Category Archives: eDiscovery

What You Need to Know About the Mandatory Initial Discovery Pilot Project

What You Need to Know About the Mandatory Initial Discovery Pilot Project

7/19/2017 | Josh Markarian | TERIS 

With the Mandatory Initial Discovery Pilot Project (MIDP) having come into effective May 1st, 2017, there are some key requirements that should become familiarized with anyone entering into a litigation suit.

The MIDP is set to run for three years to determine “whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery will reduce the cost and delay of civil litigation” and has been implemented in both Arizona and Illinois federal courts.

The requirements for the MIDP can be summarized as:

1. Any party seeking affirmative relief must serve a copy of the Notice to the Parties of Mandatory Initial Discovery Pilot Project

2. Parties are ordered to provide mandatory initial discovery responses before initiating any further discovery

3. Parties must provide both favorable and unfavorable facts regardless of their intent to use the information

4. Responses to mandatory initial discovery is required in the 30 days after first pleading was filed

5. Parties must respond to the following Court-issued discovery requests without awaiting discovery requests from the opposing parties.

6. ESI identified for production is required 40 days after serving initial response.

The premise of this project is that the early sharing of information that is commonly provided will possibly lead to early resolution of matters before additional legal fees incur.

 

20 eDiscovery Blogs for Legal Professionals to Follow (Updated)

20 eDiscovery Blogs for Legal Professionals to Follow (Updated)

The complexities of eDiscovery make constantly following recent eDiscovery news and developments a necessity for most legal professionals. EDiscovery is a part of all forms of litigation and continues to grow and evolve at an astounding rate.

Fortunately, there are a number of blogs that track eDiscovery developments and we’ve compiled an updated list of 20 (in no particular order) we think are worth bookmarking to stay updated on recent news.

1. Electronic Discovery Law– Published by K&L GATES and chock full of great information; this blog/Web site is made available by the contributing lawyers or law firm publisher solely for educational purposes to provide general information about general legal principles and not to provide specific legal advice applicable to any particular circumstance.

2. Complex Discovery– This is a technology blog highlighting data and legal discovery insight and intelligence. Written by the CMO of CloudNine, Complex Discovery allows you to stay up to date with everything from current discovery cases, educational content, market sizing and other regularly scheduled updates.

3. Law 360– Law360 provides the intelligence you need to remain an expert and beat the competition. Recently acquired by LexisNexis, this blog has a plethora of information on everything from intellectual information to international arbitration.

4. e-Discovery Team– This blog by Ralph Losey takes a multidisciplinary look at eDiscovery, addressing the issue from a law, IT, and science perspective all at once.

5. Ride the Lightning– For information on information technology, information security, and digital forensics, check out this blog written by Sharon D. Nelson. The posts on Ride the Lightning cover news events all over the world related to privacy issues, cyberattack, legal aspects of information security and electronic evidence, etc.

6. LegalTech News– This blog provides insightful, and jargon-free coverage of legal technology trends and developments to an audience of legal industry professionals, helping them use technology and innovation to deliver faster, better, and cheaper legal services. LegalTech’s audience is made up of lawyers, IT leaders, paralegals, support staff and vendors.

7. Ball in your court– Musings on E-Discovery & Computer Forensics. Published by Craig D. Ball, P.C.. Craig Ball’s column, “Ball in Your Court,” has won Gold or Silver Medal recognition as Best Regular Column or Best Contributed Column from the Trade Association Business Publications International and/or from the American Society of Business Publication Editors every year since 2006!

8. EDD Blog Online– The EDD Blog addresses issues such as cloud computing, technology assisted review, digital forensics, social media, and big data. EDD Blog Online is written in part by the president of Electronic Evidence Labs.

9. Lit Support Today– This blog serves to advance the litigation support professional in their career by providing insight into the latest events, developments and activities about the profession, the people and the happenings that are driving the field forward.

10. Discover Ready– This blog helps readers find fresh thinking on information intelligence. Browse their eDiscovery blog, case studies, webcasts, and more.

11. EDD Update– This blog is an endeavor that combines the efforts of Law.com Legal Technology and Law Technology News. Consult EDD Update for breaking stories regarding verdicts and rulings relevant to e-discovery issues.

12. Technology & Marketing Law Blog– Authored by Santa Clara University law prof Eric Goldman, posts cover topics such as lawsuits related to keyword advertising, online contracts, and court rulings related to the Defend Trade Secrets Act and the Communications Decency Act.

13. The e-Disclosure Information Project– The e-Disclosure Information Project is run by Chris Dale, a former commercial litigation partner turned e-Disclosure consultant. The Project aims to bring together lawyers, suppliers, courts and corporations with an interest in electronic disclosure, and to disseminate information about the court rules, the problems and the software and services available to handle them.

14. 3 Geeks and a Law Blog– devoted to actual technology and how it affects one’s law practice. Visit for tips on information management, discussions of new legal tech and analysis about the future of legal services.

15. Future Lawyer– In this blog, attorney Richard M. Georges incorporates his personality and sense of humor into the posts while covering all things technology.

16. E-Discovery Beat– Owned by Exterro, subscribe to E-Discovery Beat for resources provided for attorneys and litigation support professionals. E-Discovery Beat aims to “tame the chaos” involved in eDiscovery procedures.

17. eDiscovery Daily Blog– This blog owned by CloudNine Software, provides educational tools for eDiscovery practitioners and latest news and case law in the world of digital discovery.

18. eDiscovery Journal– Peruse through the postings on E-Discovery journal for practical advice and impartial information. On this blog, you can research eDiscovery technologies, services, or experts to find a solution to any many possible eDiscovery quandaries.

19. Legal Project Management– Read this blog for suggestions and commentary on conducting a wide range of legal procedures. Legal Project Management occasionally addresses the issue of eDiscovery.

20. E-Discovery Law Alert– Written by lawyers from a law firm practicing in several mid-Atlantic states, E-Discovery Law Alert analyzes recent events related to e-discovery and delves into the intricacies of information management law in a corporate context.

That’s our list – what do you think? Are there any blogs we missed?
July 12, 2017 | Josh Markarian | TERIS

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Email Threading: An Essential E-Discovery Tool

April 11, 2017 ¦ Josh Markarian ¦ TERIS Sophisticated Litigation Support

An email thread is a running list of all replies that are followed after an original email. The back navigation of these emails are formatted in a chronological order varying depending on the email client or email platform that is used, traditionally the last email is on top. Email, threads create and record conversation chains from an original email which is implemented to increase the ease of documentation and tracking past conversations. In 2016 it was reported that on average a single business employee receives and sends up-words of 10,000 emails a year.

Email threading is commonly put to use due to its ability to lower cost and increase speed when properly implemented. The amount of emails sent everyday continues to rapidly grow and having to navigate such massive and cluttered accounts results in increased time and money for litigation and eDiscovery. Consistency and a lower margin for error are another benefit due to attorney being able to see the whole conversation in one picture.

As technology continues to rapidly evolve, some third party litigation providers are having trouble keeping up with the evolving aspects of email threading. To summarize here are a few of the practical uses that come from properly implementing email threading:

  • Cost-saving in documentation review.
  • Increased efficiency and relevance of email content through removing duplicates, and irrelevant content while aggregating relevant content.
  • Quality control through management and monitoring all documents included.
  • Improving the digital utility and ease of use when managing multiple threads simultaneously.mail

E-Discovery preparation and permenance

Document review has become a major profit service for law firms. This gives an inlet to new technologies that allow smaller law firms to take clients they would never normally be able to handle. Additionally, E-Discovery takes the responsibility out of the domain of Industry Titans Instead of making them enlist a large pool of high cost attorneys. This has created scalability that is leveling the playing field in litigation services. Litigation services are crucial to consult even before a lawsuit or any type of litigation takes place. Third party E-Discovery support allows small and mid-sized firms to keep rates low and quality high in order to compete with Industry titans. This is largely achieved through pooling associates when needed and providing IT systems to keep up with demand.

For this system to work smoothly for boutique competitors These Services help to implement; Preparation tactics, document reduction policy, Data mapping assistance, internal investigation, and frequency Data management needs. Third parties also help smaller firms by exploiting their ability to use review software and hire review teams as needed, without carrying infrastructure and head count costs year round. Another added benefit of the E-Discovery industry is the displacement of the larger Discovery firms. These firms often work with current small outside counsel and just handle discovery, but end up taking whole case.

Third parties use SAAS or service as a solution for optimal price scaling on the fly so that production of evidence and overall cost control stay within reasonable boundaries. Working with third party litigation services is also important post litigation. Working with your provider you can easily identify pain points in order to avoid similar occurrences in the future. Lastly Document review is done by custodians and forensic analysts. Making sure that your company aligns with the decisions made by these key players ensures a continuous feedback loop and results in better preparation for any type of litigation activity in terms of quality and validity.

All of these factors point to the fact that the E-Discovery isn’t going anywhere, Instead it is rapidly expanding. Data mapping assistance, internal investigation procedures, and technology migration provide robust business development opportunities downstream for legal work. As the usage of electronically stored information (ESI) increases, inevitably so will the mid-sized firms assigned to handle the tasks that are an externality of this data. If A firm adopts a third party litigation service and educates staff on the risks of their electronically stored information they are much less likely to end up spending superfluous amounts on the costs listed above than if the litigation was never outsourced in the first place.

Everything You Need To Know About The Arkfeld Conference 2016

One of the most important digital conferences in Arizona will be starting shortly. The ASU-Arkfeld eDiscovery and Digital Evidence Conference will take place in the Armstrong Hall on March 9-11, 2016, making it the fifth to date The three exciting days at ASU campus in Tempe will include stimulating information about the newest issues affecting electronic information, information governance and data analytics.

So what is The Arkfeld Conference? If you haven’t been following the latest news, The Arkfeld Conference is an annual conference taking place at the Sandra Day O’Connor College of Law. It is a Program run by attorney, author and educator, Michael Arkfeld, who believes that digital advances are very important to law professionals. William Kellerman describes Arkfeld as the ”intersection of law and technology”, in order to ensure effective education and competency among legal professionals.

Last year’s conference attracted over 150 professionals, including attorneys, service providers and counsel. The theme of ”Know the Law, Know the Technology” discussed a variety of eDiscovery issues and allowed a wide array of ideas and valuable networking opportunities for those attending.

At the fifth annual conference, Arkfeld has undertaken the theme, ”Respect the Past. Understand the Present. Shape the Future.” It will be intriguing to see exactly what technological advances will take place in order to shape the future. Some of the highlights advertised by Arkfeld include mock demonstrations on eDiscovery, as well as insights from some of this year’s featured speakers.

This is where we will be hearing from some interesting voices, including U.S. District Judges Shira Scheindlin of New York, Craig B. Shaffer of Colarado, and Xavier Rodriguez of Texas. Furthermore, we’ll be hearing insights from Technologist Steve Watson from Intel Corporation and the Associate Dean of WP Carey School of Business at ASU, Michael Goul. TERIS continues to be a long time sponsor of the Arkfeld Conference.

To register:

https://conferences.asucollegeoflaw.com/ediscovery2016/register/

The Evolution of eDiscovery – Part 2

Processing concept

Fortunately, the evolution of the eDiscovery process itself has generated solutions in the form of:

  • enriched technological innovation improving and refining identification and collection of case-related data,
  • assessing data and sorting it by relevance, and
  • for integration into litigation strategy.

Applying the eDiscovery Method

eDiscovery is by now an essential component of most business and much criminal litigation.  Its fundamental strategic elements are:

  • documentation of the relevance of discovered materials to the case at hand,
  • preservation of materials for presentation in court, and
  • communication of the discovery to the appropriate counsel.

eDiscovery software is increasingly plentiful, but doesn’t operate in a vacuum.  Skilled practitioners are required to ensure that your litigation strategy brings the desired results.  It may be that your firm has an in-house eDiscovery expert, but if not, find an outside vendor.  With such a vast quantity of data to analyze, unqualified documentation and evaluation of the evidence will only make you seem unprepared in the courtroom.

If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!

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The Evolution of eDiscovery – Part 1

Processing conceptRecent court rulings have found that electronically stored information (ESI) has equal evidentiary weight and value as conventional paper documents.  With eDiscovery, the methods traditionally used for legal discovery are applied to digitally warehoused materials and electronic documents.

The exceptional range of digital information subject to eDiscovery includes emails, Word/PDF and other documents, YouTube videos/digital pictures, spreadsheets, web pages, presentations, voice mail, text messages, digital audio files, Skype conversations, and social media posts.  These represent only a sample of digital materials that eDiscovery can be called to examine for legal purposes.

Comparison to Traditional Legal Discovery

In addition to the differences in format, eDiscovery also diverges from written paper documents in other ways.  It is dynamic rather than static – content of electronic data can be changed more readily and less noticeably than most paper documents.  Moreover, the explosion of cloud computing has:

  • substantially increased the number of locations where ESI and digital assets can be stored or hidden,
  • making their retrieval for legal proceedings increasingly problematic,
  • enhancing the need for efficient eDiscovery,
  • within the strictures of often tight court-imposed discovery deadlines

Thus, complex and controversial issues can emerge for the use and delivery of eDiscovery’s findings.

In addition, there will always be some question of who last-accessed material, a significant legal consideration since opening a digital file transforms its metadata, which must be accounted for during trial, if data from that file is used.  To assure proper identification, a forensic image of the computer should be made prior to re-starting the computer for eDiscovery purposes.  This assures recording of user, time and date, thus separating the discovery process from prior use.

Also, the sheer volume of ESI messages and data is considerably larger than paper.  This has been especially true since the emergence of Big Data as a way of digital life.  It matters for eDiscovery, because investigation of every item of information potentially pertinent to a particular case is required, to ensure all responsive material is included during litigation.  It is also important for eDiscovery personnel and the legal team they represent to ensure privileged data is appropriately identified.

The exceptional quantity of electronic data makes it impossible to examine each separate item individually.  Where quantities of digital information is excessive, the legal system advocates their computer review, to ascertain their relevance to a case.

This development is necessary.  eDiscovery has its benefits for improving the reliability and content of evidence.  However, for corporate attorneys and in-house counsels dealing with ever-increasing volumes of Big Data, this also means more documents to analyze, increased risks and higher litigation costs.

Look for additional information in Digital Forensics – Part 2.  If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!

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Tips to Reduce eDiscovery Costs and Improve Review Efficiency

Cost and performance management sketched on a white board

ESI Rule Number One: “… to secure the just, speedy, and inexpensive determination of every action and proceeding.” FED. R. OF CIV. P.1. When outside counsel understands ESI they will meet the above-mentioned rule and ethically represent their clients.”

Improperly worded requests for ESI Collection from counsel may not only cost a firm time and money but could also open up the potential for opposing counsel to take advantage of the situation. Negative actions can include providing burdensome production, providing too little and/or providing the data in a format that is not “load ready” for review.  In the end, these may end up increasing client cost and eroding your hard earned relationship.

Here are some tips to avoid this situation:

  • Understand your client’s data and do not make assumptions
  • Create a concisely worded Request for Production
  • Discover how opposing counsel will handle
    • Files with no text?
    • Family groups (email and attachments)?
    • Metadata. Is it included when term searching?
  • Understand your review options
    • Data size is important, and you must remember to account for both sides.
    • The experience level of the review team
    • Do you really want TIFF images? They are nice but frequently cost more
  • What are the destruction policies and have they been suspended?
  • What are the ethical considerations in requesting and providing data?

A third-party trusted partner can help you manage ESI Collection with consistent and cost efficient results. If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!

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Four Steps to Maximizing Your Outsourced eDiscovery Dollar – Part 2

Traffic Sign "Outsourcing"For both in-house counsel and outside counsel, external litigation support vendors can act as an extension of their own legal department, creating extra value and a competitive edge for clients.

Here are the major areas where an eDiscovery provider must show they are up to par:

Alternative Fee Arrangements

Alternative Fee Arrangements (AFAs) are now common between outside counsel and their in-house clients. These AFAs can take many forms, from fixed fees to value-based fees. For the purposes of this article let’s concentrate mainly on fixed fees.

Predictability for cash flow and budgeting are attractive elements of a fixed fee structure. This is useful for managing partners looking for ways to avoid a large and unexpected bill and also a great way for General Counsel to minimize their spend and bring predictability to a corporate spend that is usually a unpredictable and draining.

Fixed fees place the onus for efficiency on the eDiscovery provider. This causes them to find ways to become more efficient with cases while making sure to live up to their Service Level Agreements (SLAs). This focus on efficiency leads to innovation like repurposing the same data across multiple cases.

Another great benefit of fixed fees for counsel is that they can treat every case as if it may go to trial. Even small cases can be sent to counsel’s provider and handled with the same expertise and seriousness as their largest cases, ensuring that legal and business decisions govern the merits of a case, and not discovery fees.

Flexible Line of Products

Whether dealing with eDiscovery, IT or even the latest home gadget, we have all been frustrated when a product we have invested in becomes obsolete seemingly overnight. Even the most powerful proprietary platforms of today can have problems or limitations tomorrow.

If you have signed a long term deal with a provider who relies on one single platform, you are quite frankly stuck, just the same as they are. Conversely, if you have signed a long-term deal with a provider who is constantly evaluating and adopting best-in-breed technologies, you have the flexibility and scalability to handle cases in the most efficient manner possible.

Additionally, not every case is the same and not every case can benefit from the same tools. It is critical that a provider be able to “put the Legos” together for a unique circumstance and provide a uniquely suitable solution. This cannot be done by providers who offer only one solution or by legal departments who with limited staff and solutions.

Certainly, having options in life is nice – and eDiscovery is no exception. Actually, options in eDiscovery are a necessity these days!

High Degree of Expertise

Having all of the tools in the world and all of the creative pricing that comes with them is great. But all of that is for naught, if a provider does not have the right people to back it all up. It is about people just as much as it is about technology and process.

According to Richard Saldivar, Principal/TERIS, “How can you tell how good Provider A’s project managers will be in a given case? You need intrinsic evidence. Ask your provider for a representative client list and references from those clients. Ask your provider for a test project with all the trimmings.”

Only counsel who has dealt directly with the provider can give you the real story.

If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!

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Four Steps to Maximizing Your Outsourced eDiscovery Dollar – Part 1

Traffic Sign "Outsourcing"For both in-house counsel and outside counsel, external litigation support vendors can act as an extension of their own legal department, creating extra value and a competitive edge for clients.

Much has been made of the argument as to whether to outsource eDiscovery (see Ralph Losey’s excellent article “Five Reasons to Outsource Litigation Support”, Law Technology News, November 2, 2012. Similarly, an excellent rebuttal was supplied by Bryon Bratcher and Tom Baldwin, “6 Reasons to Insource Litigation Support”, Law Technology News, January 18, 2013.

There are times when both scenarios make sense but there is a way to get the most out of every dollar spent on outsourcing eDiscovery and other types of litigation support.

Here are the major areas where an eDiscovery provider must show they are up to par:

Efficiently use Data for Multiple Cases

Especially for highly litigious companies, it is quite common that the same data spans across multiple cases, even if the legal issues central to those cases are completely unrelated.

Here is a simplified, fictionalized example based on real scenarios:

Jack Smith at XYZ Corporation is a primary custodian in the case NW Widgets v XYZ, and his files from 2002-2007 are potentially relevant. The eDiscovery provider collects and processes these files and makes them available for review. Jack Smith then becomes involved in an employment matter with a disgruntled former employee of XYZ. Jack’s files from 2005-2008 are potentially relevant. Should this custodian’s overlapping files from 2005-2007 be recollected, reprocessed and even re-reviewed in their entirety? Should XYZ pay the provider to host a separate instance of this data in this separate case?

It seems obvious that the answer to the above question is NO.  XYZ should not pay more than once for the same services on the same data. The truth is, however, that corporate legal departments and law firms do this every day. It is very common that the same data is handled by several different providers or even, in several instances, reprocessed by the same provider and re-reviewed for privilege.

The practice of collecting processing and storing the same data multiple times is a real issue for both law firms and corporate legal departments. The right provider can and should help put a stop to it.

Please look for Four Steps to Maximizing Your Outsourced eDiscovery Dollar – Part 2.  If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!

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