This is a constant question that comes up in the scope of document production.  Does the legal team want to keep families together or treat them as separate documents.  This article is a good reference and has supporting arguments for both sides of the debate.  Unfortunately, there appears to be no definitive case or ruling on the subject.

Printing ESI & Scanning It Is Not OK

“The Federal Rules of Civil Procedure and corresponding case law are abundantly clear that you cannot degrade searchable files.  Printing ESI and then scanning the paper as non-searchable PDF’s is simply not permitted by the discovery rules.”

Ralph Losey of Jackson Lewis on Predictive Coding and Transparency in E-Discovery

Great interview with Ralph Losey on predictive coding.  His explanation of how analytics and predictive coding work  in understandable terms by relating it to iTunes’ Genius function is spot on.

Applying E-Discovery Best Practices to Cloud Computing

“According to the minutes of the mini-conference, attendees agreed that advancements in technology since the Supreme Court approved the e-discovery amendments to the Federal Rules of Civil Procedure have led to new challenges in e-discovery and preservation. Included among those advancements is cloud computing.”

Live Blogging at LTNY: Session on Budgeting for E-Discovery

Some takeways from LegalTech New York 2012. “In this sesssion, key attributes were discussed that can reduce e-discovery costs and assist in litigation readiness for corporations, law firms and government entities.”

E-Discovery Judges in Charlotte: Post-CLE Summary (2 Parts)

“Judges Facciola, Grimm and Peck spoke on the most pressing issues facing practitioners today. Using the context of a mock case (and its attendant meet and confer and Rule 16 conferences) the panel analyzed best and worst practices, and looked to the future of litigation and government investigation in a post-ESI world.”

LegalTech Panel Examines E-Discovery Challenges in Europe

“In the discussion, “A GC’s Nightmare: A U.S. E-Discovery Request into Europe,” panelists from the U.S. and European Union membership countries laid out numerous examples of incorrect assumptions they have seen in multinational e-discovery cases — and the risks and problems resulting from them.”

“Judge Paul Grimm, Chief United States Magistrate Judge for the U.S. District Court for the District of Maryland, is a thought leader and at the forefront of knowledge in the field of electronic discovery. Judge Grimm has authored multiple case opinions that have become the basis for rule changes to the rules of civil procedure. He continues to be an expert in the field and he graciously took some time to talk to Discovery Brain about his knowledge and experience.”

“…I looked into some of the issues associated with a fundamentally important area in the modern practice of civil litigation which is that discovery must be approached on a cooperative basis. That doesn’t mean that you give up meritorious argument or not have disputes, but it just means you argue over the things that are important. You cooperate on the things that are mutually beneficial to your clients. For example, look at keyword searching. If I give you just a list of keywords and tell you to go search them and you don’t have any input on that, then what’s likely to happen is you’re going to run a search that will have poor recall and precision rates that won’t produce helpful information, which will lead to disputes and further expenses. It’s much better that we cooperatively design a search methodology. It lowers costs, gets the materials produced faster and avoids motions where people run out of money. The need to cooperate is inherent in the rules of civil litigation. Those that advocate a confrontational approach to discovery for the sake of confrontation really do not understand what’s involved in the adversary system. That was emphasized in Mancia v. Mayflower Textile Services Co. decision. Thereafter my most recent discussed decision was the Victor Stanley, Inc. v. Creative Pipe Inc. case dealing with the duty to preserve.”

“Part of the entire evolution, I have become interested in the fact that in 2009 a series of attorney questionnaires from a variety of sources said federal litigation is too expensive and that in turn has led to my concern with how we can manage litigation so that it is proportional to what’s at issue in a case. This means you get the right amount of discovery so that the parties have fair discovery and nothing is hidden or lost, but you don’t waste money. In no system does it make sense that you spend $5M to resolve a case that’s worth $1M. With the volume of digital evidence out there and the number of people who have the same evidence in different locations, parties spend enormous amounts of money trying to figure out what you have before they can then even talk about settlement or trial. So the real challenge for the profession and for the courts is to make it so that we don’t become so expensive that people can’t afford to come here.”

Susan Wheeler, Streamline Imaging’s Director of Discovery Services, has been recognized as a Relativity Certified Administrator by kCura Corporation, developers of the industry leading document review and e-Discovery platform.

RCA certification is granted to select individuals based on their experience in managing Relativity in the field, plus a rigorous examination that tests both knowledge of Relativity and the ability to use the application in practical, hands-on exercises.  In addition to recognition of their expertise Certified Administrators also receive direct access to second level kCura support, which enhances their ability to leverage Relativity as a solution for clients.

RCAs are recognized as Relativity experts. Service providers with RCAs on staff are recognized to assure their clients that cases will be managed by a professional who understands the full capabilities of Relativity.

Streamline Imaging is a Relativity Premium Hosting Partner of kCura Corporation.

A good basic overview on how to assess the opposing side’s production.

Are E-Discovery Sanctions More Fear Than Reality?

“K&L Gates’ Thomas Smith said sanctions are a bigger fear for attorneys who don’t understand the applicable rules than for those who know the rules and case law.”

Are Employers Still Confused When it Comes to E-discovery Preservation?

“The bottom line is that having the best litigation strategy to defend against an employment discrimination claim means very little if it is unconnected to meeting basic e-discovery preservation obligations.”

Bit-By-Bit: A Reality Check

A look at targeted vs. forensic image collections and common practices.

Cloud Cover: Cloud-based e-discovery is easier, cheaper, and improves quality and efficiency.

An easy to understand description of what the elusive term “cloud” means and how it’s changing the world of e-discovery.  ” The cloud will make EDD easier and cheaper while improving the quality and efficiency of preservation, search, review and production.”

Controlling Data In A Social Media World

 ”If you are proactive and you have taken prudent steps, it changes the control of the conversation.” 

  E-Discovery Evolution: Costs of electronic discovery are growing

“A lot of the costs in e-discovery are driven by paranoia because counsel or the party themselves don’t really know the rules and don’t know what the case law says, and they misunderstand and think we have to collect every single thing,”…

Courts Skeptical Of Facebook Evidence

There are still no clear-cut rules for allowing social media as evidence.  ”…In its ruling, the Appellate Court said social media messages are analogous to hand-written statements, which can be forged. When the purported writer denies writing the statement, it is up to the person proposing its admission into evidence to prove its authenticity.”

De-NISTing: De-FECTive

Craig Ball looks at the NIST list and performs his own research on how up to date and effective it is.

Selected highlights from the analysis:

• “The number of e-discovery decisions continues to increase at a blistering pace. The 187 decisions we identified in the first half of 2011 represents an 82% increase over the 103 decisions we identified at mid-year 2010.”
• “The number of instances in which litigants sought sanctions in the first half of 2011 was more than double the number in the same period last year (68 at mid-year 2011 versus 31 at mid-year 2010), and sanctions awards have nearly doubled in absolute terms (38 at mid-year 2011 versus 21 at mid-year 2010).”
• “Notwithstanding this increase, courts awarded sanctions at essentially the same rate as in 2010 (56% of the instances in which a party sought sanctions in the first half of 2011, versus 55% for the full year in 2010).”
• “Determining when litigation is “reasonably foreseeable” for purposes of triggering the duty to preserve continued to be a fact-specific analysis.”
• “Courts continued to emphasize that counsel’s responsibility to ensure preservation does not end with timely distribution of a legal hold notice.”
• “Courts continued to demand cooperation and remained keenly aware of counsel’s efforts–or lack thereof–to resolve e-discovery disputes before seeking judicial involvement.”

Cooperation seems to be a common theme, especially when talking about search methodology/workflow and production requests/disputes.  It’s something we see all the time in e-discovery articles: communication between opposing counsel, legal vs. IT, and in-house vs. outside counsel.  It’s obviously still a challenge and will be interesting to see how these communication patterns evolve as the courts put more emphasis on resolving issues and disputes before seeking judicial assistance.

“…Cloud users will undoubtedly benefit from advances in technology as well as the experience that cloud administrators have gained in responding to e-discovery requests.

The hope is that these efficiencies will translate directly to the end-user. At the end of the day, in-house counsel should be confident that (if managed properly) the benefit of moving a company’s data to the cloud outweighs the risks and costs associated with producing data from the cloud as part of a lawsuit.”

Court Case Tests Right To Withhold Passwords

The Department of Justice is attempting to compel a defendant to share her hard drive encryption key, which might violate her Fifth Amendment rights against self-incrimination.

Do Lawyers Need to Just “Eat Their Peas” (Learn E-Discovery)?

We all know the firms where certain lawyers don’t even own a computer, let alone understand concepts and processes behind ediscovery.  This blog post provides some great perspective on those individuals and firms.

How to Manage ESI to Rein In Runaway Costs

It’s easy for e-discovery costs to get out of hand.  This article provides some good insight into creating a consistent, defined, and documented process for handling e-discovery.

Some good reminders about when to start thinking about records management and ownership of documents.  We often think about the implications of deleting records too soon, but the opposite can also affect litigation significantly.

Automated Management of Legal Holds 

An interesting blog discussing the prevalence and adoption of automated legal hold models.  A look at some recent federal court cases and how the legal hold step has become an indispensable element of e-Discovery.

Keyword Advertising and Trademark Infringement

Ever wonder if there are any repercussions for purchasing a competitor’s name/trademark for your ad campaign?  This article sheds some light on recent court cases that address these issues, but it may not give you the clear cut answers you’re looking for.  Since most keyword litigation cases don’t make it as far as the courtroom, there’s few precedents to choose from, and some are contrary.  A great article to get an overview and make an informed decision.

Social Media Continues To Impact Litigation and Trial

A brief look at recent scenarios where social media has had a significant impact on litigation.  Some good links to resources that discuss different aspects of social media and how it is affecting all legal matters, including use in litigation and jury selection.

Questions about Google+?  Here’s a Cheat Sheet.

With millions of early adopters claiming it’s the best thing since sliced bread, and others wondering how in the world it’s different from Facebook, here’s a quick guide to the ins and outs of Google+.