This Blog to Become a Book! AND You Are Invited to Contribute to It!

I am very pleased to announce that the American Bar Association will soon publish a book based on this blog. It will be called e-Discovery: Current Trends and Cases. This will be, to my knowledge, the first time a legal blog has become a book, now sometimes called a “blook.” Although the book will not be exactly the same as the blog, it will be derived from and based on it. 

Thanks to all of you, my thoughtful blog readers, for the many encouraging comments and suggestions you have provided.  Your positive input and support led me to propose this project.  Thanks also to ABA Publishing for having the vision and energy to make it happen.

The ABA is rushing the book to print so that it will be available by December. That is extraordinarily quick for a book publisher, far faster than any of the other major legal publishers who also expressed an interest in the project. Due to the time-sensitive nature of this material, I felt that it was important to get to press quickly.  The ABA, which has been great to work with, is committed to making that happen.

So how can you be a part of this blog-to-book project? Leave a good, substantive comment on any of the blogs I have ever written, and it may be included in the book. One of the unique things about the new book is that it will include select comments by blog readers, and occasionally, my responses to these comments.  In a few weeks, I will have a chance to add a few additional blog comments to the final version of the book. So please, add your comments in the next two to three weeks and you may become a part of this blog-to-book project. Please do it now! 

As far as I know, this is also another first: an author opening up his book for anyone to review and add content to just before its publication. Take advantage of this opportunity and join me in providing content. This new field of law and technology is, or at least should be, both interesting and exciting. Help me spread the buzz by adding your ideas and insights. Keep it short and sweet, and your comment might make it to print.

Although comments will be anonymous and may be edited, the blog will remain online even after the book is published.  That means everyone will be able to access the blog and see the original comments, including commentators’ names when provided.  Another interesting thing about the project, one that I frankly did not expect, is that the ABA wants me to keep all of the blogs online, available to everyone for free, even though the book will be very close in content to the original blogs. They see the law blook as a win-win media convergence.  The ABA is following other mainstream publishers who, according to a Wall Street Journal article, have already discovered that blogs-to-books can be a recipe for success.

e-Discovery: Current Trends and Cases is expected to be about 90,000 words in length (including your comments). The blogs will be edited, and sometimes added to and rewritten, and then reorganized and presented by categories in Seven Chapters:

Chapter One - Introduction to E-Discovery
Chapter Two - New Ethical Standards for E-Discovery
Chapter Three - New Federal Rules of Civil Procedure
Chapter Four - Spoliation and Sanctions
Chapter Five - Metadata
Chapter Six - Search and Review of ESI
Chapter Seven - New Technologies

There will also be an Appendix with several useful reference materials, including the new Federal Rules of Civil Procedure on e-discovery.

I know from your feedback that the “blook,” like the blog, will be very accessible to all types of readers. Litigation attorneys with years of experience in e-discovery will enjoy the analysis and finer legal points. So too will sophisticated in-house counsel, and academicians. Still, the material is also very accessible to lawyers just beginning in this area, or those who just want to learn something about e-discovery, including paralegals, law students, and law firm IT support professionals. Since most of these blogs explore recent events and technology issues, as well as the law, they have also been of interest to many technologists and management professionals outside the legal profession. Many of my regular blog readers are non-lawyer IT experts and management involved in some way with e-discovery or general information management services.

If you like the blog, you’ll like the book too.  You will be able to order it online from the ABA as soon as it is released. If you would like, I can also endorse copies any way you want, just send me an email. They might make a good present for your clients and customers, and should be out in time for the holidays.

Again, my thanks to all of you, my law firm, and the ABA for helping to make this blog into a book, and thus spread the word even further of the interdisciplinary team solution to the many issues and challenges of e-discovery.

The Sedona Conference Releases Two New Must-Read Commentaries on “Email Management” and “Legal Holds”

The Sedona Conference has done it again and group-written two more excellent guides: one on Legal Holds, and the other on Email Management. Both were just released for public comment and may be downloaded from the Sedona website for personal use.

The Sedona Conference Commentary on Legal Holds: The Trigger & The Process (August 2007 Public Comment Version) provides much-needed guidance on an issue very troublesome to most large organizations: when and how to preserve ESI for purposes of litigation.  In their words:

The basic principle that an organization has a duty to preserve relevant information in anticipation of litigation is easy to articulate. However, the precise application of that duty can be elusive. Everyday, organizations apply the basic principle to real-world circumstances, confronting the issue of when the obligation is triggered and, once triggered, what is the scope of the obligation. This Article, intended to provide guidance on those issues, is divided into two parts: The “trigger” and the “legal hold.”

Once again, this is a group effort by a special committee of The Sedona Conference called the “Working Group on Electronic Document Retention and Production.” The Working Group includes many well-known experts on this tricky topic. Under the guidance of the group’s editors, Conor Crowley, Eric Schwarz and Gregory Wood, they agreed upon a set of eleven guidelines with detailed commentary on each. 

These are common-sense-type principles that will, I predict, be acceptable to most companies, although still challenging for many to implement. It is also likely that these guidelines will often be referred to by courts when reviewing the reasonability of a party’s legal hold activities in litigation.  If you can show that your organization made a good faith effort to follow these guidelines, then you will be in a strong position to argue that any loss of data that incurred anyway is not sanctionable.

The eleven guidelines include advice and language such as:  

Guideline 1 - notice of a “credible threat” of litigation as the trigger of the duty to preserve;

Guideline 2 - the “adoption and consistent implementation” of a written policy as a key factor to show reasonableness and good faith;

Guideline 3 - the need for established procedures to report potential litigation threats;

Guideline 6 - the need to issue a written legal hold notice in most circumstances; and,

Guideline 10 - the need for legal holds, once issued, to thereafter be “regularly monitored.”

Guideline 7 provides important input on the scope of a hold, including the key “proportionality” criteria that I have written about before, namely the consideration of the amount in controversy and related factors.

Guideline 7: In determining the scope of information that should be preserved, the nature of the issues raised in the matter, experience in similar circumstances and the amount in controversy are factors that may be considered.

The proportionality factor in determining the proper scope of a hold is often overlooked, especially by some plaintiffs’ counsel who still routinely make outrageously overbroad preservation demands.

The comments to Guideline 7 also point out that accessibility is another important factor to consider in determining the proper scope of preservation. In fact, the wording of Guideline 7 in the commentary is slightly different from the wording quoted above that appears at the beginning of the document. They both begin the same, but the version in the comments sections ends with ”accessibility of the information” as a factor that may be considered, instead of the first stated ”amount in controversy” factor. I think this is just a mistake that will be cleaned up in the final draft.

The comments do, however, make clear that the issue of the costs and burden to try to preserve certain types of data, including, as the comments mention, “voicemail and instant messaging” should be considered. In my view, this means that in many circumstances, not-reasonably-accessible ESI does not need to be preserved. The Sedona comments to Guideline 7 do not, however, go quite that far.  They instead make the point, which is not necessarily contrary because it is dependent on the facts, that just because a type of ESI is not-reasonably-accessible, does not mean that it is outside of the scope of a duty to preserve.

We all agree that it depends on the circumstances.  In some circumstances, the inaccessibility of ESI will take it outside of the scope of preservation, but in some circumstances it will not.  In my view, the general bias should be to exclude not-reasonably-accessible ESI from preservation.  As I have mentioned several times previously in this blog, I think Judge Scheindlin got it right in Zubulake IV when she held:

The scope of a party’s preservation obligation can be described as follows: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents. As a general rule, that litigation hold does not apply to inaccessible backup tapes, for example, typically maintained solely for the purpose of disaster recovery, which may continue to be recycled on the schedule set forth in the company’s policy. (emphasis added)

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). Backup tapes are, of course, a prime example of not-reasonably-accessible ESI.

Guideline 8 is the most detailed guideline:

A legal hold is most effective when it:
(a) Identifies the persons who are likely to have relevant information and communicates a preservation notice to those persons;
(b) Communicates the preservation notice in a manner that ensures the recipients will receive actual, comprehensible and effective notice of the requirement to preserve information;
(c) Is in written form;
(d) Clearly defines what information is to be preserved and how the preservation is to be undertaken;
(e) Is periodically reviewed and, when necessary, reissued in either its original or an amended form.

Guideline 8 comes with a sample Certification of Completion document (Appendix B) designed to serve as a checklist for the recipient to confirm that he or she has complied with a hold notice. It requires the recipient to certify to the general counsel’s office that they have searched a long list of locations where responsive ESI might be located, including the LAN server for their office, laptop and office computer, email, home computers, Blackberries, email trash bin and desktop recycle bin, “removable storage media, such as disks, CDs, DVDs, memory sticks, and thumb drives,” and “files of any administrative personnel working for me.” 

Many companies will dislike how extensive and complete this list is, especially the inclusion of home computers, removable storage media and secretarial ESI. The commentary softens the blow somewhat by clarifying that this is not a form; it is only a sample, and may not be appropriate for every case. Still, this long list could put a huge search burden on many employees that is not appropriate for many cases, and so this aspect of the commentary is likely to be controversial.

Another controversial aspect of Guideline 8 is its placement of the burden for search and preservation upon the individual employees themselves, instead of on the company, its IT department or automated procedures. This let-the-employees-do-everything procedure has been the norm in the past, but is beginning to be challenged by many courts, especially where there is inadequate follow-up. See Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, LLC, 2007 WL 684001 (D.Colo. March 2, 2007) and my prior blog on the subject Litigation Hold Is Not Enough: Sanctions Imposed Under Rule 26(g) for Negligent Collection and Preservation.

Email Guidelines

The second commentary on email is a short gem edited by Thomas Y. Allman, The Sedona Conference Commentary on Email Management: Guidelines for the Selection of Retention Policy (August 2007). The Commentary begins with a flurry of statistics showing the prevalence of email today, citing to one study estimating that 183 Billion email messages a day were sent in 2006.  This is quite a bit larger than the previous estimates I have seen of 60 Billion a day. Whatever, it is huge, and getting bigger every day, and everyone knows the strongest ESI evidence is usually an intemperate email.  See my prior blog Top Corporate Officers Continue To Write Embarrassing Emails. That is why most litigation today correctly focuses on email, and why this Email Commentary is so important.

The Sedona working group on email was able to agree on four general guidelines:

Guideline1: Email retention policies should reflect the input of functional and business units through a team approach and should include the entire organization including any operations outside the United States.

As the name of this blog indicates, e-Discovery Team, I obviously think they have it right to emphasize the need for the team approach in forming policies of any kind, not just email. The commentary explains that this should be an interdisciplinary team including Legal, IT and Management, including “Records Management, Compliance, Finance and representatives of major business units.” The commentary also mentions that the internal corporate team may want to utilize outside counsel, consultants and vendors. They also recommend that:

A fully engaged responsible person should be appointed to lead the team to work closely on implementation, including recommendations on budget or funding decisions as well as monitoring the program after implementation.

The next Guideline 2 points to the obvious need to understand the actual practices of the organization, as opposed to its written rules on emails, since in most organizations there is a gap between the two that the team needs to address.

Guideline 2: The team should develop a current understanding of email retention polices and practices actually in use within the entity.

The commentary includes a list of useful questions for the team to ask to explore the organization’s actual practices.

The third Guideline states:

Guideline 3: An entity should select features for updates or revisions of email retention policy with the understanding that a variety of possible approaches reflecting size, complexity and policy priorities are possible.

The commentaries on Guideline 3 point out that it is usually difficult to reach consensus between the different needs of the groups represented in the team, and suggests open discussion of the differences as the best approach.  See Osterman, “E-Mail Archiving Dependent upon Corporate Culture,” Network World (March 22, 2005) (describing the resolution of competing views of legal counsel who preferred to purge and a compliance officer who preferred to save email).

To help the team reach a consensus, the Guidelines include an Appendix with two opposite email policy statements.  Policy 1 is based on a “short default retention strategy” where emails are only retained for a short period (e.g., 30-90 days) and thereafter are automatically deleted. The user can only avoid this deletion “by taking explicit, affirmative actions” such as moving the email to a dedicated storage area. The other opposite Policy 2 is based on an “indefinite default retention strategy.” In this policy, email is retained on active servers for a time, and then “moved automatically to tiered storage and retained indefinitely” or some other specified period such as three to five years.

The fourth Guideline states:

Guideline 4: Any technical solutions should meet the functional requirements identified as part of policy development and should be carefully integrated into existing systems.

Most e-discovery teams studying these issues find that some kind of software and hardware purchases are needed to implement their recommended email practices. This guideline addresses this reality, and counsels the importance of carefully integrating the new purchases into existing systems.  The commentary notes that there are many different software and hardware solutions offered by competing vendors to solve these problems, and no one approach is superior. The commentary then provides a list of practical issues to consider when evaluating competing vendor proposals.

My congratulations and thanks to the hard work of ”The Sedona Conference Working Group on Electronic Document Retention and Production, eMail Management and Archiving Special Project Team.”  They have a long name, but their short, concise guidelines and commentary are a very practical and useful work. Every e-discovery team in America struggles with email issues and all will benefit from these pioneering guidelines.

Sedona’s New Commentary on Search, and the Myth of the Pharaoh’s Curse

The Sedona Conference has just released its Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (August 2007) for public comments.  A copy may be downloaded for personal use.  This Best Practices Commentary, like all of the Sedona publications, was written by a committee of expert members of The Sedona Conference, who agreed upon the content and wording.  This particular group is called the “Search and Retrieval Sciences Project Team.”  Writings by committee are usually an invitation for disaster, but Sedona consistently manages to pull it off, and do a first rate job, primarily, I think, because of the quality of their editors. The Editor-in-Chief for the Search Team is Jason Baron, about whom I have written several times previously, along with Executive Editors Richard Braman and Kenneth Withers, and Senior Editors Thomas Allman, James Daley and George Paul.

The Search Commentary begins by concisely stating the problems faced today to search high volumes of ESI.  It then offers three general solutions, followed by eight specific “Practice Points.” The comments contain both intellectual depth and good practical advice to all those struggling with the problems of search.

The Search Commentary is carefully considered and well written. Although I have a couple of suggestions on the comments, I fully agree with the committee’s observations and solutions.  Many will not.  In fact, I suspect that this publication will be quite challenging to many in the legal profession because it contradicts several well-established myths.  For instance, the Search Team acknowledges that most people consider:

manual review by humans of large amounts of information is as accurate and complete as possible - perhaps even perfect - and constitutes the gold standard by which all searches should be measured.

But the committee states that this is a myth!  Manual review may be perfect for a few hundred pages of documents, but fails miserably for a few hundred thousand, much less million, or billion. So much for the gold standard.

The Search Team also make the point, which is not controversial, that the large amounts of ESI in many lawsuits today has made the “venerated process of ‘eyes only’ review” both impractical and cost-prohibitive.  They contend that a new consensus is forming in the legal community:

that human review of documents in discovery is expensive, time consuming, and error-prone. There is growing consensus that the application of linguistic and mathematic-based content analysis, embodied in new forms of search and retrieval technologies, tools, techniques and process in support of the review function can effectively reduce litigation cost, time, and error rates.

This leads to the Practice Point 1 (of 8):

In many settings involving electronically stored information, reliance solely on manual search process for the purpose of finding responsive documents may be infeasible or unwarranted. In such cases, the use of automated search methods should be viewed as reasonable, valuable, and even necessary.

The automated search method of choice today is the almost-as-venerated process of keyword search review. It involves the use of select keywords that you think the documents you are looking for will contain.  Keyword searches also frequently include “boolean” logic, and can be expanded further with fuzzy logic, and stemming.  You then manually search the documents located by keyword search to determine relevance.  The manual review then frequently leads to adjustments in the query terms and repeat of the keyword search.  Most lawyers think that with this kind of iterative process, and skilled researchers, you can find most of the documents you are looking for. 

In fact, in a study done in 1985, lawyers and paralegals having special skills in this area searched a discovery database of 40,000 documents and 350,000 pages in a case involving a subway accident. David Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document Retrieval System, 28 Com. A.C.M. 289 (1985). At the end of the lengthy process, the legal team was confident that they had located about 75% of the relevant documents. In my experience, most attorneys think they have a similar, if not better, success rate.

Lawyers have been using keyword searches since the ’70s with Lexis and Westlaw to find case law.  I was first trained in this in 1978. At that time, Westlaw and Lexis each had mandatory video (VHS) training programs leading to certification. Once certified, you could use “dumb terminals” to access mainframes over modems.  It was a tremendous innovation in its day. 

It was a natural extension in the ’80s and ’90s to use the same keyword search technology to locate relevant documents in large sets of ESI. Lawyers and judges quickly endorsed this legal research method to also search for documents. As one judge put it, “the glory of electronic information is not merely that it saves space but that it permits the computer to search for words or ’strings’ of text in seconds.’ In re Lorazepam & Clorazepate, 300 F.Supp.2d 43, 46 (D.D.C. 2004). Keyword searching appeared to solve the problem of large volumes of electronic documents where the gold standard of “eyes only” review was not practical.  It might not be perfect like manual searches, but it got at least 75% of the documents, and so was an acceptable alternative.

The profession today is very familiar and comfortable with keyword searching.  Keyword search is the method employed by almost all lawyers when they use an automated search process.  In fact, I suspect that most lawyers are not even aware that there are alternatives to keyword searches.

That is why the committee’s next contention may prove very controversial: the supposed accuracy of keyword searches is just another myth! The Blair and Maron study in 1985 showed that, while the lawyers thought they had found at least 75% of the relevant documents, in fact they had only located 20%.

Can justice really be served with only 20% of the picture? Has the exploding cornucopia of ESI cursed the legal system with the pretence of real knowledge?

The Blair and Moran study, which is still the only one of its kind, led one commentator, Daniel Dabney, a lawyer and information scientist who now works for Westlaw, to equate the false confidence of computer searchers to the Curse of Thamus.  Daniel P. Dabney, The Curse of Thamus: An Analysis of Full-Text Legal Document Retrieval, 78 LawLibr. J. 5 (1986). Thamus was an Egyptian Pharaoh reported by Plato in his Phaedrus Dialogue to have criticized the invention of writing as a false substitute for real learning.  Thamus condemned writing, said to be a gift from the god Theuth (aka Hermes), as a curse in disguise. The Pharaoh predicted that writing would only lead to a delusionary “semblance of truth” and “conceit of wisdom.”  As Dabney put it in his article:

Since the mere possession of writings does not give knowledge, how are we to extract from this almost incomprehensibly large collection of written records the knowledge that we need?

Dabney argued that the Blair and Maron study proved that full-text computer assisted retrieval was not a valid cure to the Pharaoh’s curse.  The Sedona Search Team agrees:

. . . the experience of many litigators is that simple keyword searching alone is inadequate in at least some discovery contexts.  This is because simple keyword searches end up being both over- and under-inclusive in light of the inherent malleability and ambiguity of spoken and written English (as well as all other languages). . . .

The problem of the relative percentage of “false positive” hits or noise in the data is potentially huge, amounting in some cases to huge numbers of files which must be searched to find responsive documents. On the other hand, keyword searches have the potential to miss documents that contain a word that has the same meaning as the term used in the query, but is not specified. . . .

Finally, using keywords alone results in a return set of potentially responsive documents that are not weighted and ranked based upon their potential importance or relevance. In other words, each document is considered to have an equal probability of being responsive upon further manual review.

The Sedona Search Team notes that currently most e-discovery vendors and software providers continue to rely on outdated keyword searching. This is also what I am seeing. So, obviously this message may come as an unwelcome challenge to many e-discovery providers, and is therefore likely to be controversial.

But the Sedona Search Commentary does not end on a negative note; instead it points to new search technologies that will significantly improve upon the dismal recall and precision ratios of keyword searches. Here is how they summarize the herald of coming good:

Alternative search tools are available to supplement simple keyword searching and Boolean search techniques. These include using fuzzy logic to capture variations on words; using conceptual searching, which makes use of taxonomies and ontologies assembled by linguists; and using other machine learning and text mining tools that employ mathematical probabilities.

This part of the new Commentary is really interesting, albeit challenging, as the Team talks about alternative search tools and methods, and describes many of them in detail in the Appendix. 

The many incredible advances in technology over the last twenty years have created the legal morass we are in now.  In our present cursed state, it is impossible to find all relevant evidence, and a mere 20% capture rate seems pretty good.  The only viable solution is to fight fire with fire, and find a high-tech answer.  This requires a new kind of team synergy that I often talk about in this blog, a combination of Science, Technology and the Law. The Sedona search group concludes with a similar recommendation:

The legal community should support collaborative research with the scientific and academic sectors aimed at establishing the efficacy of a range of automated search and information retrieval methods.

The problems created by the information explosion impact all of society, not just the law. There is strong demand for new, improved search technologies, and this is becoming big business. Billions of dollars are now pouring into search technology research. For instance, in 2006 Google spent $1.23 billion, Yahoo spent $833 million, and e-Bay spent $495 million in core research and development activities. With this kind of commercial activity, there is good reason to hope that the Pharaoh’s curse may soon be lifted.

For more information on this subject check out the West Legalworks CLE webinar I did with Jason R. Baron - Director of Litigation, U.S. National Archives and Records Administration, College Park, Maryland; Doug Oard, Ph.D. - Associate Dean for Research, College of Information Studies, University of Maryland; and my law partner at Akerman in Los Angeles, Michael S. Simon. The 1.5 hour audio CLE is entitled The e-Discovery Search Quagmire: New Approaches to the Problem of Finding Relevant Needles in the Electronic Haystack.

Law Review Article Published on the Mathematics Underlying e-Discovery: “HASH: The New Bates Stamp”

As many people know, especially my friends in the e-discovery world, I am a real hash enthusiast. No not the corned beef variety shown here as a joke, and certainly not the illicit drug; I am talking about the mathematical wonder underlying e-discovery, the hash algorithm. In September 2006, I had a brainstorm on how to use the hash algorithm to replace the old fashioned Bates stamp as a document organization and identification protocol for electronic documents. The hash stamp can not only identify all computer documents like the 100-year-old Bates stamp does for paper documents, it can also authenticate them and reveal if there have been any alterations from the original. This would serve to protect the legal profession from the ever-present danger of fraudulent manipulation of the ephemeral bits and bytes that now make up electronic evidence.

The authentication properties of hash have long been known and used in e-discovery, but there was a serious problem with also using hash as a naming protocol: hash values are way too long. The two most common kinds of hash are called MD5 and SHA-1.  An MD5 hash is 32 alphanumeric values, and the SHA-1 has 40 places. Here is an example of the shorter MD-5 hash:

5F0266C4C326B9A1EF9E39CB78C352DC

That is too long a number for humans to use to identify an electronic document. For that reason, hash was deemed impractical for use as a document naming protocol, even though it had tremendous advantages in authenticity control.

That is where I got the “big idea” last September to truncate the hash values and just use the first and last three places. Under that system the above hash becomes the much more manageable: 

5F0.2DC  

As explained further in the Article, the six place identification alone avoids collisions 98.6% of the time. In the rare event they match, the full hash values can be consulted. Credit goes to computer expert, Bill Speros, an attorney consulting in litigation technology and data management, for doing the statistical study to confirm my intuition.

I got excited about the idea and wanted to promote it. I decided the best way to do this was to take my time, thoroughly research hash and related subjects, and then write a law review article on the subject.  The article would not only advocate this naming idea, but also fully explain what hash was all about, and how hashing was far superior to Bates stamping for the identification and organization of large volumes of ESI. 

Once I got into this project, it took on a life of its own.  Over the next nine months, I ended up reading every legal case and article that in any way pertained to hash, and hundreds more outside of the law on how hash was being used by scientists, spies, and mathematicians in a variety of technologies.  Before I knew it, I was up to a 44-page article with 174 footnotes.  Countless evenings and weekends were lost in the process. My golf handicap soared. But this near magical encryption formula called hash can be very addicting!

I am relieved to say that the writing part of the project concluded last month with the publication of HASH: The New Bates Stamp, 12 Journal of Technology Law & Policy 1 (June 2007).  The article advocates the truncated hash naming protocol, sets forth all of the case law in this area, and explains what hash is all about without actually going into the mathematics.  I readily admit that is beyond me.  

Although the Journal of Technology citation refers to this publication as the mid-year June issue, in fact it was not printed until mid-August.  The law students at the University of Florida School of Law running the journal did a good job of cite checking, proofing and otherwise making me look good.  So too did my son, Adam Losey, who is enrolled as a law student there and helped me with research. Other articles in the Journal on patents and copyrights are interesting too.  You can order a copy of the full Journal for $15.00 by an email to mail@wshein.com or by snail mail to the Journal of Technology Law & Policy at 218 Bruton Geer, Gainesville, FL 32611. Help the students out and buy a full copy of the journal. 

But if you just want to see the article right now, without the full law review formatting, you can download the article only - HASH: The New Bates Stamp, which I have uploaded here as a PDF file. You may copy and forward this article to others, so long as you do so without charge, and do not alter the contents.

I had never written a law review article before. So I was quite surprised when, after publication, a law professor explained to me that my task was not complete. After an article is published, it is standard procedure to then send copies of the article to as many people as possible that might be interested in the subject, and especially to judges who might cite to it.  Based on this advice, I sent out a couple of hundred copies of the article to experts in the field of e-discovery, including practitioners like myself, academicians, judges and e-discovery vendors.

I did so in the hope that they would not only use the article as a reference for all things hash, but also to promote the new naming protocol. I strongly believe that the use of hash is imperative to the future integrity of the legal system as we move from paper to electronic bits and bytes.  Digital evidence is so easy to change,  both intentionally and by mistake, that the legal profession needs hash to protect the authenticity of electronic evidence. The simple Bates stamp is not up to the task. 

Many who received the article expressed thanks, and many vendors especially have already expressed interest in using the protocol. The first response I received, within just two days of mailing, was from Judge John L. Carroll, Dean and Professor of Law, Cumberland School of Law, Samford University. Although I do not know Judge Carroll, I had of course heard of him, and heard him speak once on e-discovery. To my knowledge, he is now the preeminent academic authority on e-discovery.  I was surprised that he responded so quickly, and even more pleased to read what he had to say.  First  he thanked me for the article and then said:

I teach a seminar in e-discovery and evidence law and I am making it required reading for my students. It is really thoughtful and very well done.

I was proud to receive that, and several other positive responses. But I did learn, secondhand, that at least one recipient of the Hash article suspected commercial motives on my part, and criticized the mailing for that reason. I doubt they actually read the article; they just saw a letter from a lawyer sending an article and assumed it was another pesky “white paper” pointing to some software or consulting services.  But the truth is, I sell no hash software and offer no hash or hashing services. Also, so far as I know, no lawyer has ever been hired because of his or her knowledge of a mathematical formula, much less an encryption formula like hash.  I just think that “truncated hash marking” is a good idea whose time has come. I really believe that lawyers need to use hash to protect the integrity of electronic evidence, and thus protect the whole system of justice in the electronic age. A bit grandiose perhaps, but that is the motivation, not the delusional hope of some commercial gain.

But, this is America, and a few people apparently suspect there must be a hidden profit agenda here somewhere (not that there is anything wrong with that), so let me set the record straight.  This is strictly an open source, freeware proposal. Although I appear to be the first to think of the hash truncation idea, I do not want to delay or hinder anyone else from using the idea. Just the contrary; simply put, anyone can use the idea and proposal anywhere and any time they want, and they owe me nothing. I have nothing to sell, and don’t plan to.

As I explained in footnote 161 of the Hash article, a few patent attorneys I talked to while researching the proposal suggested that my idea might be patentable, but I had no interest in going that route. Commercial applications and ownership claims would only interfere with and slow down the application of this idea and delay the implementation of the proposal. My interest then and now is to freely disseminate and dedicate this idea into the public domain.

There may well someday be commercial exploitations of the idea by others, which is well and good.  If so, this will be by e-discovery vendors and other IT document management experts with far greater technical expertise and experience in large volume document management than I.

Anyway, this hash article has been a labor of love over the past year.  I urge you to please download and read a copy, and share it with any colleagues who might be interested.

Judge Affirms Magistrate’s Decision in the RAM Memory Case; No Minimum Storage Time for Electronic Information Before it is Discoverable

The June 20, 2007, blog reported on the Magistrate’s decision in Los Angeles District Court that held, for the first time, that the contents of a computer’s Random Access Memory (”RAM”) memory are discoverable. (The Magistrate’s Order is Columbia Pictures Industries v. Bunnell, Case No. CV 06-1093 (FMC(JCx) (Doc. No. 176)).   The Magistrate’s discovery ruling was appealed to the District Court Judge, Florence-Marie Cooper. Multiple amiciappeared and advanced “weapon of mass discovery” type arguments, urging the court not to interpret “electronically stored information” (”ESI”) under the rules to include RAM. The amici wanted the court to exclude RAM from discovery for several reasons, but primarily because of its “ephemeral nature.” The key issue here is the meaning of “stored.” As my earlier blog pointed out, information can sometimes be stored in RAM for less than one-billionth of a second.   The arguments were all rejected, and Judge Cooper’s  upheld the Magistrate’s earlier Order.  I put up a full copy of the final order here: Order Denying Defendants’ Motion For Review dated Aug. 24, 2007, Columbia Pictures Industries v. Bunnell,Case No. CV 06-1093 (FMC(JCx)) (Doc. No. 254).

Judge Cooper begins by identifying the issue:

At the heart of Defendants’ Motion for Review is the following question of first impression: is the information held in a computer’s random access memory (RAM) “electronically stored information” under Federal Rule of Procedure 34?

The Court then characterizes defendants’ arguments as unsupported rule construction:

Defendants and amici seek to engraft on the definition of “stored” an additional requirement, that the information be not just stored, but stored “for later retrieval.” They argue that “electronically stored information” cannot include information held in RAM because the period of storage, which may be as much as six hours, is too temporary. The Court finds this interpretation of “stored” unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM. The Court holds that data stored in RAM, however temporarily, is electronically stored information subject to discovery under the circumstances of the instant case.

The court found support for its broad interpretation of ESI in the Rules Advisory Committee Commentary to the 2006 Amendments to Rule 34 (copy included in the Rule 34 Blog Page above). The Commentary explained that ESI was not specifically defined so that Rule 34(a)(1) would be construed “expansively” to “cover all current types of computer-based information, and flexible enough to encompass future changes and developments.”

The court clearly rejected defendants’ and amicis’ position that ESI requires a degree of permanency not found in RAM. The “ephemeral” argument was again rejected on the basis of the old Mai Systems case, which concerned whether RAM could be copyrighted, not whether it could be discovered. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-519 (9th Cir. 1993). The Court did address the fact that some RAM lasts far less than a second. The Opinion only states that in this case the time period “may be as much as six hours.” 

The argument of amici that this ruling creates bad precedent, opening a floodgate of e-discovery, was rejected by simply amplifying a footnote in the Magistrate’s opinion that the ruling only pertains to this case.

In response to amici’s concerns over the potentially devastating impact of this decision on the record-keeping obligations of businesses and individuals, the Court notes that this decision does not impose an additional burden on any website operator or party outside of this case. It simply requires that the defendants in this case, as part of this litigation, after the issuance of a court order, and following a careful evaluation of the burden to these defendants of preserving and producing the specific information requested in light of its relevance and the lack of other available means to obtain it, begin preserving and subsequently produce a particular subset of the data in RAM under Defendants’ control.

Many contend that this does not really address the core concerns of amici, and demonstrates instead a kind of irresponsible naiveté as to the potential impact of the decision. They contend that the general refusal in this opinion to put any kind of time duration requirement on “information” before it is considered “electronically stored information” under the Rules, subjects everyone to the possibility of extremely expensive preservation, search, and production of ephemeral information.

It is interesting to note how the defendants’ website responded to this order. Recall that the effective date of the injunction was postponed until this district court review of the Magistrate’s order. The injunction requires that all user activities recorded in the webserver log be transferred from RAM and produced to plaintiffs. Just after the district court order was entered, but before the injunction could go into effect, the defendants excluded all users from the web whose computers are identified as located in the United States. When you try to use the site to search for any media you are directed to a page with the following message:

Torrentspy Acts to Protect Privacy.

Sorry, but because you are located in the USA you cannot use the search features of the Torrentspy.com website. Torrentspy’s decision to stop accepting US visitors was NOT compelled by any Court but rather an uncertain legal climate in the US regarding user privacy and an apparent tension between US and European Union privacy laws.

We hope you understand and will take the opportunity to visit one of these other fine websites: (omitted)

It will be interesting to see how the plaintiffs and court now react to this development. The latest District Court order notes that defendants’ webservers are now located in the Netherlands. This was the basis of additional arguments defendants made to reverse the magistrate’s orders. They construed Netherlands law as prohibiting the production of the server log data as required by the injunction. The District Court disagreed with defendants’ interpretation of Dutch law. Further, the Court held that even if foreign law did prohibit the disclosure, that would “not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that [foreign]statute.” It appears that this case is far from over, and defendants have already promised to appeal to the Ninth Circuit.

UPDATE: On December 13, 2007, this case came to a sudden end when the trail judge entered a default judgment against defendants for their intentional destruction of electronic evidence. Columbia Pictures, Inc. v. Bunnell, 2007 U.S. Dist. LEXIS 96360 (C.D. Cal. Dec. 13, 2007). The judgment had nothing to do with the RAM memory issues. Instead, the alleged pirate-facilitating-defendants were caught lying under oath, attempting to conceal  incriminating evidence, and sucessfully destroying other evidence that was probably also incriminating.  The full opinion can be downloaded here.

Judge Copper called defendants’ conduct “obstreperous” and concluded that they “engaged in widespread and systematic efforts to destroy evidence,” that severely prejudiced plaintiffs’ ability to prove their case. So as punishment, the Judge took away defendants’ right to trial, and entered a default judgment against them. Defendants’ reply was apparently in Dutch, but can be loosely translated as “Arrr.” All that’s left now is to see if these Jim-Lads will appeal.

For a good blog on this final chapter to the RAM memory case, see Larry Wescott’s blog of February 28, 2008. It will provide the details of this final opinion. For analysis of the entire saga, see the recent BNA article by Bill Hamilton and Martin Jaron, entitled  Battering RAM: Default Judgment Entered in Columbia Pictures v. Bunnell for Defendants’ Spoliation of Evidence.

Top Trends in e-Discovery Noted at ILTA Conference

I attended the annual convention last week of the International Legal Technology Association (”ILTA“). This conference is a big event for law firm IT staff, and a few lawyers like me. Over 2,300 techies turned out to attend 190 different educational sessions, and check out the 150 vendors on display. The ILTA event is also a networking and geek-social heaven; the big multi-vendor sponsored 007 party is rumored to have cost over a half million dollars. The seminars related to e-discovery were filled to capacity, whereas other areas seemed nearly empty. My favorite CLE-type event was a panel presentation on e-discovery trends by attorneys and IT specialists from several large firms, including DLA Piper and Sullivan & Cromwell. Browning Marean, the chair of Piper’s e-discovery team, whom I have heard before, was particularly effective in delivery. I understand from panelist Art Smith, of Husch & Eppenberger, that he prepared most of this list, and so Kudos to him too.  Here is their top ten list:

1. Courts Set Minimum Standards to Supplement the New Rules.
2. Discovery Battles Take Center Stage.
3. Sanctions Become Meaningful Threat.
4. Erosion of the Attorney-Client Privilege.
5. Inaccessible Data Not Really Inaccessible.
6. Best Practices Standards Begin to Emerge.
7. Abundance of Electronic Resources.
8. Law Firms Adopt New Approaches.
9. Corporations Finally Starting to Recognize the Risks.
10.Vendors Consolidate and Expand.

Although for the most part I think the panel got it right, I do have a few points of disagreement. Here is my take on the trends they discuss.

1. Courts Set Minimum Standards to Supplement the New Rules.

All Rules of Civil Procedure are typically general in nature, and deliberately avoid specifics of application or detail. A certain degree of vagueness and ambiguity are inevitable. The new Federal Rules of Civil Procedure on e-discovery are no exception. They substantially change the conduct of e-discovery, especially its timing, where parties are now required to confer within the first 100 days and reach agreement on e-discovery issues. But the rules do not spell out the details of the conferences and agreements. This leads to the situation we have now of vastly different interpretations and implementations between practitioners. It can also lead to unfair “gotcha” situations caused by non-compliance, either through inadvertence or lack of knowledge.

Everyone expects years of litigation before any bright lines of conduct come out of new e-discovery rules. In the meantime, several district courts have begun to issue guidelines of conduct they expect from counsel to comply with the new rules, especially new Rule 26(f) on the “meet and confer” conferences. This trend is very likely to continue and accelerate, and eventually to spill over into the state court systems. See the Blog Page above for a list of District Courts that have already issued some kind of local rules or guidelines for e-discovery. Many of the new guidelines specify exactly what the local court expects the parties to discuss and agree upon. These guidelines thus serve an important function to supplement and clarify several aspects of the new FRCP, and thereby help establish minimum standards of professional conduct.

While I agree this is indeed a current trend in e-Discovery, I do not think it is the number one trend, or even close. In truth, there are still only a small number of judges involved in this infant effort.

Chief among this still small group of minimum standard setters is Magistrate Judge Paul Grimm. He is a leader in e-discovery whose thoughts and published decisions in this area are discussed frequently in this blog. With the help of the local bar in Baltimore, he has written “Suggested Protocols” of what should happen at 26(f) conferences, and the “best thinking” on minimum standards for the kind of information to be exchanged. His suggestions include a very extensive list of discussion topics for any case involving discovery of electronic documents, including the scope of the litigation hold; identification of key custodians; nature and types of E.S.I. involved; metadata concerns; IT network infrastructure, back-ups; legacy systems with potentially discoverable E.S.I.; records management policies; form of production; de-duplication issues; preservation of data on “dynamic” systems and application of the Rule 37 “safe harbor” for document destruction; quick peek or clawback strategies for privileged documents; E.S.I. “deemed not reasonably accessible”; document tracking or Bates numbering; cost sharing issues; possibility of two-tiered discovery; protective orders for confidential information; and Rule 30(b)(6) depositions on IT systems.

2. Discovery Battles Take Center Stage.

This is a trend for discovery battles to take on a life of their own, and become far more important to the case than the actual merits. This trend in e-discovery started several years ago, and is still increasing every year. In fact, I would call this the number one trend. The new rules were in part designed to try to counter this trend, because it often results in cases being tried or settled based on side issues, instead of the merits of the underlying dispute. Unfortunately, I see no end in sight to this trend, and predict that it will continue for the next five to ten years, if not longer.

Although not discussed by the panel, in my view, this trend is driven by four forces: (1) businesses and governments have not spent the time and money required to organize and control their electronic records, and prepare for e-discovery; (2) the Bar, especially litigators, have not learned enough about e-discovery, nor their clients’ IT systems, and do not yet understand the importance of e-discovery to dispute resolution today; instead, most law firms still tend to relegate e-discovery to young associates, just like they did paper discovery; (3) the judiciary also needs to improve its understanding in this area, and recognize the special problems inherent in the preservation, search and production of ESI; and (4) the Plaintiff’s Bar is starting to recognize that e-discovery is a powerful litigation weapon, especially when suing companies with large IT systems and voluminous ESI storage.

The presenters at ILTA focused on the last factor as the driving force behind this trend and for authority, quoted a Plaintiff’s Bar publication on the subject of e-discovery, Maximizing Damages from the Defendant’s Spoliation of Evidence by Maury and Steve Herman, Trial Magazine May, 2005:

Attorneys who can build a case of spoliation, therefore, may gain a significant advantage in the presentation of his or her case to the jury, even in the absence of a separate cause of action or formal sanction by the court.  

The threat of sanctions for spoliation, and the tactical advantage that can provide, is present in any case involving large amounts of ESI. In view of the ease with which ESI can be lost, it can happen to any large organization involved in a lawsuit, even when they are operating in good faith and trying to implement a reasonable preservation plan. In many jurisdictions, it is not necessary to show bad faith to have sanctions imposed. It is only necessary to show the negligent loss or destruction of potentially relevant evidence at a time when the party was under a duty to preserve.

3. Sanctions Become Meaningful Threat.

This is directly tied to the last trend of e-discovery battles becoming the center of attention in many lawsuits. The goal of the battle is to obtain sanctions. Another goal, one that is unethical but in practice happens all too often, is to make the cost of e-discovery so high that the other side is forced to settle or capitulate.

The presenters referred to two recent cases for more information on sanctions: United Medical Supply Co., Inc. v. United States, 2007 WL 1952680 (Fed. Cl. June 27, 2007) and In Re September 11th Liability Insurance Coverage Cases, 2007 WL 1739666 (S.D.N.Y. June 18, 2007). The court in In Re September 11th Liability Insurance Coverage Cases imposed Rule 11 sanctions of $750,000 against several attorneys of record and an insurer for asserting unfounded denials and preventing discovery. The court also imposed discovery sanctions of $500,000 against the attorneys and insurer for delays in disclosing relevant documents and unjustifiably increasing the costs of discovery. I discuss the United Medical and several other similar cases throughout this blog. Suffice it to say that spoliation sanctions do not always require intentional egregious conduct. It can sometime result from “gotcha” situations or even traps laid by clever opposing counsel. (No, I will not discuss those traps!) The sanctions that a court can impose range from allowing comments to a jury about the conduct (which is not really a sanction, but is often in itself very effective as the above quote from the plaintiff’s Bar magazine indicates), to monetary penalties, preclusion of evidence, adverse inference instructions, or entry of a default judgment.

4. Erosion of the Attorney-Client Privilege.

This is a general trend today in all areas of law, not just e-discovery. The attorney-client waiver issue is a much discussed problem in the context of government investigations and criminal prosecutions. There is a waiver problem in e-discovery too, but for different reasons related to the enormous amounts of electronic documents that sometimes have to be reviewed and produced. When you review documents on a large scale, it is far easier to make a mistake and inadvertently produce a privileged document that should have been withheld and logged. The new rules also try to address this trend in the clawback provisions of Rule 26(b)(5)(B).

The presenters also noted that in the context of the side show of e-discovery spoliation, courts often allow erosion of attorney client privilege. These mandatory waivers typically happen in depositions of in-house counsel concerning production issues and in depositions of witnesses on what instructions they received from counsel regarding document preservation and collection. Further, most attorneys find that “transparency” is a very effective strategy to try to avoid these disputes. The parties and their attorneys freely disclose to opposing counsel the actions taken to try to determine what ESI is relevant and should be preserved, and the methods employed to then preserve and collect the ESI. This transparency in e-discovery can avoid, or at least mitigate, later charges of spoliation when a mistake is discovered. This kind of protection requires disclosure of what was previously hidden from opposing counsel under the veil of attorney-client or work product secrecy.

5. Inaccessible Data Not Really Inaccessible.

Here the panel was observing the beginning of a trend to extensively litigate Rule 26(b)(2)(B). This rules states that a party does not have to produce ESI that is “not reasonably accessible by reason of undue burden or costs.” But, the rule also provides that even if a party proves no-reasonable-accessibility, they may still be required to produce that ESI if the requesting party proves good cause. To make matters more complex, and ripe for litigation, if good cause is shown, the court may still order cost shifting, where all or part of the production expenses are shifted to the requesting party. Rule 26(b)(2)(B) is discussed at length elsewhere in the Blog and the Rule itself is included in the Blog Page above.

Although the panel pointed to litigation of 26(b)(2)(B) as a trend, I would enlarge that trend to include litigation of all of the new rules, but especially new Rule 34. Rule 34(a) includes for the first time, but does not define “electronically stored information.” This is already a hot button as is shown by the recent decision in Los Angeles interpreting ESI to include RAM memory, even though the electronic information may only be stored for less than a second. Columbia Pictures Industries v. Bunnell, Case No. CV 06-1093 (FMC(JCx)) (Doc. No. 176). The Columbia Pictures case and its implications have previously been discussed at length in this Blog.

Litigation of the requirements of Rule 34(b) as to form of production is another important trend, one that is here to stay for many years. It allows parties to specify the form of production of the ESI, and states that if no form is stated in the requests, the default is the form in which it is “ordinarily maintained,” or in a “reasonably usable form.”

This in turn raises the whole issue of native files and metadata, addressed at length in the Metadata Blog Page and elsewhere many times in this Blog. This is directly related to Rule 34(b) form litigation because ESI is “ordinarily maintained” in its native state with full preservation of metadata. In fact, concern and disputes about metadata is an important trend by itself, one which, oddly enough, the panel completely overlooked. Based upon the case law and interest among attorneys I have seen on this subject, I would put metadata in the top five of trends. Attorneys are concerned with whether they should produce ESI in native format with full metadata, or convert first to an image file, such as TIFF. They are also paranoid about inadvertently disclosing confidential information by not properly stripping metadata, and even about whether it is ethical to look at the metadata in another party’s production.

6. Best Practices Standards Begin to Emerge.

In addition to some Courts setting minimum standards, at least two private groups are working on the related task of establishing best practices standards. The dominant group by far in e-discovery is The Sedona Conference. and their numerous publications in this area, but primarily the Sedona Principles. (As a member of this group I am admittedly somewhat biased, but at this point everyone seems to agree with this assertion.) These principles were updated in 2007 and are described in detail in an earlier Blog.  Another group primarily made up of vendors is starting to have more influence, the “Electronic Discovery Reference Model Project.” They developed the now industry-standard nine-step description of e-discovery described previously. Like almost everyone else, I consider this a very effective model to understand and explain how e-discovery should work.

In the future, several new groups will probably emerge to help establish best practices for e-discovery. The most likely candidate is the ABA itself, which convened the “First Annual National Institute on E-Discovery” in 2007 described previously in this Blog. Moreover, in 2004 the ABA completed a well conceived e-discovery addition to the ABA Civil Discovery Standards. A lot of good work went into this project in 2004 to add e-discovery related Standards, and they are certainly worth a close study. You will see that even though they were prepared in 2004, the Standards closely track the new federal rules on e-discovery that went into effect on December 1, 2006.

Perhaps even more important than these public groups to the actual practice of law are the activities of private law firms around the country to establish their own internal best practices standards. The panel pointed out that such standards and forms have already been developed by a few of the leading firms in the country, and circulated to all litigators in the firm, but they knew of only one firm so far that actually required all litigators to follow the rules. Litigation shareholders in law firms are an independent bunch, and resist being told what to do. Browning Marean even admitted that trying to get the litigators in his firm to follow the guidelines he had come up with was like “herding cats.” Instead, they are more likely to wait until something goes wrong and then ask for help. Most of the best practices and forms that have been developed by law firms are kept secret, and not circulated outside of the firm. I know I have spent many days, if not weeks, working on creating and refining my law firm’s best practices standards, which I call check lists and forms, and these will most certainly not be found in this Blog.

7. Abundance of Electronic Resources.

This is the trend of increasing quality information on e-discovery. It is now relatively easy to find valuable resources in both electronic and paper form. Google will lead you to dozens of on-line sources, including blogs like this one. I also happen to know that several more paper books in this area are planned for publication soon. Of course, when you have a superabundance of information, a new problem arises of quality control. Many contradictory statements are being made, especially among competing e-discovery vendors, some of whom make shockingly inaccurate statements, or routinely engage in hyperbole and misstatements of the law. The misstatements are especially rife in summarizing what the new rules supposedly require companies to do (typically buy their software).

8. Law Firms Adopt New Approaches.

Private law firms are beginning to form interdisciplinary teams to render e-discovery services where litigation attorneys, litigation support paralegals and IT technicians, and other experts in the firm are blending their expertise. This is indeed a trend, but an even more important trend in my opinion, which the panel only briefly mentioned, is the formation of interdisciplinary teams in business and government to address e-discovery issues. This is the client’s e-discovery team concept discussed frequently in this Blog and the About Page above.

Instead of recognizing this all-important client trend, the panel focused on internal law firm teams. They also pointed out that law firms are now out-sourcing document review to lower-paid contract-lawyers to try to cut costs. Actually, this contract-lawyer trend started years ago, and some firms have even gone so far as to outsource relevance and privilege review to lawyers in India. This trend is expected to continue, not only for cost-savings, but also to fight the “boredom factor” for young associates and paralegals in some large firms. They would rather quit, no matter what the pay, than spend all of their time for weeks on end reading other people’s email, most of it boring. It may require cultural familiarity and speed reading skills, but no real legal expertise. So, let the hungry lawyers in India do it, but do they have the cultural familiarity to do it right? Many doubt that, and so almost all outsourcing today is to laid-back U.S. lawyers who do not want a regular nine-to-five job at a law firm for a variety of reasons.

The panel also suggested that it was a trend for law firms to keep e-discovery IT-type processing in-house, instead of shipping it to outside vendors, or allowing the clients to do it themselves. Personally I disagree, and do not think this is a new trend, but rather the final gasps of an older e-discovery paradigm. For years, many large law firms have tried to keep all of the services in-house. The firm would take responsibility for all e-discovery IT services, and would bill for it. They would bill a lot for it. This became a significant profit center for many law firms. In my opinion, this old model accounts for some of the high costs in e-discovery, and clients will no longer stand for it. Moreover, it turns law firms into IT business ventures with their own agendas, and moves attorneys away from the profession they were trained for. There are also many ethical issues raised by this questionable model of legal services, although I am sure that most firms do a good job balancing the competing interests involved.

Even the panel admitted that management in law firms with large in-house capacity were now struggling with these issues, and subjecting their business model to careful risk and reward analysis. I believe that the real trend here is, or soon will be, to move away from this captive exclusive model into discovery teams paired with clients and assisted by vendors. In the new model, a law firm IT department would only infrequently process client data , typically only in smaller and less complex projects. The larger projects would be performed by clients and vendors, under the supervision of law firms. This would not be a popular message at an ILTA conference, many of whose members make a living processing the data of the firm’s clients, and so would be at risk in the new paradigm. For that reason, I am not surprised that it was never mentioned at this event as an emerging trend.

9. Corporations Finally Starting to Recognize the Risks.

The panel thinks that corporate America is finally starting to get it, and recognize that they must get a better handle on their records, and be prepared for e-discovery. They correctly noted that for many years most large organizations have taken a kind of “ostrich” approach to the looming problem, and tried to ignore the disastrous law suits that happen to other companies. Consistent with that policy of denial and avoidance, they have instructed their legal counsel to adopt what the panel called “don’t ask, don’t tell” agreements with opposing counsel. This has worked in the past when two large companies were suing each other, and is usually referred to as the “MAD” approach, “Mutually Assured Destruction,” and e-discovery is the nuclear weapon that both sides informally agree not to use. If one company did dare to drop a bomb of an e-discovery request, the other would respond in kind. It kept the peace for many years, but is now as passé as the cold war itself. Of course, this approach has never worked in “David and Goliath” type lawsuits, typical in employment claims, as Zubulake shows. It is impractical today even in suits between “big boys” because if you “don’t ask, don’t tell” with e-discovery, you will never find out what really happened. Since almost all of the evidence is now electronic, if you ignore e-discovery, you ignore discovery. This is especially true for email, which is where most of the “smoking guns” in litigation today are found.

The panel contends that these days are now over, and the trend is for companies to wake up and get with the program. They are getting ready by: (1) appointing e-discovery liaison within corporate hierarchy, which is a start to the full-blown internal e-discovery team that I advocate in this Blog; (2) updating records retention policies on electronic records; (3) adopting new software tools for data recovery; (4) adopting new content management strategies; (5) selecting preferred e-discovery vendors; and (6) retaining one or two law firms to act as national e-discovery counsel to coordinate all e-discovery issues in litigation pending in various jurisdictions around the country.

They put this as the second to last trend, and I tend to agree with that. Not because it is not important; it is obviously very important, but because this is a new trend, still in its infancy. Many companies have not yet received the message; or they have heard the buzz, but do not understand its importance, and so continue to put it off until later. The truth is, most of the companies that are already pursuing e-discovery programs are driven by past e-discovery disasters, or at least big problems. Maybe they lost a case outright because of e-discovery mistakes, or they were slapped with sanctions, or maybe they won a case but in the process had to pay outrageous e-discovery costs and fees. More likely they had to settle a case, or pay too much to settle, just because of the e-discovery exposure. Some companies have had to be burned several times before they reacted. The sanctions and forced settlements continue as the number one trend in e-discovery in large part due to the failure of businesses to respond promptly or take proactive measures.

10. Vendors Consolidate and Expand.

The final trend noted was in the e-discovery vendor industry, which by all accounts now has income of several billion dollars a year. The larger vendors are buying up the smaller ones, and services are moving away from multiple specialty vendors, to a few full service vendors. The trend appears to be toward the one-stop solution vendor that handles all stages of e-discovery from records creation and retention to collection, review and production.

There are a few more major trends in the vendor area that they did not mention. First is the move to all on-line review, using secure connections to vendor computers, instead of storing ESI on law firm servers. Related to this trend is the move to a pricing structure based solely on ESI size alone, i.e., a charge per gigabyte for everything, including the software needed for attorney review. Another trend only briefly mentioned by the panel is the move away from simple keyword searching to more efficient “concept searches.” This is very significant, and will become much more so in the coming years. I have explored this further in prior blogs. Finally, there is the strong but controversial trend towards pure “native file review,” and away from image file review in TIFF-like formats. Many promote this development as a way to save costs by eliminating the conversion step, from native to TIFF. Others oppose it for a variety of reasons, including fear of inadvertent metadata disclosure.