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Slide Materials

To download a complimentary copy of today’s materials, please follow these instructions:1. Go to krollontrack.com/events2. Click on the “Course Materials” tab

3. Select today’s presentation, “Inside Scoop 2012: Ediscovery Trends in the Last Year”

4. Enter “December” as the “User ID and “webinar121212” as the “Password”

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Michele C.S. Lange, Esq.

Director, Thought Leadership & Industry Relations, Kroll Ontrack• Nationally-recognized expert in ediscovery,

computer forensics and legal technologies• Engages in industry relations, conducts legal

and market research to drive Kroll Ontrack’s legal technology product and service offerings

• Assists clients with integrating case strategy, from ESI preservation to litigation tactics

• Co-authored the ABA book “Electronic Evidence and Discovery: What Every Lawyer Should Know”

mlange@krollontrack.com

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Andrea S. Gibson, Esq.

Product Director, Kroll Ontrack• Leverages expertise in discovery law,

technology and methodologies to build cutting-edge ediscovery software and processes

• Experienced litigator and legal consultant: practiced law at Eccleston & Wolf (Baltimore) and served on ediscovery teams in toxic tort, antitrust and products liability cases

asgibson@krollontrack.com

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Pop Culture News 2012

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In This Issue

2012 Case Law Overview 2012 Year in Review

» Top Five Stories:1. TAR Approved by the Judiciary2. Social Media in Ediscovery3. August 2012 Ethics Rules Amendments4. Cloud Computing5. The Era of “Big Data” is Here!

Looking Ahead: Ediscovery News in 2013

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2012 Case Law Overview

In 2012, Kroll Ontrack summarized 70 salient ediscovery opinions—apportioned by topic as follows:

• Sanctions (32%) for spoliation, production disputes and noncompliance with court orders

• Procedural Issues (29%) such as search protocols, cooperation, production and privilege

• Discoverability & Admissibility (16%) of specific types of information, such as corporate e-mail stores and social media data

• Cost Considerations (14%) such as shifting and taxation of costs

• Technology-Assisted Review (TAR) (9%), predictive coding, and other advanced search technologies

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Themes from 2012 Case Law

Trends in notable 2012 ediscovery opinions:» Preservation, spoliation and sanctions still the most

common topic, but the total number of cases addressing it decreased significantly compared to 2011

» Cases addressing procedural issues, such as search protocols, cooperation and production saw the greatest increase

Going forward in 2013… » As litigants embrace emerging technologies, courts will have higher

expectations from counsel to develop and explain thoughtful collection, search, and production protocols before considering sanctions

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Ediscovery News 2012

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Technology-Assisted Review (TAR) For the first time ever, TAR Addressed and Approved by the

Judiciary in 2012» “Counsel no longer have to worry about being the first ‘guinea pig’ for judicial

acceptance of computer-assisted review … [TAR] can now be considered judicially approved for use in appropriate cases.”

– Da Silva Moore v. Publicis Groupe, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012)

Following Da Silva Moore, several other courts approved TAR » Global Aerospace, Inc. V. Landow Aviation & In re Actos (Pioglitazone)

Products Liability litigation – Both cases with large document corpuses, detailed search, sampling and quality control protocols

» EORHB, Inc. v. HOA Holdings, LLC – a Delaware court of chancery orders sua sponte that parties share same ediscovery provider for TAR

» Kleen Products – hearings to evaluate benefits of TAR

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Understanding TAR

Vernacular: Ediscovery community loves this technology, but not sure what to call it yet—TAR? IRT? Predictive Coding? Computer-Assisted Review? Machine Learning?

Eventually, the industry will decide on a standard term, but for now two things are critical:» (1) The technology behind the lingo; and» (2) That you, your firm, your adversary and the court

actually know what you mean when you say “technology-assisted review.”

Da Silva Moore strongly emphasized implementing an appropriate process, so knowing the technology and covering your bases is paramount

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Understanding TAR

Key concepts and metrics you must grasp before leveraging TAR:

PrecisionFraction of relevant documents within retrieved results – a measure of exactness

RecallFraction of retrieved relevant documents within the total relevant documents – a measure of completeness

F-MeasureHarmonic mean of precision and recall Hot

Not

All documents

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Understanding TAR

Key concepts and metrics you must grasp before leveraging TAR:

PrecisionFraction of relevant documents within retrieved results – a measure of exactness

RecallFraction of retrieved relevant documents within the total relevant documents – a measure of completeness

F-MeasureHarmonic mean of precision and recall

HotNot

1) Perfect Recall; Low precision

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Understanding TAR

Key concepts and metrics you must grasp before leveraging TAR:

PrecisionFraction of relevant documents within retrieved results – a measure of exactness

RecallFraction of retrieved relevant documents within the total relevant documents – a measure of completeness

F-MeasureHarmonic mean of precision and recall Hot

Not

2) Low Recall; Perfect Precision

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Understanding TAR

Key concepts and metrics you must grasp before leveraging TAR:

PrecisionFraction of relevant documents within retrieved results – a measure of exactness

RecallFraction of retrieved relevant documents within the total relevant documents – a measure of completeness

F-MeasureHarmonic mean of precision and recall Hot

Not

3) Arguably good recall and precision

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Understanding TAR The TAR process, generally:

Pay close attention to evolving case law and best practices, both of which are in relative infancy at this point.

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Social Media

2012 cemented social media as staples in everyday communication:» Facebook surpassed 1 billion users» Twitter surpassed 500 million

80% of companies are currently using social media to communicate with potential clients and drive new business.

Many companies now leverage internal social media platforms:

Social media isn’t going away, and it’s no longer feasible to ignore it in the personal or professional realm…

Typical websites now offer 4+ links to share on social media.

Social Media – Ediscovery Issues

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Discoverability: Courts settled that social media is discoverable, but not how much is discoverable

Mailhoit v. Home Depot U.S.A., Inc. The Federal Rules do not grant a “generalized right to rummage at will through information [a person] has limited from public view” absent a Rule 34 showing of “reasonable particularity” in request for data.

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc. Reasoned that social media data was the logical equivalent of an “everything about me” folder with a bevy of relevant information.

Private Sections?

Narrow Broad

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Social Media – Ediscovery Issues Obligations to preserve and collect apply to Social Media, but:

» Data changes very frequently and stored on third-party servers» Security and privacy setting may block access» Few reliable technologies for social media preservation

Start early and obtain consent before collecting!!!

Contents of these sites are not self-authenticating» Proactively obtain as much evidence as possible

– subscriber reports from the platform provider– relevant metadata, such as when and where it was posted

Laws and practices frequently changing, pay close attention to evolving case law and best practices!!!

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ABA Amends Ethics Rules in August 2012 The ABA House of Delegates approved recommendations

sponsored by the ABA Commission on Ethics 20/20» Of special interest to ediscovery practitioners is Recommendation

105A, which amends existing rules as follows: Rule 1.1 – Comment [8] adds an attorney’s duty to stay informed about changes

in practice and relevant litigation technology Rule 1.6 – Adds section (c), identifying duty to prevent inadvertent disclosure of

confidential client information Rule 4.4 – Adds “electronically stored information” to provision about sending

prompt notice when lawyer receives third party information

The connection between ediscovery and current ethics rules is growing stronger with each case issued

NEW8/12

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Rule 1.1, Cmt. [8] – Maintaining Competence

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”

NEW8/12

Ability to Examine and produce ESI is central to managing ediscovery: Duty requires competence in locating, reviewing, and producing ESI in litigation and regulatory work!!!

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Rule 1.6 – Confidentiality of Information

NEW8/12

Large data volumes make protecting privilege more difficult, but counsel must familiarize themselves with Fed. R. Evid. 502 and consider entering protective orders, quick peek, and clawback agreements

“(c) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.”

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Rule 4.4 – Respect for Rights of Third Persons

NEW8/12

Comments explicitly state: “metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”

“(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”

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Cloud Computing – What is it?Examples of cloud

platforms:

These platforms contain ESI potentially relevant to litigation!

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Why Are We Talking About the Cloud?

Simplicity:» Fast deployment» Uptime commitments» Minimal expertise requirements

Cost Savings:» No hardware investment» No refresh cycles» No maintenance or upgrades costs

Possibility of…» Infinite scalability and resources» Collaboration across systems

Flexibility:» Rapid Market adaptation» Platform independence» Ubiquitous access models

Potential Benefits of the Cloud:

….“That ediscovery will live primarily in the cloud isn't a question of whether but when.” -August 2011 Legal Technology News

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The Cloud’s Dual Impact on Ediscovery1. Information governance (IG)

» Storing information in the Cloud (e.g., hosted email archiving)– Raises significant preservation and collection issues

2. Processing and review» Ediscovery processing will almost always be lower cost and more efficient in

the Cloud– More elasticity and scale; no upfront hardware investment– If you review documents in an online review tool you already depend on the cloud to

facilitate ediscovery– Added benefit of third-party experts and project managers

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Mitigating Cloud RisksRisk Mitigation TacticLocation Keep data within specific data centers or countries

Accessibility Understand the process for getting data out of the cloud; ensure confidentiality is protected from other cloud tenants

Preservation Clarify service agreements for how litigation holds will be implemented in the cloud

Security Ask who is going to have access to the data and what security measures will be provided

Integrity Inquire about the company's experience, reputation, financial stability and disaster recovery plans

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The Era of BIG DATA is Here!!!

The total amount of global data in 2012 predicted to reach 2.7 zettabytes.

Source: IDC, “The Digital Universe” (2011)

It is projected that organizations will need to deal with 50 times more information by 2020 than they're managing today.

Source: IDC, “The Digital Universe” (2011)

From a litigation perspective, 1 in every 3 corporations involved in ediscovery averaged more than 2.5 terabytes of data per legal matter in 2011. That’s a 20% increase in the last 3 years.

Source: IDC, “Leveraging Cloud-Based Delivery Capabilities for Do-It-Yourself (DIY) eDiscovery” (February 2012)

Wait… how much?

Source: Cisco, The Internet in 2015 is the Dawn of the Zettabyte Era

…a Zettabyte is approximately one trillion gigabytes!!!

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Big Data = Big Headaches for Unprepared Attorneys Many sanction awards in 2012 stemmed from counsel trying to

keep pace with the era of “big data.”» Coquina Invs. v. Rothstein, 2012 WL , 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012) -

Over 200 defense attorneys tasked with collecting, reviewing and producing ESI constituted “a case of too many cooks spoiling the broth,” amounting to insufficient production, a finding of gross negligence, and sanctions.

Courts were all over the map regarding appropriate preservation and spoliation standards in “big data.”» Chin v. Port Auth. N.Y. & N.J., 2012 WL 2760776 (2d. Cir. July 10, 2012) – Not

negligence per se; diverged from Zubulake and favored a case-by-case analysis» Voom Holdings LLC v. Echostar Satellite LLC, 2012 WL 265833 (N.Y. A. Div. Jan.

31, 2012) – Applied Zubulake; failing to implement hold an automatic deletion of e-mail amounted to gross negligence

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Ediscovery News in 2013?