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Slides from ‘TAR for the Real World: Practical Problems, Pragmatic Solutions’

As mentioned here yesterday and as covered in Law Technology News, Catalyst sponsored a panel discussion at the offices of Kirkland & Ellis in New York last week, TAR for the Real World: Practical Problems, Pragmatic Solutions.

Moderated by Law Technology News Editor-in-Chief Monica Bay, the panel featured Jason Baron, of counsel at Drinker, Biddle & Reath;  Clifton Dutton, senior vice president and director of strategies and e-discovery at AIG Legal Operations Center; Conor Crowley of Crowley Law Office; John Tredennick, Catalyst’s founder and CEO; and Jeremy Pickens, senior research scientist at Catalyst.

Below are the slides from the panel. Additional materials given out during the panel can be found here.

TAR’s Not Perfect, But It’s Here to Stay, Says ‘Law Technology News’ Report

“Technology assisted review is here to stay — and it has a future beyond e-discovery.”

Conor Crowley, Monica Bay, John Tredennick, Clifton Dutton, Jason Baron and Jeremy Pickens.

So writes Law Technology News reporter Victor Li in his report on the Catalyst-sponsored panel in New York last week, TAR for the Real World: Practical Problems, Pragmatic Solutions.

“Focusing mainly on how TAR can save litigants a tremendous amount of money, as well as explaining the accuracy of the process itself, the panel was directed towards true believers as well as those uninitiated in the world of TAR,” Li’s report continued. “Additionally, the panelists looked ahead at possible uses of TAR other than e-discovery.”

The panel, which was moderated by Law Technology News Editor-in-Chief Monica Bay, featured Jason Baron, of counsel at Drinker, Biddle & Reath (and former director of litigation at the National Archives);  Clifton Dutton, senior vice president and director of strategies and e-discovery at AIG Legal Operations Center; Conor Crowley of Crowley Law Office; Catalyst founder and CEO John Tredennick; and Jeremy Pickens, senior research scientist at Catalyst. The event was hosted by the New York office of Kirkland & Ellis.

Read Li’s full report of the panel at Law Technology News: Technology Assisted Review Isn’t Perfect, but It’s Here to Stay.

Redundant and Excessive Search Did Not Warrant Cost Shifting, Court Rules

An attempt by defendants to shift their costs to the plaintiff for searching electronically stored information has been denied by a federal magistrate judge in New York.

In Novick v. AXA Network LLC, the defendants argued that they were required to conduct searches that were excessive, duplicative and burdensome. They contended that, under the cost-shifting standard articulated in Zubulake v. UBS Warburg LLC, the plaintiff should be required to pay the $41,000 they incurred in conducting the search.

But U.S. Magistrate Judge Kevin Nathaniel Fox disagreed, concluding that the defendants never got past the threshold issue under Zubulake — establishing that the data was kept in an inaccessible format.

“Thus, under the Zubulake standard, the defendants failed to show that cost-shifting is appropriate because they did not establish that the production at issue was unduly burdensome or expensive, that is, that the data were kept in an inaccessible format,” Judge Fox wrote.

Search of Email

On Sept. 7, 2012, the judge presiding over the case entered an order requiring the defendants to conduct a search of 10 custodians for emails relating to roughly 800 customers, using search terms supplied by the plaintiff. The judge gave the defendants two months to provide the results.

Defendants retained an outside vendor to conduct the search, at a cost of $20,868.75. They were required to hire an outside vendor, they later explained, because of the large amount of data to be processed and searched (119 GB) and because of the number and complicated nature of the search terms.

Defendants also incurred $19,980 in legal fees in connection with the search.

In their motion seeking to shift these costs to the plaintiff, the defendants argued that the search yielded very few responsive documents and was largely duplicative of discovery they had previously provided. Further, they contended that the scope of the search, involving 800 customers, was way beyond the number necessary to find the sought-after information.

“It is not equitable for all corporate parties to have to bear the cost of production to individual parties, if the individual parties are permitted to request every manner of production that occurs to them,” the defendants asserted.

Citing the cost-shifting standard of Zubulake, they asked the judge to require the plaintiff to bear the costs of this search.

Search Not Burdensome, Plaintiff Says

In response to the defendants’ motion, the plaintiff asserted that the search was not a burden. Rather, the plaintiff argued, the search request was “extremely specific” insofar as it consisted of a list of 10 custodians cross-referenced against a list of clients.

Further, the plaintiff contended that the search should already have been conducted in conjunction with the defendants’ prior responses to discovery requests in the case.

Data Not Inaccessible

In addressing the motion, Judge Fox noted that the presumption in discovery is that the producing party bears its own costs, but that the court has discretion to shift the costs to protect a party from undue burden or expense.

In the e-discovery context, Judge Fox continued, the Zubulake case articulated a seven-factor test for analyzing whether costs should be shifted. But even before getting to that analysis, he said, the threshold question in Zubulake was whether cost-shifting should be considered. That, in turn, turns on whether the data is kept in an accessible or inaccessible format.

Such was not the case here, Judge Fox wrote:

The defendants do not contend that the e-mail messages requested to be searched pursuant to the September 7, 2012 order are kept in an inaccessible format. Applying the Zubulake standard, the Court finds that cost-shifting does not apply in this circumstance; that is so because, as noted by the Zubulake court, cost-shifting does not apply where electronic data “is kept in an accessible format,” and the defendants do not contend that the data they searched were kept in an inaccessible format.

For that reason, the judge denied the defendants’ motion.

Massachusetts Adopts New Civil Rules Governing E-Discovery

My home base of Massachusetts has become the latest state to adopt rules governing the discovery of electronically stored information in civil cases. The new rules, which the Supreme Judicial Court adopted on Sept. 24 and which take effect on Jan. 1, 2014, borrow heavily from the 2006 amendments to the Federal Rules of Civil Procedure, from the Federal Rules of Evidence, and from the 2007 Uniform Rules Relating to the Discovery of Electronically Stored Information developed by the National Conference of Commissioners on Uniform State Laws.

John Adams Courthouse in Boston, home to the Supreme Judicial Court.

The changes come as amendments to the Massachusetts Rules of Civil Procedure and are applicable to all trial courts in the state. The purpose of the new rules, according to the Reporter’s Notes, was to craft a process that would address four major points:

  1. Enable the parties and the court to deal with e-discovery early in the litigation, including the format for production of ESI.
  2. Address how to handle ESI that is “inaccessible.”
  3. Recognize that privileged information may be inadvertently disclosed in the context of e-discovery and provide a remedy for such disclosure.
  4. Provide protection where ESI is lost by virtue of the “good-faith operation of an electronic information system.”

A key change in the new rules is to create a “clawback” provision, modeled on the inadvertent disclosure language of Federal Rule of Evidence 502. The new Massachusetts Rule 26(b)(5)(B) provides that if privileged or work-product information is mistakenly produced, the producing party should notify the party that received the information. The receiving party should then return, sequester or destroy the information until the claim of privilege is resolved. The rule borrows from FRE 502 in directing the court, in resolving a claim of inadvertent disclosure, to consider whether:

  1. the disclosure was inadvertent;
  2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and
  3. the holder promptly took reasonable steps to rectify the error.

Another key change, a new Rule 26(f), provides for e-discovery conferences to be held early in the life of a case. Unlike the federal rules, this new rule does not mandate a meet-and-confer as a matter of course. Rather, any party may schedule an e-discovery conference “as of right” by requesting it in writing within 90 days after service of the first responsive pleading. Alternatively, a conference may be scheduled at a later time by agreement of the parties or by order of the court. Among the items that the rule specifies must be discussed at the conference are:

  • Any issues relating to preservation.
  • The form of production for each type of information.
  • What metadata, if any, is to be produced.
  • The schedule for production.
  • The method for asserting or preserving claims of privilege and work-product protection.
  • The method for asserting or preserving confidentiality and trade secrets.
  • Any allocation among the parties of production costs.

Within 14 days after the conference, the parties must file an e-discovery plan with the court. The court may enter an e-discovery order pursuant to the plan, in response to a motion, or in its own discretion.

Under the new rule, courts are authorized to limit discovery of ESI that is “inaccessible.” The rule defines that to mean ESI “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” The rule goes on to say:

The court may order discovery of inaccessible electronically stored information if the party requesting discovery shows that the likely benefit of its receipt outweighs the likely burden of its production, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.

Similar to the federal rules, the new Massachusetts rules also allow judges to limit the frequency or extent of e-discovery, even from an accessible source, “in the interests of justice.”

The Massachusetts rule also borrows from its federal counterpart in establishing a “safe harbor” that precludes a court from imposing sanctions when ESI “is lost as a result of the routine, good-faith operation of an electronic information system.” The Reporter’s Notes emphasize that this safe harbor language “was not intended to change any existing law in Massachusetts on the obligation to preserve evidence when litigation is reasonably anticipated or has commenced.”

A number of other, less-substantive changes were made to various rules to add references to e-discovery and ESI.

For more information on the new Massachusetts e-discovery rules, see the SJC’s order adopting the rules (which includes the full text of the new rules), the Reporter’s Notes, and the SJC’s press release.

New York Panel of E-Discovery Experts Will Address TAR for the Real World

If 2012 was the year in which technology-assisted review (TAR) came into its own, then 2013 is the year in which TAR is adapted to the realities of modern litigation. In the real world of e-discovery review, challenges come not just from the explosion of data, but also from the constraints imposed by rolling collections, tight deadlines, and the need to start review right now.

This will be the topic Oct. 10 in New York City as a panel of e-discovery experts address the tough questions that don’t get answered in introductory programs on TAR. This free luncheon program, TAR for the Real World: Practical Problems, Pragmatic Solutions, moderated by Law Technology News Editor-in-Chief Monica Bay, will address:

  • How do I deal with real world problems like rolling uploads, endless random documents and the need to wait for an expert?
  • How do I decide when I have enough responsive documents? What are the courts requiring?
  • How do I know if the black box worked? What kind of proof do I need?
  • What role do magistrates play and how much transparency is required?
  • How much money can I save over linear review? What kinds of cases are suitable?

The panel, which will also discuss the use of TAR for information governance, investigations, productions and other uses, will include:

  • Jason R. Baron, Esq., director of litigation at the National Archives and Records Administration and co-founder of the TREC Legal Track.
  • Clifton C. Dutton, SVP, director of strategies and e-discovery, AIG Legal Operations Center.
  • Conor R. Crowley, Esq., principal of Crowley Law Office, chair of The Sedona Conference Working Group on Best Practices for Electronic Document Retention and Production, and editor-in-chief of The Sedona Conference Commentary on Proportionality in E-Discovery.
  • John Tredennick, Esq., founder and CEO of Catalyst Repository Systems and longtime trial lawyer who was recently named by The American Lawyer as one of six “e-discovery trailblazers.”
  • Jeremy Pickens, Ph.D., senior research scientist at Catalyst and one of the world’s leading search scientists and a pioneer in the field of collaborative exploratory search.

The luncheon program is free for e-discovery professionals but is limited to 75 registrants. It takes place Oct. 10, noon-2:30 p.m., at the offices of Kirkland & Ellis, 601 Lexington Ave., New York.

For more information and to register, visit the registration page.

Conference Will Focus on Innovation in E-Discovery and Legal IT

Here is a conference worth considering: The first-ever Innovate Conference brings together a who’s who of speakers to explore various aspects of technology and the law, including e-discovery, information security, privacy and social media. The two-day conference, which will be held Oct. 17 and 18 in Winter Park, Fla., is presented by IT-Lex, a not-for profit organization committed to bridging the gap between technology and the law.

Of particular note to e-discovery professionals are panels such as:

  • “Predicting Predictive Coding,” in which noted e-discovery professionals Jason Baron, Maura Grossman and Ralph Losey discuss the future of predictive coding.
  • “E-Discovery and Due Process,” in which U.S. Magistrate Judge John M. Facciola, retired U.S. Magistrate Judge Nan R. Nolan, Anthony Mendenhall and Kenneth J. Withers will discuss whether the producer-pays system of discovery in the U.S. violates procedural due process.
  • “Clawbacks, Cooperation, and Competence,” in which Judges Facciola and Nolan join Ralph C. Losey, Tom O’Connor and Florida Magistrate Lawrence H. Kolin to offer pointers on on clawbacks and cooperation.

Other panels will cover topics such as “Computer Science for Lawyers,” “Privacy in the Digital Age,” and “Social Media and the Law.” A judicial roundtable will feature Judges Facciola and Nolan, as well as U.S. Magistrate Judge Paul W. Grimm.

IT-Lex was founded by Adam C. Losey, a lawyer at Foley & Lardner LLP. In addition to producing this conference, which is slated to become an annual event, the organization tracks updates in technology law and will be publishing a scholarly journal, the IT-Lex Journal.

Registration for the conference is $299 or $99 for law students. You can register and obtain more information at the conference website.

What is Predictive Ranking? Steve d’Alencon Explains in Video with Ari Kaplan

What is Predictive Ranking and how does it differ from predictive coding and other forms of technology-assisted review? In this video interview recorded by Ari Kaplan at the recent ILTA conference in Las Vegas, Steve d’Alencon, Catalyst’s vice president of marketing, explains how Catalyst’s Predictive Ranking technology and its Insight Predict product are unique within the e-discovery market.



Attending ILTA? Learn How to #GetThePower (And Win Cash and Prizes)

GetThePowerIf you are among those attending the annual conference this week of the International Legal Technology Association, you could have a shot at winning $100 cash on the spot and other technology products — and also learn how Catalyst’s Insight Predict gives you the power to succeed with e-discovery search and review like no other predictive coding tool.

ILTA attendees who wear a Catalyst #GetThePower pin and are “discovered” by Catalyst spotters roaming the exhibit hall and other conference venues may win $100 cash on the spot. Attendees can double their chances of winning by tweeting “#GetThePower at #ILTA13″ during the conference.

Click to Tweet: #GetThePower at #ILTA13 from @CatalystSecure http://tinyurl.com/kt43mga #ediscovery #SaaS #ESI #cloud

To pick up your #GetThePower pin, visit Catalyst at booth #716. Wear the pin during ILTA. If one of our spotters finds you wearing the pin at any conference event, you’ll receive $100 cash on the spot.

Double your chance of winning by tweeting #GetThePower at #ILTA13. This enters you into a daily drawing at ILTA (one entry per tweet). Prizes include Philips Hue Connected Bulb Starter Packs and the Nest Learning Thermostat.

Even if you are not attending ILTA, you can still be entered in our daily prize drawing by tweeting #GetThePower at #ILTA13.

Of course, when you stop by the Catalyst booth, be sure to ask for a demonstration of Insight Predict and the Catalyst Insight e-discovery platform.

New ‘ROI Calculator’ Shows Savings from Predictive Coding in Cost and Hours

The e-discovery industry is awash with reports that predictive coding and other forms of technology-assisted review can cut the cost and time of review. But missing from all the hype are specifics about what it means for actual cases, in real numbers. What you need to know is, “What can predictive coding do for my case?”

email_calculator_bankNow you can answer that question, thanks to the new Predictive Ranking ROI Calculator launched today by Catalyst. It lets you estimate how much you would save, in dollars and hours, over linear review. Simply enter a few basic assumptions about your review project, hit “calculate,” and see your estimated savings in both dollars and hours.

The ROI Calculator’s estimates are based on the results you can expect using Insight Predict, Catalyst’s own predictive coding tool. Insight Predict is based on Catalyst’s proprietary method of TAR, Predictive Ranking. As we’ve described before on this blog, Predictive Ranking differs from other TAR tools in its ability to respond to the dynamics of real-world litigation, including rolling collections, immediate deadlines and non-standardized validation procedures.

Go ahead and give the ROI Calculator a try. Even if you do not have a pending case, plug in some hypothetical numbers and see how you would fare. You have nothing to lose in trying it — except maybe excessive costs and hours in review.

‘The American Lawyer’ Names Catalyst CEO One of E-Discovery’s Six Top Trailblazers

Innovators_EDiscovery_300

George Socha and John Tredennick

The American Lawyer today named John Tredennick, Catalyst’s founder and CEO, as one of the six most important trailblazers in e-discovery. The magazine recognized Tredennick for his pioneering work in developing web-based repositories for litigation and e-discovery, first as a litigation partner at the Denver-based law firm Holland & Hart and then as founder of Catalyst.

A lot of lawyers have become evangelists for technology; Tredennick is more of a seer. First as a litigator at Denver’s Holland & Hart, then as the firm’s CTO, and finally as CEO of Catalyst Repository Systems, Tredennick early on spotted the potential of the big tech trends: the Web, the cloud, and Big Data. And he ran with them.

The article, written by reporter Alan Cohen, also recognizes as e-discovery trailblazers:

Tredennick is singled out as a trailblazer for his idea in 1996 to put a Web-based interface on a docketing system he had developed for his law firm. While cloud hosting is a routine concept today, the article notes, it was anything but routine back then.

Soon, Tredennick expanded the concept to documents, developing online repositories to facilitate access to documents by the firm’s lawyers as well as by clients and co-counsel. ”He was ahead of the curve by a mile,” Mark Brennan, counsel at Bryan Cave, tells The American Lawyer. “There were tools out there, but none of them were Web-based. John was insightful and foresightful in leading that effort.”

In 2000, Tredennick and his firm spun off the secure, web-based repositories into a separate business, originally called CaseShare before becoming Catalyst. There, as writer Cohen explains, the trailblazing continued:

Tredennick looked into his crystal ball and, once again, got it right. Anticipating dramatically increased data sets, he leveraged cloud and distributed storage technology, and moved away from the highly structured forms that data traditionally had to be stored in. Instead, he designed flexible, scalable systems. To put it in layman’s terms: It’s the approach that Google hit on, too.

The article does not mention something else Tredennick pioneered. He created the first system to combine PDF images with OCR text, thereby enabling litigators to see the original document while searching for keywords. This development won the 1999  Computerworld/Smithsonian Honor and remains a foundation of much of contemporary e-discovery technology.

As part of the same feature on e-discovery’s trailblazers, The American Lawyer also recognizes five influential federal judges.