"One Ring to Rule Them All?" E-Discovery Search Methodology in Patent Litigation in Light of Recent Model Orders and Case Law

Two Model Rules from the E-discovery-Kings under the sky:
Five or eight custodians for Tech-Lords in their courts of stone;
The vast production of metadata, perhaps doomed to die;
Five or ten search terms for the Dark Lord's e-mail on his dark throne
In the Land of Litigants where the patent Trolls lie.
But is there One Ring to rule them all? One Ring to find them?
One Ring to search them all and then produce and bind them,

In the Land of Litigants where patent cases lie?

 

"It's a dangerous business, Frodo, going out of your door . . .You step into the Road, and if you don't keep your feet, there is no knowing where you might be swept off to.”
              -- J.R.R. Tolkien, Lord of the Rings: The Fellowship of the Ring

Somewhere along the road of litigation and technology, e-discovery's All-Seeing Eye grew bigger than its stomach. Overall, only .0074% of documents requested and produced in litigation (less than 1 in 10,000) wind up on trial exhibit lists.  Still less are actually used. For e-mail, hotly demanded due to the hopes of finding a smoking gun in informal and hastily-sent communications, the proportion is even lower. This trend is especially concerning in intellectual property litigation -- patent cases in particular.

To combat this trend, two sets of courts -- let's call them the Fellowship of the E-Discovery Kings -- recently set on journeys to narrow the range of the All-Seeing Eye in patent litigation, issuing similar and helpful Model Orders for e-discovery to curtail mass and unnecessary production.  But whether there is really One Ring to Rule Them All when it comes to search methodologies -- one workable solution -- may not be as clear as the E-Discovery Kings propose.

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The Search for Search Standards: The Hunt at DESI IV

What makes an e-discovery search legitimate and defensible?

While virtually every case involves a search for relevant electronically stored information ("ESI"), there is no industry-based definition or measure of a “legally defensible” search. Reminiscent of Supreme Court Justice Potter Stewart's famous quip, some think we know a good search “when we see it,” but the simple and embarrassing truth is that we do not have an operative definition of search acceptability. The lack of any such industry standard for searching and finding ESI in a case wreaks havoc in the field and leaves it to courts to determine, on a case by case basis, whether a particular search passes muster. Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.d. 251 (D. Md. 2008).

But while judicial officers are many things, they are not search experts. United States v. O’Keefe, 537 F. Supp. 2d. 14 (D.D.C. 2008); Equity Analytics, LLC v. Lundin, 248 F.R.D. 331(D.D.C. 2008). In fact, many judges were elevated to judgeship years or even decades before ESI became prevalent, and thus lack any practical experience in searching for, processing, or producing ESI. Putting the question to the courts will therefore result (and has resulted) in disparate answers that vary from jurisdiction to jurisdiction depending both on how the search issues are presented, and on the quality and quantity of resources each side brings to the court. Do we want an approach that may lead to different search standards, say, in a federal court in Chicago versus a state court in Los Angeles?

The risk is simply too great and the issues too pressing, to allow a generation or two of common law decisions across multiple jurisdictions to be cobbled together to shape an overarching definition of a "good" search that counsel and clients can rely upon -- one that will stand up to judicial scrutiny.  That's where "ICAIL," the International Conference of Artificial Intelligence and Law, and its Discovery of Electronically Stored Information (DESI) Workshop, comes in.

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Tools for Evaluating and Selecting E-Discovery Vendors

Helpful, effective guidance on evaluating and selecting e-discovery vendors is rare. For one, the constant development of technology makes it difficult to keep up with the latest vendor offerings. Not to mention that more vendors pop up on almost a daily basis.  Court rulings also play a role in changing the e-discovery landscape and therefore the tools needed to keep up with it.

On the scholarly end, The Sedona Conference® published a white paper on e-discovery vendor selection (June 2007), and Gartner, Inc. offered a similar guide for attorneys and litigation support professionals (Dec. 2009). Gartner's guide also provided a market rating on 18 of the biggest players in the e-discovery industry. Some of the important evaluation criteria considered in both reports include:

  • Project identification (scope of work)
  • Vendor's viability (business organization, office locations, sub-contracting, staffing, technical expertise, conflicts, financials)
  • Vendor's market understanding and sales strategies
  • Vendor's experience or work quality
  • Customer feedbacks or client references
  • Products and services
  • Products support and maintenance (document repositories, media type, project/data security, recovery, forensics, project/records management, internal/external IT infrastructure integration)
  • Pricing
  • Delivery (deadlines, project scope changes)

The The Sedona Conference® 2007 includes a sample decision matrix to weigh various factors that are critical to project success.  The 2009 Gartner report provides a rating summary for reviewed vendors. 

But despite these available, helpful guides and road maps, it is still a time-consuming process to conduct internal audits, compile RFI (Request for Information) and RFPs (Request for Proposals), evaluate responses, and utlimately select the appropriate vendor(s) to handle the project.

One possible solution?  Enter Apersee.

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Man vs. Machine: Will E-Technology Render Associates Obsolete?

 

     In a highly-anticipated showdown, the IBM-created computer “Watson” prevailed against two human champions on the television game show "Jeopardy!".  In a world where machines have already replaced humans in manufacturing and human labor tasks, this sneak peak into a future where humans might also be replaced by machines in intellectual pursuits, was somewhat daunting.

 

     However, in the world of legal technology, that future might already be here. New technology in searchable electronic formats has already eliminated innumerable hours spent by associates and paralegals pouring over hundreds of thousands of documents.  Is this only the beginning . . . and is it desirable?  In the battle of Man v. Machine, will e-discovery software "free lawyers to be lawyers" or will they simply "reduce the number of jobs for associates"?

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Brave New World

"When the individual feels, the community reels."
                              - Aldous Huxley, Brave New World

 

As we all adapt to the “Brave New World” where one’s every thought or utterance can be instantly broadcast to hundreds, thousands, or millions of people via Facebook, Twitter and other social networking media, it stands to reason that some of these electronic “feelings” will impact the legal community and the way electronic information is used in litigation.

 

Despite his fictional view of the future, it’s hard to imagine that Huxley could have foreseen our current environment of lightning-fast relay of stream-of-consciousness meditations. As a primary example, Hadley Jons, a juror in Mount Clemens, Michigan, was removed when it was discovered that she had posted on Facebook that it was going to be “fun to tell the defendant that they’re guilty.”  Naturally, the fact that the trial was not over and the defense had not even begun presenting its case presented more than a little problem . . . 

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Quarles & Brady Welcomes William Hamilton, Leading E-Discovery Expert, ACEDS Chairperson and A Founding Partner of Quarles & Brady's Tampa Office

Quarles & Brady recently welcomed attorney William ("Bill") Hamilton, a leading expert in the e-discovery field, into its ranks. Bill is a founding partner of the Firm's brand new Tampa, Florida office.

A seasoned litigator, Bill is Board Certified in Business Litigation and Intellectual Property Law by the Florida Bar. He is an Adjunct Professor at the University of Florida College of Law, teaching one of the nation's first full credit courses in electronic discovery and digital evidence. He teaches e-discovery at the Florida Advanced Judicial College and has participated in drafting e-discovery rules for state and federal courts. A featured speaker at American Arbitration Association University events on e-disclosure in the arbitral process, he is a frequent writer and speaker on electronic discovery, business litigation and evidence, and a member of both The Sedona Conference® Working Group 1 and the Electronic Discovery Reference Model.

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Digital Voicemail in E-Discovery -- or Dealing with Cerberus, the Three-Headed Dog from Hell

You have one new voice message. First message: Monday, 4:45pm --

I must have just missed you, Vice President Joe.
It's Mike van Dyke, your CEO.
Remember that complicated widget invention --
Our best-seller you copied from the Widget Convention?
The one in your job interview that you mentioned,
And stole from your last boss for withholding your pension?

Well, they've sued us for patent infringement and such,
And theft of trade secrets -- it's really too much.
So I need you to shred all the documentation:
The tech drawings you stole; design specifications.
And that memo you wrote, before everything,
Saying that they had a patent, worth copying.

And yes, it goes without saying, too, Joe --
Please immediately delete this voicemail also.

End of new messages.

A lawyer who finds a copy of this voicemail buried in the other side's electronic document production will immediately splurge on champagne and party hats. And who can blame him? But here's the question: would this message be captured in the net of responsive material, or would it slip through the cracks? The answer may depend less on the skill of document retrieval experts, and more on how your company (or client's) voicemail system works.

It's old news that voicemail systems have graduated from analog to digital. Now, while the self-contained answering machine is still around, the digital era has also ushered in various types of integrated systems. The most complex, like the famed mythological dog Cerberus guarding the gates of Hell to prevent the dead who cross the river Styx from escaping, have three heads: the company telephone system, e-mail system, and computer system. And while a message on a self-contained machine can be difficult for a company -- let's call it Hades, Inc. -- to track and easy for an individual employee to get rid of, life with Cerberus is akin to life in the underworld: there is no escape, and nowhere to hide.
 

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The Ringmaster or the Clown? Dealing with the E-Discovery Elephant in the Room

It is rare to find one of those shared tenets that defy all cultural, geographic, and chronological boundaries -- some fundamental underpinning of life found everywhere from the days of the caveman to the modern age. One we can all agree on, however, is that a professional's worth is and always has been commensurate with his or her experience. The senior dragon slayer of King Arthur's round table received a shinier suit of armor than the new guy. The master caveman's time and worth rose above the apprentice's. And in present day law firm culture, the value of the Associate is often dwarfed by that of the Senior Partner in the cozy corner office.

Electronic discovery, however, has turned this fundamental dynamic on its head. In most areas of the law, change is effected in small increments, opinion by opinion and statute by statute. Sage senior lawyers add to their existing knowledge by keeping up on recent developments -- no fundamental change in thinking is required. Electronic discovery, however, has forced a radical, qualitative change in almost every aspect of how discovery is conducted. Heck, an entire Federal Rule of Civil Procedure was rewritten to account for it. And the dreaded "it" -- that virtual elephant in the room -- is everywhere. As Judge Shira Scheindlin of the Southern District of New York observed in an interview, "We used to say there's e-discovery as if it was a subset of all discovery. But now there's no other discovery."

This ever-expanding nature of e-discovery is carving out a unique dynamic in the three-ring circus that is the Law Firm and the in-house legal department. In short, the problem is that the two parts of the equation needed to master e-discovery (expertise in discovery law and procedure, and expertise in electronic media) are currently located in two separate circus rings: the Ringmaster's and the Clown's.
 

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Googling and Tweeting and Facebooking, Oh My! Jurors Conducting Outside Research During Trial

The Internet and sites such as Twitter offer many opportunities to create more transparency in the justice system, beyond reporting by the mainstream media.  The University of Montana's blog / tweet project on the W.R. Grace trial is just one intriguing current example.  More on that fascinating endeavor here

But the increasing mobility of Internet access has other unintended consequences that cross into the E-Discovery arena.  The New York Times online posted a fascinating article  (note:  New York Times login required)highlighting the sharp increase in the number of jurors who violate the court's routine admonition not to conduct any outside research on the case.  A growing number of jurors are conducting Internet searches on their BlackBerrys or iPhones or sending "tweets" or blogging about the trial via the Internet - sometimes even while they are hearing evidence at trial.

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Portable Devices - Another Source for E-Discovery

In my earlier post "Hosted Apps: A Source for E-Discovery" I pointed out that "hosted applications" are a good source of information when deposing 30(b)(6) representatives and drafting requests for production of electronic information. But what about information buried in portable storage devices such as USB drives, flash drives, hard drives, iPods, PDAs, CD-ROM, DVD drives and even cell phones?

These little gadgets have become very popular tools for transferring data among computer systems and networks. What would be the smoking gun that indicates the deposed party actually utilizing such devices and denied possession of them?

The Windows computer platform may be tight in security but it also contains a trail of bread crumbs that may unveil the presence of some portable devices. Take a look at the Windows registry. It is essentially a database that resides on the computer containing critical information and settings for all the hardware and operating system software, among other things. Each time a portable device is attached to the computer (via a USB, serial / parellel port), Windows grab the information regarding the device manufacturer and serial number if it has one and stores it in its registry.

The registry also keeps a date stamp associated with the last time the portable device was written. So unless the deposed party is a computer forensics expert who knows how to hide her tracks, the Windows registry would likely provide a glimpse of whether the other party is forthright with producing the content you seek.

Hosted Apps: A Source for E-Discovery

In recent years, the "hosted applications" concept has gained popularity among some small to medium-sized firms due to significant savings from the high costs of software and hardware maintenance.  Such applications should be considered when deposing 30(b)(6) representatives and drafting requests for production of electronic information.

Hosted applications, aka SaaS (Software as a Service), is a software application delivery model where a software vendor develops a web-based software application and hosts and operates the application for use by its customers over the Internet. Typically, customers do not pay for owning the software itself but rather for using it.

From a firm's perspective, the advantages of this type of arrangement are numerous albeit potential privacy and security issues (important/sensitive data being stored on the vendor's servers).

  • Platform neutral - applications and documents can be accessed from any computer.
  • No installation - reduced or eliminate software and hardware maintenance.
  • No downtime - applications and documents can be accessed 24 x 7 from anywhere.
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Is your E-discovery Expert Qualified?

On Feb 8, 2008 Chancellor William B. Candler III of the Court of Chancery of Delaware issued an opinion directing a third party to submit information regarding the ediscovery qualification of an information consultant.

This case illustrates that although the actual gathering of electronic information should be left for outside experts, it is also important to ascertain their qualifications since they can be called in doubt. Before hiring a e-discovery expert, there are some steps that can be taken to achieve the best results which may minimize the overall costs of litigation.

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E-Discovery Munchkinland

The recent development of virtual worlds (Active Worlds, Second Life, There ViOS, to name a few) proves to be a viable storefront for the legal world. Even Judge Posner of the Seventh Circuit Court of Appeals got into the game as he "appeared" in Second Life to discuss the U.S. Constitution and intellectual property issues. And if you wonder what virtual worlds have got to do with your practice, Diane Duhaime of Jorden Burt LLP has a good article on V-Ws from the legal perspective.

Although I'm not a citizen or avatar of any of these virtual worlds, I did find a list of entities offering legal services on Second life. My sense is that law firms large and small will continue to create a stake in virtual worlds as we know it today. (For further info, listen to (MP3) a discussion of virtual law firms sponsored by the LegalTalkNetwork).

For some, virtual worlds represent a new career. For others, it's a viable source of business. As legal services begin to branch beyond the linear non-3D environment, the volume of information will inevitably increase. This virtual expansion in bits and bytes generates yet another rich source of data mining-- kind of like the Munchkinland of ediscovery. Not only does it represent a new frontier that may present complex legal issues, it also concerns how information is disclosed or retained. In the blink of an eye, you're not in Kansas anymore.

Client Confidentiality and WiFi

The next time you log into your work email from the corner coffee shop on a sunny Sunday morning, or from your hotel room or a seat at the airport in the midst of business travels, this article from The Legal Intelligencer may give you pause. 

"Free" WiFi "hotspots" are springing up everywhere.  But they may cost more than we think:  when we take advantage of unsecured wireless access, the information we input does not go directly from our laptops to the nearest connection.  Instead, it floats out there in the air (I believe that is the technical term...) for a radius of up to 500 feet.  Highly tech-savvy miscreants (ok, hackers) can misroute these transmissions to their own "Evil Twin" wireless access sites, and capture the confidential information of unsuspecting users, with devastating consequences.  Of course this raises concerns about data security generally, but it also could implicate - or compromise - the attorney-client privilege and work product protections, and land attorneys in ethical trouble. 

Fortunately, the article provides some helpful tips on how to secure your computer and avoid misappropriation of your clients' - or your own - confidential data.

On a more whimsical note....I like to think that when I stopped for my morning latte in Los Angeles, dialogue from 2010's Best Picture could have been floating in the air right past my head.

Sometimes It Pays To Be In The Minority. . .

When it comes to electronic discovery, that is. A recent survey cited in a New York Law Journal article indicates that many corporate counsel lack preparation for e-discovery issues in litigation.

In a survey by e-discovery consultant Lexakos, almost 55% of those surveyed said their companies needed to spend more time developing e-discovery and litigation readiness plans. Another 52% said they needed to improve their litigation hold procedures. If you are in the 45% and 48% minorities that are already prepared for e-discovery, pat yourself on the back and go on about your day. If you are not, read on.

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Recent Surveys Illustrate Complexity of E-Discovery Compliance for U.S. Companies

The challenge of complying with e-discovery rules was illustrated in the results of two surveys released recently. A survey from Robert Half Legal, (a company specializing in attorney recruitment and placement) found that one in four lawyers in North America believe that e-discovery will have the single largest impact on the practice of law in the next five years. Why? According to Charles Volkert, Executive Director of Robert Half Legal, "the complexity and cost of the task, coupled with the associated information technology and human resource needs, make [e-discovery] a challenge."

Similarly, a survey published in eWeek.com  found that two-thirds of U.S. businesses are generally ignoring the issue of e-discovery.  According to the survey's author Michael Osterman, the companies, "are either ignoring the new federal mandates for compliance and e-discovery or are clearly not well educated on how to meet the technical requirements."

The results of these two surveys, at first glance appear somewhat contradictory. Are the majority of companies really ignoring the legal issue expected to have the largest impact in the near future? However, both surveys seem to point to the same problem, a lack of clarity in many companies on how to effectively and efficiently comply with e-discovery rules. 

The survey conducted by Robert Half indicates that e-discovery is expected to have such a large impact because of the complexity and expense of compliance. Likewise, in discussing the results of the survey in eWeek, Michael Osterman, stated that many companies are still unclear on the concept of e-discovery in general. "There really is no consensus yet on whether a company should keep all its e-mail and other docs, or whether a company should keep a finite number of years' worth of data, or whether it should keep more than 30 days' worth of data."

Time will tell whether e-discovery will be the largest issue facing the practice of law in the U.S. However, the actual impact will likely largely be effected by the current corporate response to e-discovery rules.