Ediscovery has become a necessity within the legal profession rather than an occasional novelty. The powerful capabilities of electronic discovery are very impressive, and can benefit your company even more so by focusing on several key qualities.
1. Powerful Search Function
Any electronic discovery tool must be able to collect all the data you could need as evidence, and also have comprehensive search capabilities. This includes searching not only active files but archived data as well, and by multiple factors: concepts as well as words or phrases. Results should be delivered quickly and in an easily understandable format.
Searching data isn’t enough; you also need a system for keeping all that gathered information organized and easily accessible. Make sure your ediscovery tool is capable of indexing files and documents, or create a dedicated database from scratch. File conversion capability is a necessary part of this process.
Your platform must be able to handle large amounts of data. Very often in data mining, one gem uncovered leads to entirely new trails. A low-capacity system will quickly become irrelevant and frustrating.
The electronic discovery service provider you choose should also be an economical choice. The stronger your return on investment, the less money is tied up in the discovery process which may be better allocated elsewhere.
The more user-friendly a program is, the more positively it will impact your ROI. Although you want a comprehensive search and analysis potential, you also want it quickly and with a minimum of specialized training.
Usability should not, however, come at the cost of functionality. Your ediscovery has to be able to manage complex projects efficiently, including data from a variety of sources: spreadsheets and documents as well as emails.
Any electronic discovery software used must be compatible with other software your legal team may already be using, so data conversion capability is a must. Data should be able to be converted into other formats easily, including images or text.
Compatibility of your discovery software is essential not only with other litigation software you may be using but also with your legal team. Any program used has to be in alignment with the requirements of you and your staff. This includes data format, general manageability, and other user-end qualities which are necessary to you.
9. Preservation of Data Integrity
If the integrity of your data is called into question, all electronic discovery efforts will be wasted effort. Your ediscovery tool must ensure total preservation of all original data.
The Big Picture
Although naming specifics is easy, it’s important to remember to look at the big picture as well. A good ediscovery tool will enhance defensibility, accelerate case assessment and contribute to a significant reduction in review workload. Investigations should be completed more quickly, and data must be collected and searchable, without its integrity being called into question. These qualities, plus compatibility with your existing team and methods, are what ultimately define the ideal ediscovery tool.
The popularity of Social Media and e-discovery are both at an all time high. According to insidecounsel.com, Americans are spending 1/5 of their time online using social medial sites like Facebook or Twitter. These online platforms have now replaced email as the preferred method of communication. Also, nearly 80% of the Fortune 100 companies are using some form of social networking to market their products and reach customers and build relationships.
Even though there is tremendous value in social media marketing for companies, there is also risk. These ten simple issues we raise will give you something to consider as you map out your company's social media policies:
Chatting about the company:
Do not allow your employees to discuss sensitive business related content online. It’s risky. If your company is involved in a sensitive deal (or litigation), then giving away any information may cause the deal to bust - or you may hear about it in your court proceedings.
Know the law:
Often companies have attempted to bring information they’ve acquired online, yet the laws concerning social media create new headaches, and many are yet to be developed. Refer to Federal Rules of a Civil Procedure for best practices of e-discovery.
Having an e-discovery auditor is an excellent way to foresee future problems BEFORE they develop (such as an employee who “surfs the net” and loiters on social media sites or “friends” fellow problem co-workers). An auditor will help you address potentially damaging rumors or concerns before they get out of hand.
Social Media Agreement:
In an effort to protect your company’s interests, why not have a signed agreement with employees to limit what they say about he company publicly (online and offline)? “You can’t do that!” you may think. Are you sure? Why not? All company data, and activity within the work “space” may be considered confidential. It’s worth considering.
Its Simply Different From Paper:
Electronic data isn’t the same as paper data. It is untouchable, invisible, yet it’s there. Metadata stores the date, time and other info and can be crucial in proving your case. It can't be easily shredded or discarded like paper. Know your company devices and develop a data storage and management plan.
Get a 2nd (or 3rd) Opinion:
Make sure you are constantly questioning your legal team about evolving social media policies and cases. As you know, this is a world that is literally changing on a daily basis. You need to make sure you have a team of experts both within and outside your company who you can turn to for advice or guidance at any given time. It's well worth the investment.
Take It Seriously:
Just because something was written in cyber space, doesn’t mean it is not important or valid. Using a social media platform opens the user to a broad audience. When utilizing social media all employees should be aware of who could be potentially reading their posts. If the employee makes comments in a post or article that could be potentially damaging or used against them or the company in the future, it could spell trouble.
Multiple Electronic Devices:
Devices such as smart phones, tablets, or email accounts all now can be used for social media activities – and can also contain metadata. Previously, access to this info was not always legally (or technically) readily available, but now it can potentially help (or hurt) your case.
New Federal Laws:
We now have laws that allow the use and disclosure of social media e-discovery information and how it can be used in court. Make sure you are familiar with the latest rulings.
Find the Right Partner:
Taking on the task of e-discovery in the new social media world can seem like a monstrous job, but there are firms (such as TERIS) who specialize in this field. We're happy to provide a no-obligation initial consultation to help you evaluate your current social media e-discovery program and determine what steps you need to protect yourself for future developments.
With the recent adoption by New York of an official standard for electronic document preservation, the legal world may be standing at the edge of a new precedent for e-discovery.
Origins of Zubulake
The proper procedure for e-discovery document preservation originates with the 2003 case, Zubulake v. UBS Warburg LLC, which took place in a New York district. The court ruled that any party which anticipates litigation must immediately cease its usual document destruction policy in order to preserve possible evidence. This ruling specifically addresses e-discovery such as emails and other virtual documentation.
Justice Sallie Manzanet-Daniels wrote that "the Zubulake standard is harmonious with New York precedent in the traditional discovery context, and provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context" in reference to the ruling, and support of adopting this standard, which has since been implemented across all four districts of New York.
Recent Appeal Ruling
Manhattan Supreme Court Justice Richard Lowe III upheld the standard in a recent appeal, granting it more strength. His ruling confirmed findings from a lower court against EchoStar Satellite. The company in question had been sanctioned for deleting relevant emails, even after the initiation of a lawsuit against the company by VOOM HD Holdings, a former subsidiary of Cablevision.
An email from Orin Snyder, a lawyer for Voom said in an email that the “ruling confirms that EchoStar destroyed evidence in blatant violation of the law and will now be held accountable for its misconduct."
This decision is also an adverse inference jury instruction; the jury is free to assume that the emails were deliberately destroyed, and that the ediscovery, if preserved, would have provided evidence in favor for Voom. The court wrote that they agreed “with the motion court that an adverse inference was warranted because EchoStar's spoliation of electronic evidence was the result of gross negligence at the very least."
A national group, the Lawyers for Civil Justice, argued in favor of EchoStar. Both insisted that the Zubulake standard is "vague and unworkable because it provides no guideline for what 'reasonably anticipated' means" and that it should not be enforced unless a lawsuit will definitively be filed. The reasonable anticipation standard could be considered subjective; it also argued that changing potential ediscovery destruction methods would put an unfair cost burden on companies who would now be forced to retain excessive data.
The First Department panel disagreed, stating that “requiring actual litigation or notice of a specific claim ignores the reality of how business relationships disintegrate." The case in question specifically resulted over a contract dispute between companies. The court wrote that EchoStar should have realized that attempting to void a business agreement was certainly likely grounds for a possible suit to be brought. In addition, emails were continuously being deleted even months after the initial filing.
Implications for National Standards
The findings of the court stated that “once a party reasonably anticipates litigation, it must, at a minimum, institute an appropriate litigation hold to prevent the routine destruction of electronic data (see Pension Comm. of the Univ. of Montreal Pension Plan, 685 F Supp 2d at 473)” and that such a hold would “preserve all relevant records, electronic or otherwise, and create a mechanism for collecting the preserved records so they might be searched by someone other than the employee.”
Now that an appeal specific to the Zubulake standard has been upheld and the standard officially adopted across New York districts, what does this mean for e-discovery procedure going forward for the rest of the country? It’s a good chance that more suits will invoke the New York Zubulake standard as case precedence, and the previous ambiguity that surrounded the specifics of e-discovery in litigation is well on its way to becoming conclusively defined.
Litigation newsletters, blogs and case law are full of cautionary tales about eDiscovery gone wrong. Hard drives that were reformatted, backup tapes that were lost and files that were never collected have cost dozens of companies millions of dollars in sanctions. In other cases, discovery disputes slow the pace of the litigation to a crawl, adding time and money to the outcome. Keeping the pace of the litigation moving is the one of the most effective way to lower the cost of eDiscovery in a small case.
- Inventory what you have. As soon as you can, determine the "who," "what," "how," "where" and "when" of your client's records. Identify who the key players in the case, and talk to them to find out what software applications they use and how they use those applications. For example, does a user overwrite monthly reports in the ordinary course of business, or does she create a new file for each monthly report? Identify locations where these files stored, such as network drives, hard drives, databases and portable devices. Determine when the files related to the case would likely have been created and/or modified.
- Preserve the files. Nothing bloats a cases's timeline, costs and attorney fees like a claim of data spoliation, so make sure to preserve the files you have.
Issue a written or e-mailed "litigation hold notice" that informs custodians of their duty to preserve their records while the case is pending. Identify the date range and types of files that need to be preserved. Require custodians to acknowledge receipt of the hold notice and to affirm that they will comply with the request. Provide them with your name and contact information so they can call or e-mail you if they have a question about the kinds of records that need to be preserved.
Include your client's IT employees on the hold, and talk to them about the most efficient way to preserve and produce copies of the company's files. Isolating a backup tape from the date range at issue helps prevent a spoliation charge, but restoring data from a backup can be costly.
- Act early and proactively. Meet and confer early with opposing counsel. Rule 26 of the Federal Rules of Civil Procedure requires counsel to meet and confer about the scope of e-discovery within 120 days of the date the defendant is served, and many states have a similar requirement. Don't wait until the 119th day to meet and confer with opposing counsel. Be proactive and act early.
- Use your client's IT staff instead of hiring an eDiscovery vendor. Keep costs down by using inhouse resources to preserve and collect files. If your client's IT team has the know-how to copy hard drives and transfer files, you can save thousands of dollars by letting them take the lead on data collection. Put one person in charge of the process, and make sure he or she documents, step by step, the work that the team does on the case.
- Go native. In a small case with very little data, exchange native files with opposing counsel. You'll save your client the cost of processing the native files and converting them to pdf or tiff files. Save an unaltered copy of the files as they were collected in case a file's integrity is called into question. In most cases, however, it's the content of the files, not the way they were collected, that makes up the meat of the case.
As we gear up for 2012, its "out with the old and in with the new" or in the case of eDiscoveries, analyzing what worked well this year and carrying them over into the new year. Here is an attempt at predicting seven top eDiscovery trends in litigation and technological advances for 2012.
1. Social Media is here to stay.
There has been a substantial increase in electronically stored information (ESI) over the past few years. New varieties have emerged recently, such as cloud context, mobile to mobile communication, loose files, social media, structured files etc. More and more organizations are noticing that these types of ESI trumph file sharing through emails. Now this news can be a bit disheartening to companies that are afraid of change, but when dealing with eDiscovery requests it predicted that the social media trend shows no signs of fading.
2. Cost Shifting impacts the "American Rule."
For decades the "American Rule" stated that parties need to pay for their own production costs. Well, now more and more courts are considering eDiscovery vendors as the "21st century equivalent of making copies." It is predicted that in 2012 we will see an increasing amount of courts awarding winning parties their eDiscovery cost.
3. No more Data Hoarding!
Storing tons of unmanaged and unsupervised ESI has become increasingly dangerous when dealing with litigation risk. For organizations that have never or have rarely deleted files, cleaning up the digital home is important in minimizing liability.
4. Risk Assessment is a key component of eDiscoveries
With the advancement in software technologies, it has been more important for counsel manage their risk by deciding the various error/precision rates there could be. Software technologies have helped with statistical insight, allowing counsel to manage their risk and reward balance.
5. Expand to an International Mindset
International markets have begun to develop quickly and in some cases they are surpassing the U.S. Shifting to a more global way of practicing and thinking, particularly with regulatory compliance driven cases, will only benefit attorneys.
6. There will be a continued Maturation of the eDiscovery process
In 2012, Best Practices involving the corporate process will include regular status update meetings; managed time lines and progress; identifiable workflow and production requirements. When dealing with technology, mature organizations will continue to utilize central legal sources to support the discovery process instead of the standard informal management of cases. Numerous advantages to these processes will include a better system to manage the production of work.
7. Acceptance of Technology Assisted Review (TAR) continues to grow
Next year is predicted as being a pivotal year for TAR. Contrary to what the opposition thinks, TAR has proved to not only reduce costs, but yields more accurate reviews over the manual review with much less effort. Even though skeptics say it may not be legally defensible, it seems that it drastically aides in alleviating workflow with very little effort.
TERIS, a leading provider of eDiscovery, data hosting and related legal support solutions to corporate legal teams and law firms, today announced that kCura, developers of the e-discovery platform Relativity, has welcomed TERIS into the very elite group of partners who have achieved “Best in Service” status.
Established in 2010, the Best in Service program recognizes Relativity partners who do an exemplary job of maintaining a commitment to delivering a great customer experience with Relativity. Partners were evaluated on technical capabilities, volume of data and cases under management, and the strength of their client references.
"We are extremely honored that kCura has recognized TERIS as a Best in Service partner,” said Kip Hauser, TERIS Chief Operating Officer. "Our goal is for each of our clients to have an exceptional experience and come away with an increased knowledge of the eDiscovery process after working with TERIS. We've invested heavily in our technology, as well as our employee training, to make sure our staff is highly knowledgeable with all aspects of Relativity, creating a premier hosting and review experience for our valued clients. We appreciate and look forward to our ongoing partnership with kCura."
“It is important to us that Relativity users have a positive experience with the software,” said Andrew Sieja, president and CEO of kCura. “The Best in Service program allows us to recognize our partners who provide high-quality support, infrastructure, and product expertise to their customers, and we’re proud to identify TERIS as one of these exceptional partners.”
About kCura - Recognized as a “Leader” in Gartner’s 2011 E-Discovery Magic Quadrant, kCura are the developers of the e-discovery software Relativity, a web-based platform for the review, analysis, and production of electronic data. Relativity has more than 52,000 active users worldwide from organizations including the U.S. Department of Justice and 95 of the top 100 law firms in the United States. Relativity also powers Method, kCura’s workflow and notification system for managing legal hold and risk assessment processes. kCura helps corporations, law firms, and government agencies meet e-discovery challenges by installing Relativity and Method on-premises and providing hosted, on-demand solutions through a global network of partners. kCura has been ranked the 42nd fastest-growing technology company in North America on Deloitte’s Technology Fast 500 and named one of Chicago’s Top Workplaces by the Chicago Tribune. Please contact kCura at firstname.lastname@example.org or visit www.kcura.com for more information.
Founded in 1996, TERIS is one of the nation's leading litigation support firms, providing sophisticated eDiscovery and related legal support solutions to corporate legal teams and law firms across the U.S. and internationally. The company has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix, Austin, Dallas, Houston, and Chicago. To learn more about TERIS, visit TERIS.com or follow the company on Twitter at www.Twitter.com/DiscoverTERIS for Facebook at www.Facebook.com/DiscoverTERIS.
206 262 7302 Office
david.kaufer (at) KauferDMC.com
TERIS Hires Jason Christian as Operations Manager for its Growing Northern California Region
Responsibilities include supervision of ESI, Hosting/Imaging, Traditional Services, Client Services and Forensics departments
PALO ALTO, CA – November 21, 2011 – TERIS Silicon Valley announced today that it has hired Jason Christian as Operations Manager for its Northern California region. Christian is responsible for the supervision, development and constant improvement of the ESI, Hosting/Imaging, Traditional Services, Client Services and Forensics departments for the TERIS Silicon Valley and San Francisco offices. He works directly with directors in each department to develop programs that increase operational efficiency.
“Our presence in Northern California has nearly doubled in the past year, which has created new operational challenges and opportunities for us,” said Kevin Brooks, Executive Vice President, TERIS Northern California. “Jason's experience with managing large EDD departments and his success with overseeing the resources, processes and overall workflow of legal document processing for clients makes him a tremendous asset for TERIS. Our clients will continue to benefit from our expanding capacity and improved operations.”
Christian has more than seven years’ experience working in the legal industry. Most recently he was EDD Operations Manager for SFL Data, where, among other duties, he managed a team of 20 EDD technicians and worked with forensics, data hosting and project management teams to assure a smooth transition for each project between departments.
Prior to joining SFL Data, Christian worked with D4 Discovery and Digital Strata. He gained valuable experience working with clients to mitigate possible risks during collections and to develop collection strategies and best practices.
Christian received his Bachelor degree from Liberty University in Lynchberg, Virginia. His certifications include Guidance Software (EnCase Computer Forensics I and II) and Clearwell Systems (Clearwell E-Discovery Platform).
Founded in 1996, TERIS provides legal support and sophisticated eDiscovery solutions to corporate legal teams and law firms across the U.S. and internationally. TERIS’ staff of over 300 was named one of the top 20 eDiscovery service providers by industry researcher Socha-Gelbmann in 2008. The company has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix, Austin, Dallas, Houston and Chicago. To learn more about TERIS, visit www.TERIS.com or follow the company on Twitter at Twitter.com/DiscoverTERIS or on Facebook at Facebook.com/DiscoverTERIS.
Media Contact: David Kaufer, 425-275-8814 (mobile); 206-521-8717 (office) or DKaufer (at) TERIS.com