys by acting as a mitigating party, explaining sovereignty issues, integrating paper and data into one database, and collecting data before spoliation occurs.
Overall, APAC ediscovery law has proven to be extremely agile; thus, it is important for practitioners to keep afloat in these ever-changing waters.
For a top-notch overview of international ediscovery laws, check out this global ediscovery infographic.

Thursday, September 12, 2013

Football time in Texas!

I love football season! We have our oldest son's game tonight, our next oldest tomorrow and our third son's game on Saturday! And then we have Longhorn games and Cowboys games!!! We will be tailgating tomorrow, Saturday and Sunday! It is a beautiful time to be a Texan!

Wednesday, September 11, 2013



Cooperation, proportionality and efficiency. Oh my!
One of the first lessons we are taught as a child is how to share. Unfortunately, for decades, the opposite has been drilled into litigation professionals. Judicial patience has worn thin and judges have taken it upon themselves to re-teach lawyers the crucial lesson of cooperation. In Alford v. Rents, the court did not hesitate in making two attorneys personally liable for a monetary fine of $3,750 for a “conscious effort to maximize litigation” and making it as “unpleasant and expensive as possible.” Indeed, the exasperated warning of the court in B&B Hardware, Inc. v. Fastenal Co., that parties stop behaving as “armed combatants” and more like “professionals”, is no longer an aberration but rather common.
It was with concerns in mind such as these that the United States District Court for the District of Kansas appointed the Rule 1 Task Force who recently published new guidelines for ediscovery. The Task Force, a committee of three lawyers and two federal judges, is dedicated to strengthening Rule 1 of the Federal Rules of Civil Procedure which calls for litigation to be handled in a “just, speedy, and inexpensive” way.  While the guidelines are not binding, lawyers would do well to follow them.
In an introduction aimed at highlighting the importance of cooperation in the new guidelines, the Task Force explicitly endorsed the Sedona Conference Cooperation Proclamation and noted that they have already been adopted by seven Kansas judges. Throughout the guidelines, the Task Force bade counsel to “engage with opposing counsel in a respectful, reasonable, and good faith manner.”  The Task Force also recognized that the discovery of ESI “is unduly expensive if not managed properly.” Therefore, they recommended that counsel become knowledgeable about client’s information management systems before the discovery conference so they can effectively discuss the storage and retrieval of the ESI. The guidelines also noted that the parties should presume that the producing party will bear all costs for “reasonably accessible ESI” and that there will be cost-shifting for ESI that is not reasonably accessible.
The guidelines do not endorse any one method of reviewing documents, but the Task Force did point out that the proportionality principle must be considered and parties must confer and agree on a “reasonably specific protocol for retrieving and producing ESI.” With this in mind, the Task Force recommended that the parties agree on a neutral vendor and/or use one search protocol to reduce costs, noting, “an attorney’s representation of a client is improved by conducting discovery in a cooperative manner.
Whether or not your practice or docket brings you to litigate in the land of Dorothy and Oz, Kansas’ new approach to ediscovery will likely serve as a template for other jurisdictions across the country. To keep up on ediscovery developments in Kansas and other jurisdictions across the United States, visit the ediscovery Local Rules & Statutes guide.  Further, for more information on cooperation and the ethical challenges of ediscovery, check out a recent presentation Ethical Challenges in Ediscovery.