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!

Kroll Ontrack: THERE’S NO PLACE LIKE HOME: KANSAS COURTS ISSUE NEW EDISCOVERY GUIDELINES

by MICHELE LANGE on SEPTEMBER 4, 2013 in EDISCOVERY 

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.

Kroll Ontrack: EDISCOVERY PRICING PAINS

by MICHELE LANGE on SEPTEMBER 9, 2013 in EDISCOVERY

Recently, Casey Flaherty, Corporate Counsel at Kia Motors, authored an article about how he approaches comparing costs in the  current chaotic ediscovery pricing landscape.  Flaherty boldly asserts: “Standardizing a method for comparing EDD vendor cost projections is long past due.”  He continues by suggesting that such a cost-comparison spreadsheet is a necessary tool which should be developed and maintained by a group such as the Sedona Conference, the EDRM or the EDBP.

Flaherty’s article is evidence of the gyrations that corporations and law firms go through when analyzing ediscovery pricing.  Per page.  Per gigabyte.  Per hour.  Per day.  Per month.  Flat fee.  Annual subscription.  Kudos to Flaherty for bringing his method to light and encouraging everyone else in the industry to do the same.

It makes plain business sense to structure ediscovery pricing around transparency, and Kroll Ontrack is trying to help drive the market toward that rational ediscovery pricing panacea.  Recently, Kroll Ontrack launched a new pricing model, containing a wave of pricing options including:

1. Traditional a la carte (line-item comparisons) – traditional pricing based on different actions in the EDRM – keep the spreadsheets for those who want them
2. Total project price – all of the bells and whistles for one bottom-line project price – for those sick of fashioning “order from chaos”
3. Portfolio pricing – a monthly fee based on a revolving-door portfolio of matters limited only by capacity and duration – ediscovery pricing can really be as simple as X gigabytes for $Y/month

To be perfectly frank, in an industry where everything can change overnight, this problem has persisted for too long. That’s why allowing clients to price projects on their terms is a great first step in clarifying ediscovery pricing pains.

My other profiles on Facebook, LinkedIn, MySpace, Instagram, etc

1. https://myspace.com/jasonatchley;

2. http://instagram.com/jasonatchley;

3. https://plus.google.com/u/0/113244720168134588753/about; 

4. http://www.yelp.com/user_details?userid=NeoqIFEEU21OwQEzvWhZLw;

5. http://www.linkedin.com/in/jasonatchley/;

6.https://twitter.com/jasonatchley;

7. http://facebook.com/atchley.jason;

8. https://foursquare.com/jasonatchley;

Kroll Ontrack: SHOW-AND-TELL: EDISCOVERY ON SLIDESHARE

by JEN WIGHTMAN I remember a time not too long ago when YouTube didn’t exist, Facebook was exclusive and user-generated content was merely an idea restricted to the internet’s geekiest circles. Now, not only can we savor things like NFL Bad Lip Reading, but we can create fun stuff ourselves with simple software. Reality TV aside, user-generated content is an extremely valuable medium with uses that extend far beyond personal posts and funny videos. A wealth of information about many different topics is available in the vein of user-generated content, and great ediscovery content is no exception, whether it’s a particularly popular blog (aside from this one, of course), an informative YouTube channel, a cutting-edge podcast or—as I recently discovered—SlideShare presentations. Ediscovery Information in a Click For those unfamiliar, SlideShare is essentially the YouTube of PowerPoint presentations. Users can upload PDFs of presentations, documents and graphics to share with the online community. Kroll Ontrack’s new SlideShare account is a great resource for educational ediscovery content. Whether you missed the most recent Kroll Ontrack webinar or simply want to know more about the most salient issues in ediscovery, Kroll Ontrack’s SlideShare currently offers its most popular presentations, ranging from social media to technology assisted review, and several eye-catching infographics. For practitioners, there’s a wealth of information regarding ediscovery on SlideShare. Within a few minutes of searching I was able to find a litany of ediscovery content including: The Lorenzi Group, a digital forensics and data security consulting firm, who has over 25 presentations on data security and related topics. I also found that many SlideShares offer more than just PowerPoint presentations: Osterman Research, Inc., for example, has over 30 combined white papers, surveys, and briefs on relevant ediscovery topics. Beyond the realm of ediscovery, I also found Matthew Homann’s presentations on innovative legal practices to be a breath of fresh air. With that said, I’ll cut short my laundry list of useful SlideShares, and leave it to you to find your favorites. However, like my recent post about ediscovery podcasts, please offer your favorite SlideShares in the comments below or let me know what more you would like to see on Kroll Ontrack’s SlideShare.

Kroll Ontrack: THE CARRM: BEYOND THE TEST-DRIVE

by MICHELE LANGE Whichever name you give it – predictive coding, computer assisted review (CAR), or technology-assisted review (TAR) – predictive coding is an amazing tool in the field of ediscovery. In 2012, the EDRM published a new Computer Assisted Review Reference Model (CARRM) framework to demystify this new technique. First and foremost, the CARRM strongly emphasizes a planning process, during which the review team should: Determine the desired outcome of the predictive coding process Build rules and methods specific to the case for both human reviewers and the technology Educate the reviewers who are involved in the predictive coding process about those rules and methods Next, the CARRM identifies a process of coding documents, from which the technology learns and classifies other documents in the corpus, followed by human testing and evaluation. This process is iterative, meaning these steps should continue in a cycle until appropriate retrieval metrics (such as precision, recall and f-measure) are achieved and the initial goals are met. Once the evaluation stage is complete, the predictive coding process can end and the team may move on to the next phase of review. The benefits of predictive coding compared to human review are plentiful. Predictive coding can reduce time on administration and review, reduce the number of documents reviewed, increase the accuracy of review and even review documents quicker. The bottom line is that while ediscovery budgets are cut and data volumes are ever-growing, predictive coding can help you save time and money by: Finding the right documents quickly Sorting documents efficiently Confirming the reviewers’ work before production What to know more? Register for the EDRM Webinar, “EDRM’S New Computer Assisted Review Reference Model (CARRM)-Beyond the Test Drive,” with industry experts George Socha, Herbet Roitbat, Bob Rohlf, and myself. It should be a riveting conversation so be sure to register soon.

Kroll Ontrack: ILTA’S 36TH ANNUAL EDUCATIONAL CONFERENCE

by THOUGHT LEADERSHIP TEAM There are few places more exciting than the iconic Caesar’s Palace in Las Vegas, so when ILTA’s 36th Annual Educational Conference convened there, it was almost too good to be true. With over 200 peer-developed educational sessions and plenty of networking opportunities, it was a great opportunity to get a finger on the pulse of the ediscovery and legal technology world. ILTA 2013 branded itself “The Catalyst”, boasting that it would be a catalyst of change for attendees and it was easy to see that many will be talking about the event for days and weeks to come. The flamboyance of fabulous Las Vegas was, of course, on full display, with many booths decked out in 60s-80s music themes, a gaudy bandstand, not to mention the always-essential Madonna impersonator. ILTA put on a great show, chock full of many timely and informational sessions, ranging from “Take Charge of BYOD” to “So You’ve Done a Few Predictive Coding Projects…” Of course, no legal technology event would be complete without its own app, and ILTA’s nifty mobile app made it even easier to keep up with all the action. There was even an awards dinner so we could all fawn over the legal technology elite. ILTA was abuzz with many discussions surrounding the future of ediscovery, as the hot topics of BYOD (Bring Your Own Device) and BYOC (Bring Your Own Cloud) push the boundaries of traditional ediscovery thinking. But, the overarching theme of the sessions and the gossip of attendees continued to be the management of Big Data and Technology Assisted Review (TAR). One session, “Technology Assisted Review: A Hands-On Case Study” made obvious that while many legal professionals are now acquainted with what TAR is, too few have utilized it. It is clear that the trend of the legal technology world is leaning toward more utilization of predictive coding and TAR into the ediscovery workflow. If ediscovery has a fever, the only prescription is more TAR! Or so it seemed at ILTA. Luckily, there are great ediscovery solution providers who make navigating the murky waters of TAR and predictive coding simpler than the decision to go to Las Vegas for ILTA.