E-Discovery Certification: A Must for Legal Professionals

One of the fastest growing professions in the legal services industry is that of E-Discovery professionals. E-discovery refers to the process by which electronic documents such as emails, word documents, spreadsheets, and audio and video files are admitted as legally acceptable evidence for use in litigation cases.

While it may be simple enough for litigants to produce electronic documents to support their cases, the actual federal requirements, issued by the United States Supreme Court in 2006, are quite stringent and as such, many may find their electronically documented evidence actually being deemed inadmissible and subsequently tossed out. It therefore takes an e-discovery professional, versed in the various nuances of federal requirements for submission of electronic documents, to ensure successful document submission.

In today’s technologically driven world where more and more persons are choosing to communicate electronically, the issue of electronic documents being used as evidence in court cases is becoming increasingly prevalent. As such, the need for e-discovery professionals is growing. In Addition, this need is predicted to continue growing in leaps and bounds over the coming years.

The increase in the demand for e-discovery professionals has led to a demand for programs that are geared towards providing persons with the requisite knowledge and skills needed to operate in this capacity. These programs are called e-discovery certification programs and the number of programs available for industry players to choose from has been increasing steadily across the nation.

These programs are necessary because they bridge that all-important gap between modern technology and the rendering of vital legal services. As such, they serve to assist attorneys and those who work in the legal industry in the process of updating themselves and their firms so that they are able to function in this technology-driven world.

It is therefore very important for legal industry professionals to enroll in an e-discovery certification course and undergo some level of training in the process of e-discovery. In fact, certification in e-discovery may soon prove to be the deciding factor between attorneys who are able to effectively represent their clients in cases featuring electronically documented evidence, and those who cannot because of their inability to adequately handle the e-discovery process.

With the importance of training in the e-discovery process so clearly established, legal professionals should be happy to know that finding a certification program to enroll in is quite simple. One resource that may be utilized by persons seeking to enroll in e-discovery programs in their ‘neck of the woods’ is the internet. The internet is a great tool that can provide persons with information on countless available programs. Those interested in becoming certified may also seek referrals from other legal professionals who have already enrolled in a local program. With so many programs to choose form there really is no excuse for persons working within the legal industry not to get certified in the process of e-discovery.

E-Mails to Attorney From Work Computers Considered Privileged

 A New Jersey Supreme Court recently ruled that e-mails sent through a work computer are considered privileged.

An employee at a care center recently took this case to the state's high court after a lower court rejected her privacy claim. Plaintiff Maria Stengart had been contacting an attorney via e-mail on a work laptop to discuss a situation at her employer at the time, Loving Care Agency. After leaving the employer, it confiscated the computer and forensically made copies of all e-mails that were placed as temporary files on the computer, including the messages to the attorney. Once the plaintiff learned of the agency having copies of the files, she wanted them returned but the agency refused, thus resulting in the case going to court.

The first court case on the issue ruled in favor of Loving Care because the laptop was company property and Stengart knew that. An appelate court ruled differently, so the case went on the state's high court.

The New Jersey Supreme Court said that while companies have every right to maintain their reputations through policies regarding email, "employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.  Because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual--that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee's attorney-client communications, if accessed on a personal, password-protected e-mail account using the company's computer system--would not be enforceable."

While the case does give a positive push for the eDiscovery field, employees should be careful when sending e-mails to attorneys on company-owned laptops. Though Stengart did use a password-protected email account to send the e-mails to her attorney, the e-mails were saved on a temporary files folder on the computer, which allowed for the e-mails to be found. Employees and lawyers should continue to try to communicate over e-mail on their personal computers if possible. Even though e-mails between attorneys and clients are confidential, another party can still recover the files if left on a work computer. 

Monday Funny: Is eDiscovery a foreign language?

Thanks for our friend Gabe Acevedo for pointing out this good cartoon from the folks over at CaseCentral.

 

TERIS and kCura partner to deliver eDiscovery software Relativity to law firms and corporations

Seattle, WA– February 10, 2010 – TERIS announced that it has partnered with kCura as a Relativity Consulting Partner.  As one of the leading eDiscovery service providers over the past nine years, TERIS has implemented kCura’s world-class review platform, Relativity, to deliver a full range of capabilities for document review and analysis. Relativity provides image and native file review, powerful searching, diverse coding options, flexible workflow capabilities, integrated productions, Unicode and foreign language support, and concept searching: all delivered in a highly scalable, enterprise-grade solution.

Combined with TERIS’ existing portfolio of eDiscovery solutions, clients now have access to the broadest array of “best of breed” solutions – from culling to review. Corporations can use TERIS’ Relativity solution to reduce the risks and control the costs associated with litigation, while law firms will benefit from Relativity’s strengths as an industry-leading document review platform. 

 “TERIS continues to expand our review offerings to deliver industry-leading technology solutions to our client base. We provide a unique workflow that utilizes leading tools such as Relativity to empower our clients to work the way they want and need to work,” said Peter Sternkopf, TERIS Chief Technology Officer.  “TERIS’ Relativity review system allows our clients to focus on the documents they are reviewing; rather than the technology required to review them. This allows them to accelerate the document review process and subsequently reduce costs – without sacrificing the quality of review. “                                   

"We are excited to welcome TERIS as a Relativity Partner,” said Andrew Sieja, president and CEO of kCura.  “We look forward to working with them to help them deliver exceptional solutions to their clients.”

With the addition of Relativity, TERIS has greatly improved its comprehensive suite of hosting solutions for its clients that minimize cost and maximize efficiency through enhanced functionality. TERIS also features a deep technical Project Management team that has more than 60 technical certifications across the company.  By expanding its offerings and adding talented professional staff, TERIS is accelerating its leadership position in the litigation support industry and continues to deliver unrivaled value to its clients.

ABOUT TERIS

Founded in 1996, TERIS is the leading full-service litigation support service provider in the United States. TERIS provides Electronic Discovery, Computer Data Forensics, Consulting and Project Management, Managed Review and related services 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 operates a free job board for the legal profession at DiscoverLegalJobs.com and has offices in Seattle, San Francisco, Silicon Valley, San Diego, Phoenix, Austin, Dallas and Chicago. To learn more about TERIS, visit TERIS.com or follow the company on Twitter at Twitter.com/DiscoverTERIS.

ABOUT KCURA
kCura are the developers of the e-discovery software Relativity. Relativity is a web-based application servicing the analysis, review and production stages of the EDRM. kCura helps corporations and law firms with e-discovery challenges by installing Relativity on premises, as well as providing hosted on-demand solutions through a global network of partners in Asia, Australia, Europe, and North America.   For more information, visit www.kcura.com.

Media Contacts: David Kaufer, Vice President of Marketing and Communications, TERIS, 206-521-8717 or DKaufer(at)TERIS.com

Adi Elliott, kCura, (312) 676-5075 or aelliott@kcura.com

Holiday Gift Idea: "E-Discovery For Dummies"

From e-Discovery For Dummies by Linda Volonino, Ian Redpath

You can make e-discovery easier by knowing how the court separates electronically stored information (ESI) into two tiers; the seven basic steps in e-discovery; implications of the e-discovery federal rules; and the timeline that actually begins prior to litigation.

E-Discovery Categories of Electronically Stored Information

In e-discovery, electronically stored information (ESI) is divided into five categories, which are grouped into two tiers based on the effort and cost needed to access ESI. Keep these categories in mind when requesting ESI or responding to a request:

Category What It Is Accessibility
Active, online data ESI created, received, or processed; or that’s quickly and frequently accessed. Examples: hard drives and active network servers. First tier: reasonably accessible
Near-line data (short for near online) ESI stored on removable media or accessed via automated or robotic storage systems. Access speeds range from a few milliseconds up to 2 minutes. Examples: optical disk and magnetic tape. First tier: reasonably accessible
Offline storage and archives ESI sent to storage. Unlike the first two categories, offline ESI is accessed manually. Examples: magnetic tape or optical disks; referred to as JBOD (just a bunch of disks). First tier: reasonably accessible
Backup tapes, commonly using data compression ESI stored for backup or disaster recovery and not organized for retrieval of specific files or messages. Retrieving ESI requires restoring the entire tape and might require reversing the compression used to fit more bytes of data. The discovery of ESI from backup tapes requires proof that their need and relevance outweigh their retrieval and processing costs. Example: backup tapes. Second tier: not reasonably accessible
Erased, fragmented, or corrupted data Erased, overwritten, fragmented (broken up and stored in separate areas), or corrupted files (damaged by computer viruses, or a hardware/software malfunction) are the least accessible. This ESI might be accessed only after significant processing or might be impossible to access at all. Second tier: not reasonably accessible

Seven Steps of the E-Discovery Process

In the e-discovery process, you must perform certain functions for identifying and preserving electronically stored (ESI), and meet requirements regarding conditions such as relevancy and privilege. Typically, you follow this e-discovery process:

  1. Create and retain ESI according to an enforceable electronic records retention policy and electronic records management (ERM) program.

    Enforce the policy and monitor compliance with it and the ERM program.

  2. Identify the relevant ESI, preserve any so it cannot be altered or destroyed, and collect all ESI for further review.

  3. Process and filter the ESI to remove the excess and duplicates.

    You reduce costs by reducing the volume of ESI that moves to the next stage in the e-discovery process.

  4. Review and analyze the filtered ESI for privilege because privileged ESI is not discoverable, unless some exception kicks in.

  5. Produce the remaining ESI, after filtering out what's irrelevant, duplicated, or privileged.

    Producing ESI in native format is common.

  6. Clawback the ESI that you disclosed to the opposing party that you should have filtered out, but didn't.

    Clawback is not unusual, but you have to work at getting clawback approved, and the court may deny it.

  7. Present at trial if your case hasn't settled.

    Judges have little to no patience with lawyers who appear before them not understanding e-discovery and the ESI of their clients or the opposing side.

E-Discovery Federal Rules of Civil Procedure and Federal Rules of Evidence

During the e-discovery process, keep the e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence (FRE) close by. These federal rules apply to the process for preparing and producing ESI, as well as for resolving related disputes.

Here are some of the implications of these federal rules.

  • FRCP 16: Courts expect you to be ready for litigation, including being fluent in the IT and network architecture, so that the pretrial conference leads to agreements on what ESI is discoverable. FRCP 26(f) sanctions for not obeying a scheduling or pretrial order are a good thing to avoid.

  • FRCP 26: Provides protection from excessive or expensive e-discovery requests, except when you don’t deserve that protection.

    FRCP 26(a)(1)(C): Requires that you make initial disclosures no later than 14 days after the Rule 26(f) meet and confer, unless an objection or another time is set by stipulation or court order. If you have an objection, now is the time to voice it.

    Rule 26(b)(2)(B): Introduced the concept of not reasonably accessible ESI. The concept of not reasonably accessible paper had not existed. This rule provides procedures for shifting the cost of accessing not reasonably accessible ESI to the requesting party.

    FRCP 26(b)(5)(B): Gives courts a clear procedure for settling claims when you hand over ESI to the requesting party that you shouldn’t have.

    Rule 26(f): This is the meet and confer rule. This rule requires all parties to meet within 99 days of the lawsuit’s filing and at least 21 days before a scheduled conference.

    Rule 26(g): Requires an attorney to sign every e-discovery request, response, or objection.

  • FRCP 33: Defines business records that are created or kept in electronic format as discoverable giving the requesting party access to them.

  • FRCP 34: Establishes a structured way to resolve disputes over document production.

    FRCP 34(b): Establishes protocols for how documents are produced to requesting parties. As the requesting party, you choose the form of production. Most often, the requested form is native file because those files tend to reveal the most. You might not have the equipment or expertise to read the produced ESI easily if it’s not in native form or a form you pick. This is usually a matter of negotiation between the parties.

  • FRCP 37: Judges have the power, courtesy of Rule 37(f), to impose sanctions against a party "who fails to obey an order to provide or permit discovery."

    Rule 37(e): Creates a safe harbor from sanctions if you did not preserve, and therefore no longer have, ESI that’s requested provided that certain conditions and circumstances are met. Judges also have powers that are considered inherent in the court that expand the ability to impose sanctions beyond Rule 37.

  • FRCP 45: If you’re a nonparty to e-discovery, you’re protected from some of the costs or burdens that parties typically have to pay or endure.

  • FRE 502: Protects attorney-client privilege and provides some protection against inadvertent disclosure, if you’re quick enough to notice your mistake and meet other conditions.

    FRE 502(b): If attorney-client privileged or work product protected material is inadvertently disclosed, you might be able to get it back if you took reasonable steps to prevent the error; and noticed and responded promptly to fix the error.

  • FRE 901: Requires that ESI, like physical evidence, be authenticated to verify that it is what it claims to be. Metadata may be used to authenticate an ESI.

Lawyers are subject to ethical rules relating to e-discovery imposed by the Code of Professional Responsibility.

Prelitigation and e-Discovery Timeline

Adhering to a pre-litigation and e-discovery timeline will keep you on track. Before litigation even starts, you must start evaluating — with your IT team and legal counsel — where you stand in terms of your electronically stored information (ESI). Here’s the process:

  • Prior to litigation: Preserve, preserve. preserve. That is, you have the duty to preserve when a legal action is reasonably anticipated. You need to take affirmative action to prevent the destruction or alteration of what might be relevant ESI.

  • Day 1: Lawsuit is filed and complaint is served on the defendant starting the clock that counts off the days.

  • By Day 99: Litigants must participate in a meet and confer conference to negotiate an e-discovery plan.

  • By Day 120: A scheduling conference is held bringing together prosecuting attorneys, defendants, defendant’s attorneys, and the judge to schedule certain dates and deadlines for the case.

Autonomy unveils new collection-to-the-cloud solution for e-Discovery and compliance

Cambridge, UK and SAN FRANCISCO - November 10, 2009 - Autonomy Corporation plc (LSE: AU. or AU.L), a global leader in infrastructure software for the enterprise, today announced the availability of a next-generation collection solution for eDiscovery and compliance. The solution uses a scalable, distributed model to automatically search, identify, preserve and collect relevant electronically-stored information (ESI) to the cloud from laptops, desktops and more than 400 enterprise repositories, including file and email servers, archives, and Microsoft SharePoint. Collected ESI is then stored in Autonomy's secure, cloud-based archive, enabling organizations to perform defensible and systemized preservation and collection in the shortest amount of time to meet the preservation obligation. This new solution, which is a key part of Autonomy's industry-leading Legal Hold solution suite, enables global organizations to comply with data privacy laws around the world by ensuring that personal data that does not pertain to the legal case will not be collected.

Preservation and collection of relevant data is a critical step in the legal hold process, when an organization faces pending litigation or investigation. The new Autonomy collection solution enables global organizations to dramatically reduce both the risks and costs associated with the identification, collection and preservation of ESI, while ensuring compliance with government regulations, such as the U.S. Federal Rules of Civil Procedure (FRCP) and the COBS 11.8 in the U.K.

Legacy technologies for preservation and collection of ESI require inefficient manual processes that involve significant personnel and IT investments. These technologies can neither scale nor meet the needs of counsel to quickly preserve, analyze and understand data within the timelines set under the FRCP and other regulations. The challenge of legal hold, preservation and collection is further compounded by a global, distributed workforce, because legacy solutions cannot effectively identify and collect data without a continuous, high-bandwidth connection.

In contrast, the new Autonomy collection solution is the first in the industry that allows organizations to intelligently analyze and pre-cull data in-place with advanced conceptual search capability and then collect the relevant data directly to the cloud. It securely identifies data sources, distributes client software, and preserves and collects a forensically sound copy of relevant information directly to Autonomy's secure cloud-based archive, the Digital Safe. With Safe Harbor certification and data centers in both the United States and United Kingdom, Autonomy offers unmatched flexibility in the cloud.

"The increasing government regulations for eDiscovery remain a significant driver in all sectors. We have seen more than 40 new regulations that have come into effect in the last 12 months, such as the COBS 11.8 in the U.K," said Mike Lynch, CEO of Autonomy. "Regulators' hard-hitting new rules and hefty sanctions against organizations who do not comply with eDiscovery regulations have fueled demand for legally defensible search, collection, and archiving solutions. With this new announcement, Autonomy is offering the world's first Collection to the Cloud solution that enables organizations to preserve, search and collect all of the relevant ESI in the cloud, saving significant costs and time."

Please visit www.autonomy.com/legal-hold for more information on this new Autonomy collection solution.
About Autonomy

Autonomy Corporation plc (LSE: AU. or AU.L), a global leader in infrastructure software for the enterprise, spearheads the Meaning Based Computing movement. IDC recently recognized Autonomy as having the largest market share and fastest growth in the worldwide search and discovery market. Autonomy's technology allows computers to harness the full richness of human information, forming a conceptual and contextual understanding of any piece of electronic data, including unstructured information, such as text, email, web pages, voice, or video. Autonomy's software powers the full spectrum of mission-critical enterprise applications including pan-enterprise search, customer interaction solutions, information governance, end-to-end eDiscovery, records management, archiving, business process management, web content management, web optimization, rich media management and video and audio analysis.

Autonomy's customer base is comprised of more than 20,000 global companies, law firms and federal agencies including: AOL, BAE Systems, BBC, Bloomberg, Boeing, Citigroup, Coca Cola, Daimler AG, Deutsche Bank, DLA Piper, Ericsson, FedEx, Ford, GlaxoSmithKline, Lloyds Banking Group, NASA, Nestlé, the New York Stock Exchange, Reuters, Shell, Tesco, T-Mobile, the U.S. Department of Energy, the U.S. Department of Homeland Security and the U.S. Securities and Exchange Commission. More than 400 companies OEM Autonomy technology, including Symantec, Citrix, HP, Novell, Oracle, Sybase and TIBCO. The company has offices worldwide. Please visit www.autonomy.com to find out more.

Autonomy and the Autonomy logo are registered trademarks or trademarks of Autonomy Corporation plc. All other trademarks are the property of their respective owners.

How are EDD providers adapting to today's uncertain economy?

Thanks to Gabe Acevedo for pointing out this great article from Law.com about how EDD providers are adapting to the down economy (written by Jason Krause):

"There's an unusual dichotomy in the e-discovery industry right now. Industry observers see scores of e-discovery companies that have folded or disappeared as part of an industry shakeout, but at the same time there is agreement that there is still a growing opportunity to be had despite a slow economy. "There's more than enough work for discovery consultants," says Craig Ball, a court-appointed special master and e-discovery consultant in Austin, Texas. "In fact, as people recognize and understand the issue more, they have started to bring us in as early as they can."

Read the full story here

CT Summation Takes Top Slot in The Recorder's "Best Of" Poll

CT Summation, the premier provider of litigation workflow and eDiscovery solutions (EDD), today announced that it received first-place honors in the "Best Case Management Software" category in The Recorder's "Best Of" poll. The third-annual survey was limited to California State Bar certified attorneys and asked respondents about the business services and products they recommend to colleagues. CT Summation's first-place listing as the "Best Case Management Software" is further validation of its trusted, innovative tools among law firms and legal departments of all sizes.

 

"According to the American Bar Association, California has one of the largest populations of attorneys per state in the country, so this poll speaks volumes toward CT Summation's leadership position and trusted brand in the legal industry," said Tom Rump, general manager, CT Summation. "Simply put, the speed and accuracy that CT Summation gives to its clients to review, analyze and produce electronic documents is unprecedented."

The Recorder is Northern California's leading legal newspaper, serving the Bay Area's major law firms, corporate legal departments and individual practitioners with insightful, thorough coverage of the local and national legal scene. It can be found at http://www.callaw.com.

CT Summation understands the increasing challenge of litigators to deal with, access and manage ever-growing amounts of electronically stored information (ESI). The company's solutions, including the recently launched iBlaze 3.0, provide litigators with manageable, quick, easy and cost-effective ways to navigate the eDiscovery process. CT Summation customers are provided with the competitive advantage of gaining control of every piece of data related to a case.

TERIS is proud to be partners with CT Summation