#totaldiscovery

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Supreme Court Approves FRCP Amendments

This week’s blog comes from BIA’s Barry Schwartz and Brian Schrader.  

Over the last several years, there has been no shortage of articles, webinars, forums, and blog posts about the proposed amendments to the Federal Rules of Civil Procedure. But now, with the Supreme Court’s decision on April 29th, the FRCP amendments are just one small step away from becoming effective. Absent congressional action (and none is anticipated), the amendments should become effective on December 1, 2015.

Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55 will each be subject to modifications, while Rule 84 and the Appendix of Forms will be eliminated. While we won’t review each rule change in this post (go here for that in-depth discussion), the amendment to Rule 1 sets the tone for the amendments generally, stating that the FRCP should “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Anyone involved with eDiscovery—whether as clients, attorneys, experts, or vendors—should review the changes now (if that hasn’t already happened) and prepare for those changes well in advance of the expected effective date. Two of the primary driving forces behind the amendments are the goals of shortening discovery time frames and helping ensure reasonable costs—neither of which is achievable absent planning and preparation. The rules also up the expectation that the parties and counsel will be informed and prepared for mandated conferences.

One special note is that Rule 16(b)(3)(B)(iii) now specifically allows ESI preservation efforts and obligations to be addressed in scheduling orders. Hence, given that preservation efforts likely now will be discussed as a matter of course at the very first conference, it is even more important that when a triggering event occurs, proper action be taken to issue a legal hold notice and avoid the risk of a spoliation claim or other adverse order.

Solutions, such as our TotalDiscovery platform, enable the quick, efficient, and inexpensive issuance and maintenance of litigation holds and help ensure the defensible preservation of ESI and other information. With its many features, including fast and flexible legal hold creation, simple acknowledgement tracking, automated reminders and releases, full audit trails, detailed reporting, and much more, lawyers and companies now have an easy—and inexpensive—way to comply.

In the end, we have two simple words of advice: Get Ready!  Expect time frames from filing to court room to be shorter. Expect judges to be more informed on and involved in eDiscovery issues than ever before, including discussions of the processes and tools available. Expect opposing parties to know what can be accomplished through technology, what is reasonable to ask for, and what is not reasonable as well. Those are just some of the ramifications we expect the amendments to produce.

While the amendments may feel to some like they have been pending for an eternity, there is now a light at the end of the tunnel. December 1st is less than seven months away, and if you don’t start preparing now, that light at the end of the tunnel may be a locomotive heading in your direction . . .

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Humans Still Matter

This week’s blog is from BIA President Brian Schrader  

Unless you have been stranded on a desert island for the past several years, you’ve undoubtedly seen countless articles, whitepapers and even court opinions discussing how Technology Assisted Review (TAR) has changed – and continues to change – the eDiscovery landscape.  Indeed, it’s not just our industry but the entire world that is seeing incredible leaps and bounds in artificial intelligence, from self-driving cars to advanced analysis engines that can pour over thousands of data points to help speed and improve medical diagnosis.

Yet, more and more, we’re hearing about how humans still matter, and in fact, how humans often make analytics better.  In January, the New Yorker reported on how Netflix uses pretty amazing analytics to help determine what new original programming to develop (it’s truly a fascinating read).  But even with the sea of data Netflix analyzes, the final decisions still factor in a heavy dose of human analysis, namely in the form of Netflix’s CEO Ted Sarandos.

In his book The Signal and the Noise: Why Most Predictions Fail – but Some Don’t, author Nate Silver discussed how the National Weather Service has tracked and compared computer-only weather predictions versus those where humans review and contribute to those computer models.  The results, Silver reports, show that humans actually improve the accuracy of weather forecasts by up to 25% over computer-only predictions.

Just today, Wired reported on how the automotive supplier Delphi just completed a cross-country, 15-state, 3,400 mile test of a self-driving Audi Q5.  The article points out how quickly the technology is improving by contrasting that feat with a 2004 DARPA test where even the best self-driving car was only able to complete less than 8 miles of a 132 mile course, and that car got stuck and caught fire.  But even with such an amazing pace of advance across all industries, it’s still unlikely that we’ll completely be able to eliminate the driver anytime soon.  Even if and when we could potentially do so, it’s highly likely that humans simply won’t give up that x-factor that is the human element.

These lessons are not so different than those being learned by the legal industry when it comes to Technology Assisted Review.  Back in 2008, when there weren’t great commercial TAR solutions available, we created our own TAR solution with exactly that in mind – keep the humans, with the whole of their knowledge, expertise and experience, at the center of that solution. By doing so, we saw how combining knowledgeable, experienced experts with the latest and greatest analytics resulted in a better outcome than either could accomplish alone.

The overriding point across all of these experiences seems to be that, while analytics continues to advance by leaps and bounds, and improve (or at least impact) nearly every portion of our lives, we must not forget the crucial role that humans have played, and will likely continue to play for quite some time, in ensuring that the answers that come out of the black box du jour are the best and most accurate possible.  

We love hearing your feedback.  Please share your comments with us at [email protected].  Looking for great  eDiscovery education?  Check out our 2015 schedule of programs in our Knowledge Leadership Series on our education page.  As always, there is no fee to attend our educational programs.

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BIA Begins 4th Year of Webinar Series

Time flies when you're having fun!  On February 19th, we kick off our webinar series for 2015 with guest speaker and national expert Craig Ball, Esq. (details below).  This presentation will mark the 70th program presented in our industry-acclaimed Knowledge Leadership series of webinars and Private Briefings, with nearly 10,000 professionals attending these events.  The feedback from our attendees drives our agenda, and we invite you to check out and register for one or more of our upcoming webinars on our education page located here. As always, our programs arecomplimentary.    

An Ounce of Preservation is Worth a Pound of Cure: Top Tips for Preservation!

Date: 2/19/2015

Time: 1 PM Eastern / 12 Noon Central

We are kicking off our 2015 Knowledge Leadership Series of webinars with a bang. Joining us this month is national expert and speaker Craig Ball, Esq., joins Alon Israely, Esq., CISSP in a discussion of the latest issues and best practices for preservation.

Register for this Webinar

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What's New at BIA?

Our team just had a great experience at LegalTech in New York where we talked about our solutions for eDiscovery problems with visitors to our booth. We're excited to be back here blogging about what's new, and sharing tips and best practices with all of you. So, what's new?

BIA announced the release of new real-time features to its flagship, cloud-based TotalDiscovery solution. With the introduction of these new features, customers will be able to move through the entire eDiscovery process more quickly and efficiently thanever before.  Read the entire press release here.

BIA also announced the impending release of new HTML5-based document viewers for TotalDiscovery.  With this release, customers will be able to view a wide variety of data types directly within TotalDiscovery without the need for additional software, viewers or other plug-ins.  Read the entire press release here.

Next week, our regular blog series will return, and on the 19th of February our Knowledge Leadership Series Webinar will make it's debut for 2015 with guest speaker Craig Ball joining us.  Visit our education page here, where you can see our roster of programs for 2015, and register to attend.  As always, BIA's programs are presented at no charge to attendees.

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BIA at LegalTech February 3, 4 and 5

It's only a few days from LegalTech, and we're looking forward to seeing old friends and making new ones.  Our team is in a NEW booth location this year (Booth 331), and we'll be talking about some pretty exciting new features being unveiled in TotalDiscovery.  As always, our consultants will be on hand to answer your questions about discovery.  We'll see you February 3, 4 and 5 in New York!

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What's In Your BYOD Policy?

This week’s blog contributor is Barry Schwartz, Esq., CEDS.  Barry is VP of Advisory Services for BIA.

Today, one can get lost with the ever-growing list of acronyms associated with “bring your own device” (see table of acronyms below).  Regardless of your BYOD implementation choice, one overriding notion exists:  Have a written policy that addresses your choice and have it acknowledged by each participant.  The policy must spell out expectations from both sides:  yours and the user’s.

Components of the policy include:

A summary of your implementation choice.  There are three basic strategies for BYOD implementation:  strictly business only, walled garden, and limited separation. 

User obligations in the event of an eDiscovery need.  Clearly stated, if the user is identified as an individual placed on a legal hold, the user must preserve all data on the device and promptly make the device available for collection/preservation, if requested, with recognition that personal information or data stored on the device may be collected along with any business data given the nature of such devices.

Expectation of privacy.  The policy should clearly state there is no expectation of privacy if one is using a device for business purposes even if that purpose is comingled with personal information and personal usage. 

Form of the policy.  In writing that clearly discusses what is acceptable use and what is not. 

Acknowledgment of the policy.  The user should acknowledge the policy in writing or by an acceptable electronic method.

Implementation choice has a significant impact on your written policy:

A “strictly business” selection is perhaps the easiest to implement from an employer’s perspective.  All business all the time: it is our device and we can do what we need to with it at any time and you pledge to cooperate.

The “walled garden” approach is similar on the business portion of the device, whether the device is partitioned or has strictly business-only applications functioning alongside personal ones or business applications where data is not stored locally on the device (cloud or virtual applications).  Here, the privacy implications must be clear in the policy.  Even though use of the device is segregated (business from personal), it is generally not possible in an eDiscovery collection to only capture business use data.

The “limited separation” is as it sounds.  Some use of the device is business oriented, while some is personal.  Applications on the device may be used for business or personal purposes.  Regardless of the use, the written policy should state that while it is recognized that you are using the device for both personal and business purposes, you understand that if called upon due to some business reason (litigation, investigation, regulatory requirement, etc.) you will cooperate and make the device available for inspection and/or preservation as requested.  The policy should further state that it is possible the device may be unavailable to you for some reasonable time period to allow for the inspection or preservation to occur.

A clear written policy reflecting your BYOD implementation, or not (COBO), will provide a framework for your company or organization that gives clarity and sets expectations for your users as personal device use expands to an ever-greater level. 

Here is one statistic that will help in recognizing the importance of such a policy: the rate of employee implementation of their own devices is approaching 40%; in the next 2 years it is expected to grow to over 80%.

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Tempus Fugit

Today's blog is from Alan Marks, Senior Vice-President of Product at BIA.

If you are a regular reader of this space, you may have noticed that it’s been a long time since I’ve posted a blog on new / upcoming features. Well, that’s because our development team has been deeply engaged, spending gobs of time bringing you THE NEXT REALLY BIG thing in TotalDiscovery. In fact, it may even be the next big thing in eDiscovery! And now, the time is getting so close, I’m jumping up and down as I type this blog post!  But it’s not quite time to spill all the beans, and so I can only tell you that SOMETHING BIG is coming. 

  Anyway, I’m allowed to give you one hint, which you may have picked up on, it’s about that most precious commodity, time. Ya know how minutes turn to hours, hours turn into days, days turn into…well, you get the idea. So, we’re going to do something about that (and nope, it doesn’t involve wormhole travel).

  When? Hmm, can’t tell you that either, but there is this big legal technology conference coming up in New York in February….

  Want to get an early preview? We’re still working out the details, but if you want to be one of the first to see, just let me know at [email protected].

  OK, that’s all I can say. Keep tuned to this space.

Alan Marks

SVP Product

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Better Data Collections, Part Two: The Magic of Custodian Questionnaires

This week's blog contributor is Brian Schrader, President of BIA.

When one thinks of data collections for eDiscovery purposes, the imagination often conjures up images of computer forensics technicians using special tech gadgets to image hard drives, or, if you read our blog last week , custodians using simple web apps to defensibly collect targeted data with applications like our TotalDiscovery solution.

  But, there’s something else that should come to mind first: Custodian Questionnaires.  What does that have to do with data collections, you ask?  Everything.  That is, if you want to do it right – and cost-effectively.

  Custodian Questionnaires are nothing new, the concept having been around for many, many decades.  In the past, Custodian Questionnaires were completed either during individual in-person custodian interviews or by sending around a paper form for custodians to complete, with an unlucky paralegal or associate often tasked with interpreting handwriting and compiling the results.

  But that’s (hopefully) a thing of the past.  Most legal hold software (such as our TotalDiscovery Legal Hold module) now have integrated Custodian Questionnaire features that allow you to quickly and easily create and send questionnaires to your custodians via email and report on the results with a click of a button. 

  A note of caution here . . . some companies use “free” online survey software to complete this task.  Before doing so, you should read the fine print, as “free” generally isn’t free.  Often in return for “free” use of an online survey engine, you’re forced to give up any expectation of privacy, and the company providing that “free” service may be able to use your questions – and your custodians’ responses – as they see fit).

  So, why are Custodian Questionnaires so important – nay, critical – to effective and cost-efficient data collections?  Because they help you target those efforts and ensure that you don’t miss critical data sources.  With a proper Custodian Questionnaire, you can save time, effort and treasure – not to mention help avoid potential sanctions.

  As we mentioned in our last post, especially in light of the upcoming changes to the Federal Rules of Civil Procedure, the simple fact is that the defensibility of your entire eDiscovery process will be decided nearly entirely by the first few steps you take – that is, how you identify, collect and preserve critical and potentially responsive information.  Everything else after that can be fixed, but deficient collections more often than not result in lost data, which all too often leads directly to sanctions.

  With a well-prepared and thought-out Custodian Questionnaire, you can not only ensure that you are discovering everywhere that potentially relevant data lives, but just as importantly, you can show clear and convincing proof that you have taken your data preservation obligations seriously, and have put in place a well-thought-out plan for identifying, collecting and preserving information.  Indeed, how better to prove that your process was defensible than to show that you polled each and every custodian, specifically asking them to identify relevant data resources, and then worked those responses into your overall eDiscovery plan?

  What’s more, effective use of Custodian Questionnaires can help make the entire process more efficient.  Gathering information directly from custodians prior to the full onset of discovery will help you target the right data – and the right people.  The more you target your data collections, and the earlier you can eliminate any individuals initially identified as custodians but who have no relevant data, the more you will save in costs. 

  The single most effective way to control your eDiscovery costs is to control the number of custodians and the amount of data collected. Custodian Questionnaires help you gather the information needed to accomplish both in a defensible manner.

  And Custodian Questionnaires aren’t just for eDiscovery purposes either.  The process can be used to gather important facts, generate timelines and really dig into the information locked away in your custodians’ memories.  And you shouldn’t think of Custodian Questionnaires as a one-time thing, either.  There’s nothing stopping you from issuing multiple questionnaires over time as the case develops. 

  Custodian Questionnaires should be an integral part of your eDiscovery – really your litigation – strategy.  In short, the use of questionnaires gives you the ability to unlock an enormous trove of information, quickly and easily, allowing you to determine the primary actors in a matter and develop a much better overall picture of the facts surrounding a case. 

  If you’ve used Custodian Questionnaires before, but only for eDiscovery purposes, then you’re missing out on significant benefits.  And don’t worry, all those communications and responses are protected by Attorney-Client and Attorney Work Product privileges.

  In the end, one of the oldest tools in the litigator’s toolbox, the Custodian Questionnaire, can be the answer to helping to ensure that your entire eDiscovery process is found to be defensible – not to mention cost-effective.

  Try our TotalDiscovery Legal Hold & Custodian Questionnaire modules for free, utilizing our 30-day free trial offer, and see for yourself how much difference an effective Custodian Questionnaire process can make in your case!