Catalyst Repository Systems - Powering Complex Legal Matters

E-Discovery Search Blog

Catalyst E-Discovery Search Blog RSS Follow Catalyst on Twitter Join Catalyst on Facebook Catalyst on LinkedIn
Follow Us:
Technology, Techniques and Best Practices

Technology, Not Rules Changes, Is Answer to E-Discovery Costs, Arthur Miller Tells Senate Panel

Miller Testimony

Arthur Miller testifying this week.

In a post here last April, we discussed proposed changes to the Federal Rules of Civil Procedure designed to enhance cooperation and proportionality and to standardize sanctions. A preliminary draft of those rule changes has now been posted for public comment, with the commend period closing on Feb. 15. Before they could take effect, the rules would have to be approved by the Judicial Conference’s Standing Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court. If the rules make it through all those hurdles, then they would take effect unless Congress acts to reject or modify them.

Given how far the process still has to go, it was notable that a subcommittee of the U.S. Senate Committee on the Judiciary convened a hearing this week on the proposed rules package. The hearing, held Nov. 5 before the Subcommittee on Bankruptcy and the Courts, sought to address the question: “Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?”

In his opening statement, the subcommittee chair, U.S. Sen. Christopher Coons (D-Del), the former general counsel of Delaware-based W.L. Gore & Associates, made clear his opposition to the proposed changes, suggesting that they would do little to stem litigation costs while restricting the rights of plaintiffs in smaller cases.

Studies cited by the Judicial Conference note that discovery costs are not a problem in the majority of cases, and that discovery is a problem in a, quote “worrisome” number of cases. In those cases where discovery costs are a problem, which is to say that they are, quote “out of proportion,” to the needs of the case, it tends to be in cases that are high stakes, highly complex, or highly contentious.

In these cases, presumptive discovery limits are likely to be of no impact at all. In smaller cases, however, presumptive limits are likely to play a normative role, restricting the ability of the plaintiff in a small case to take needed depositions from a defendant who holds all of the information relevant to a fair lending or employment discrimination claim.

Three witnesses testified at the hearing, two against the proposed changes and one in favor:

  • Arthur R. Miller, professor at New York University School of Law and longtime Harvard Law School professor, who Sen. Coons introduced as “the nation’s foremost expert on civil procedure.” Miller opposed the changes.
  • Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. Ifill opposed the changes.
  • Andrew Pincus, partner with the law firm Mayer Brown LLP. Pincus supported the changes.

Miller presented a prepared statement in which he attacked the continuing erosion of the Federal Rules of Civil Procedure since their promulgation in 1938. Originally intended to promote the resolution of civil disputes on their merits, the FRCP has been amended and interpreted to create “a series of procedural stop signs,” Miller said, bringing the courts to the point where “the ability of a citizen to get a meaningful day in federal court is now in question.”

The proposed e-discovery changes “would magnify these limitations” without any empiric justification, Miller argued. He was particularly critical of the changes regarding proportionality:

[T]he proposed amendment to Rule 26(b)(1) represents a threat to the jugular of the  discovery regime as we have known it. It would replace the longstanding principle that the scope of discovery embraces anything that is relevant to a claim or defense with dual requirements—note the use of the conjunctive “and” in the proposal—that the material sought be  both relevant and proportionate according to five criteria that are both subjective and fact dependent. The Advisory Committee Note makes it clear that the proponent of discovery must show the request’s relevance and proportionality. This is a dramatic reduction in the scope of discovery.

In his statement, Miller took issue with the argument that electronically stored information has created a crisis in discovery, asserting that defense interests have advanced this position in order to justify limits on discovery. “Once again one hears Chicken Little crying that the sky is falling. It is not.”

Miller: Technology is the Solution

Miller is a compelling speaker, but my ears perked up their highest when he responded to a question by Sen. Richard Blumenthal (D-Conn). If the problem of rising costs is being driven by e-discovery, Sen. Blumenthal asked, then why not limit any revisions to e-discovery? Miller’s answer suggested that the remedy for rising costs is not rules changes at all, but technology:

On electronic discovery, it is so frightening to everyone, but I think that fear is clouding our thinking about it. There is every reason to believe – and some district judges have already drunk the Kool-Aid – that there are technological solutions to electronic discovery – not real solutions, but ways to use artificial intelligence, highly sophisticated programming and analytics, really to bring the costs of electronic discovery way down from what our first generation experience is.

Also testifying in opposition to the proposed changes was the NAACP’s Sherrilyn Ifill, who argued that they would undermine the ability of many Americans, and especially plaintiffs in civil rights cases, to obtain relief through the federal courts. In her prepared statement, she was particularly critical of the proposed proportionality rule:

[I]f a litigant determines, in its own estimation, that a discovery request is not “proportional” to the needs of the case, it can refuse to provide the requested discovery. The Advisory Committee’s proposal represents a sea-change in the manner in which discovery is conducted in litigation. The amendment would wholly impede the ability of plaintiffs in civil rights actions to 0btain necessary and vital discovery.

As did Miller, Ifill criticized the lack of empirical evidence supporting the proposed changes. “We are not aware of any empirical evidence suggesting that civil rights cases are categorically prone to having exorbitant discovery costs,” she said. “Certainly, that has not been our experience in litigating civil rights cases for decades.”

Mayer Brown’s Andrew Pincus was the sole defender of the proposed changes, arguing that they are necessary to control the exponential growth in discovery-related litigation costs.

With respect to proportionality, Pincus’s formal statement called the proposed changes “a modest alteration in the rules designed to focus additional attention on a legal standard that already exists.” He was critical of those who question the need for the change:

Does anyone seriously believe that significant discovery burdens should be imposed on a party even when that discovery is disproportional to the needs of the case, considering not just the amount at issue but also the importance of the issues, the importance of the discovery to resolving those issues, and whether the burden outweighs the benefit? The only basis for such a conclusion would be the view that every plaintiff in every case is entitled to the full range of permissible discovery – even if the demand cannot be justified on any rational basis.

In the remainder of his testimony, Pincus walked through a point-by-point analysis of each of the proposed changes, speaking in favor of each of them.

If you are interested in seeing the entire tw0-hour hearing, including the questions and answers that followed the formal testimony, you can watch a webcast here.

Pictures from the Opening Reception for Catalyst’s New Korea Office

Catalyst celebrated the opening of its new Korea office with a reception Oct. 24 at the Seoul Palace Hotel. The reception was attended by some two dozen industry professionals, including attorneys and Catalyst vendor partners. Catalyst staff members pictured below are John Tredennick, founder and CEO; David M. Sannar, vice president of international development for the Asia region; Youngsoo Park, director of the Korea office; and Sohyeon Kim, a staff member in the Korea office.

(Click any image for a larger view.)

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.

FINRA Proposes E-Discovery Changes to its Discovery Guide for Customer Cases

The Financial Industry Regulatory Authority — better known as FINRA — has proposed changes to its Discovery Guide for customer cases that are designed to provide parties and arbitrators with greater guidance for handling e-discovery in securities arbitrations. The changes must be approved by the U.S. Securities and Exchange Commission.

finra logoThe proposed amendments would encourage parties to discuss the form in which they intend to produce documents and, whenever possible, to agree to the form of production. The changes would require parties to produce electronic files in a “reasonably usable format,” which is defined to mean “the format in which a party ordinarily maintains a document, or to a converted format that does not make it more difficult or burdensome for the requesting party to use during a proceeding.”

The proposed amendments would also state that arbitrators, when resolving contested motions about the form of production, should consider the totality of the circumstances. The amendments include three factors arbitrators should consider:

  1. For documents in a party’s possession or custody, whether the chosen form of production is different from the form in which a document is ordinarily maintained.
  2. For documents that must be obtained from a third party (because they are not in a party’s possession or custody), whether the chosen form of production is different from the form in which the third party provided it.
  3. For documents converted from their original format, a party’s reasons for choosing a particular form of production; how the documents may be affected by the conversion to a new format; and whether the requesting party’s ability to use the documents is diminished by a change in the documents’ appearance, searchability, metadata, or maneuverability.

If these amendments are approved, FINRA says, it will also provide arbitrators with additional guidance on the terms “appearance,” “searchability,” “metadata” and “maneuverability,” as used in the third factor above.

In comments to the proposed amendments, FINRA says that it recognizes that parties have legitimate reasons for converting documents into different formats, and for requesting particular document formats.

For example, a firm may need to convert a document into a particular format to comply with legal requirements to redact personal confidential information, such as customer Social Security numbers. A customer may need a document to contain metadata in order to establish when a broker learned specific information. FINRA believes that requiring production in a reasonably usable format and providing general guidance on e-discovery would provide arbitrators with the flexibility to tailor document production to the needs of each case.

As part of these proposed amendments, FINRA is also seeking to amend the Discovery Guide’s discussion of costs and the burden of production. The proposed revision would advise arbitrators that they may order a different form of production if it would lessen the impact of producing electronic documents.

For more information about the proposed changes, see:

[Disclosure: I am a member of FINRA's roster of public arbitrators.]

John Tredennick’s Bryan University E-Discovery Class Commencement Address

[On June 19, Catalyst founder and CEO John Tredennick delivered the commencement address to the E-Discovery Project Management graduating class of Bryan University. William F. Hamilton, dean of Bryan's Department of E-Discovery and partner with Quarles & Brady, introduced the address. Following is the text of John's address.]

Thank you Bill [Hamilton] for your kind words. It was an honor to be a part of your curriculum over the past year and it was a lot of fun. You have a great program going here and I am proud to have been included.

Bryan University’s E-Discovery Project Management Program represents a 21st Century approach to managing electronic discovery. As graduates of the program, you are starting your careers at the beginning of a new era in litigation management. To be sure, e-discovery didn’t start yesterday or even the day before that. Rather, email has been around for more than two decades in one form or another. The e-discovery amendments to the Federal Rules were made way back in 2006. That seems like ages ago.

But, the law treads carefully over new ground and we are at the beginnings of its foray into the digital age. The first cases looking hard at the processes underlying e-discovery are just being released and most are at a magistrate or trial court level. The appellate courts have not had much chance to weigh in on how this process should be run or what duties we lawyers have to meet. People are speculating right and left about how this new world is going to be shaped just as we are creating new businesses and roles to help plow the new earth and build these new communities.

My point is that you are in a wonderful position to see this new world take form and to help define, build and ultimately serve it through your efforts. And programs like the one offered by Bryan University are critically important because they bring together the best thinking of the older, more experienced minds and use that knowledge to train the younger minds that will be so important as we settle this new land.

Most law schools won’t see the need for this type of education for many years to come – a blind spot that has left our educational landscape with a vacuum crying out to be filled. Law firms try to fill the gap but they are not designed for this purpose, and their efforts in many cases leave much to be desired. Various well-meaning groups have sprung up to offer e-discovery education but many are ad hoc or outgrowths of volunteer organizations that can’t devote the time necessary for a first-class program.

That is why I was excited to see an institution like Bryan University step in with a desire to offer a first-class education using first-rate teachers, all of whom have extensive experience in the field.

The Early Days

When I started practicing law there was no “E” in front of the word discovery. Rather, we worked with copies of paper. We used yellow stickies to “tag” our documents and a copier to prepare them for deposition or trial. There were no litigation support specialists and one of the paralegals’ least favorite jobs was to hand stamp Bates numbers on documents before sending them to the copier. Privilege review consisted mostly of telling your client not to send you anything from the lawyer’s office.

Indeed, my top qualification for speaking to you today is that I am old enough to remember what the practice of law was like before computer technology. There are only a few of us around anymore who can say that.

It was a different time to be sure but I am not sure it was a worse time. As a trial lawyer, most of my cases could fit in a Redweld folder that I could carry home over the weekend to review. How many of you even know what a Redweld folder is?

I had a chance to speak to several groups in Tokyo a couple of weeks ago. To their surprise, I blamed them for this litigation-support revolution. When I started, copy machines were slow and expensive. As a result, our cases had few documents to review. In the ’80s and ’90s, those wily Japanese started flooding our country with better and better copy machines. Suddenly my Redweld folders became filing cabinets of paper. Then war rooms. And, finally, to everybody’s detriment, someone invented that thing called a document warehouse, which for some reason was always in New Jersey. Even worse, you always had to review documents in the heat of the summer.

This was back in the mid ’90s. It was about that time that the digital age was taking hold. People started using email and they started sending documents via that relative newcomer, the Internet.

The Internet was a big deal for at least two reasons that pertain to our discussion. For one, I could send an email and a document to the other side of the world without needing a stamp. Suddenly it was free and I could do that as much as I wanted. It didn’t hit me all at once but day by day I was sending out more emails and fewer letters.

More important, I could send that email to a lot of people, all at the same time. It turned out that the most-used key on our computer keyboards was that notorious “Reply All”—which wasn’t really a key at all but certainly the butt of a lot of jokes for a time.

With distribution lists and reply all, we could suddenly broadcast massive amounts of data across the globe at any time and as much as we liked—indeed, more than I liked and more than any of us needed.

Think about the contrast today to that paper world and the natural limits paper imposed on us. In the ’80s, we revolutionized my former law firm Holland & Hart by the introduction of the “Daily Memo.” The Daily Memo was a paper document prepared by one of the secretaries for distribution to the firm. Staff could send their announcements to this secretary for inclusion in the memo rather than sending them out separately. For us recipients, we could look forward to an afternoon distraction reading this document that summarized whatever important was going on at the firm. And, rather than copying and distributing 50 separate notices throughout our firm’s 10 offices, we could do it with one document that could be printed front and back. I still fondly remember the mail cart that came around to deliver the daily memo.

One day, our managing partner announced that this new technical innovation called the Daily Memo saved us $150,000 dollars a year in copying and distribution costs. That seemed like a big victory for the firm budget.

But here’s the deal. In that paper world, there were natural limits to the volume of content we could create and distribute, even when we had computers rather than typewriters. Sure, I could bang out great prose using WordPerfect, but in the end I had to print it and then get it delivered. That cost money and took time. The printer only goes so fast. You only have so much paper. Postage and FedEx bills add up. And, you had to pay to store all that paper. All these things governed how big things could get in the paper age.

The Digital Age

The digital age changed all that. It wasn’t about faster copy machines or cheaper stamps or anything like that. Rather it was a tectonic shift, a change in the fabric of the planet. Overnight, all the old paper limits evaporated. They were just gone.

Suddenly I could send hundreds or thousands of pages to hundreds or thousands of people with a click of a mouse. With that infernal “Reply All” key, I could bore and bother limitless numbers of people with my simple “Yes,” “I Agree” or “You tell ‘em” messages. With mailing lists, I could send out our newsletter to tens of thousands of people. And the cost to do this? How about zero dollars. No stamp, no paper, no UPS truck, no nothing.

We see this in the unimaginable explosion of digital content the world creates every day. Back in about 2002, the University of California at Berkley started trying to figure out how much content the world was creating. They came up with the number 1.6 exabytes, which is a lot of data. For those who don’t know what an exabyte is, think of it as 1,000 petabytes, which is 1 million terabytes or 1 billion gigabytes. That is a huge volume of data to contemplate. But that was back in 2002—we were just getting started in the data creation realm.

The most recent study I have seen from 2011 puts the figure at 1.8 zettabytes a year, which is another thousand times greater than an exabyte. If the scientists who study these figures are even close to right, that means the world is creating something like 60 million Libraries of Congress each year. That is not a cumulative number, mind you, but a yearly figure. That comes to 1.8 quadrillion megabytes of data every 12 months.

Now, to be sure, not all of that data is discoverable, but a lot of it could be. And that’s where we come in to the picture. We spun Catalyst out of my law firm, Holland & Hart, in 2000, when I stopped practicing law and became an e-discovery technology vendor. At the time, I was extremely proud of the NetAppliance Filer device we had purchased to store discovery documents used in the repository. It had about 500 useable gigabytes of storage and I thought it would be more than enough to meet our needs for years to come. Indeed, in those days a big case had 30,000 documents. I dreamed of the day when we hosted a million documents on our site.

Today, and reflecting the digital revolution, a big case might have 3 million documents, or 30 million or even more. We buy storage devices in units of 125 petabytes and have a number of them in our four data centers. As for the million documents, we see that many being loaded automatically in a typical evening. The numbers have simply jumped off the charts in ways hard to imagine for those of us who practiced in the dark ages, meaning the ’80s and ’90s.

The Digital Age has gathered full steam now and there is no going back. We won’t be abandoning our email habits any time soon unless we move to Twitter or some other faster way to spread our digital content. To the contrary, expect to see even more content as business turns to instant messaging, texting, Facebook and even video communication that is automatically transcribed and stored for us. All the while, storage gets cheaper and cheaper.

Indeed, it is almost impossible today to delete anything we have created. Google is our email provider. While they give us a trash bin and a delete key, I understand that they don’t really delete anything. It is there to be retrieved, subpoenaed and put on display in that next digital trial or international arbitration. All of it has to be found, collected, searched, analyzed and reviewed for production by members of our legal profession. Talk about a growth industry if ever there was one.

For a time, the legal profession ignored this digital revolution, pretending almost as if it didn’t exist. In the early 2000s, lawyers had an unstated but mutual understanding that drove discovery:

If I don’t ask you for email or other digital content, you won’t ask me.

As a result, most discovery focused on traditional paper files: letters, reports, memos and the like. Nobody knew what to do with electronic data and they sure didn’t want anyone else to know they didn’t know.

Then came the Microsoft/Netscape mega battle that was front-page news. Everyone who followed that case knew that Bill Gate’s downfall was that famous email that said we need to “kill Netscape.” We watched as David Boies, subbing for the government, gleefully rammed Gate’s contradictory emails down his virtual throat.

That was all it took for the plaintiffs’ bar to wake up and start demanding digital content. Some of those plaintiffs helped companies sue other companies and the scope widened even further. Suddenly everyone was asking for email and getting asked back in return. The digital legal age was on.

It was against this backdrop that the Federal Rules Committee dropped a bombshell on the profession by changing the rules. Suddenly in December of 2006, electronically stored information became all the rage. Suddenly it was discoverable and suddenly the legal profession had to deal with it. Suddenly the rules of the game had changed and there was no turning back.

To be sure, email didn’t suddenly become discoverable. It was clear to me and just about every judge in the country that electronic files had always been discoverable, even if that wasn’t spelled out in the rules. The amendments merely confirmed the law in that respect—they didn’t change it. They declared a new moniker for our electronic data, ESI, but they didn’t suddenly declare that ESI was discoverable for the first time. It was always discoverable.

What the drafters really did was bring electronic discovery front and center in the process. Suddenly you had to meet and confer about ESI and then report to the court on what you planned to do about it. Suddenly ESI became the centerpiece of every lawsuit, whether the lawyers wanted to think about it or not.

That was when this e-discovery thing really took off, although like most things in the law it took several years to get going. When we combined the digital explosion of content—which we now call “Big Data”—with the mandate that lawyers need to review and produce it, we had the makings of a sea change which some have called the Digital Practice of Law.

The Digital Legal Age

Litigation holds, sanctions, waivers of privilege, malpractice claims, all of that naturally followed as courts and lawyers struggled to understand and live in this new digital world. At first, we sought to graft our old ways onto this new landscape. I remember as a trial lawyer that my rule was to have read every document in my case—not once but at least three times.

That worked at a time when I had only a few hundred documents to master. It doesn’t work so well when you have a few million.

We started with lawyers reviewing documents but that broke the bank for our clients. Then it moved to legal assistant review, then to outsourced review teams here, in India and back here again. We reviewed for privilege, responsiveness, issue and the like until our eyes started failing us. Fifty docs a minute, sixty docs a minute. “Hey I got over a hundred.” Whatever the number, it just didn’t matter. The world was creating a hundred X, no a thousand X for whatever we could review.

We gave up the review notion by the end of the decade, turning to key word search, culling, early data assessment and the like. It still wasn’t enough to keep our heads above water. More recently, we have turned to technology assisted review with the hope that maybe we can get computers to do our work for us. The technology does work and holds new promise for review efficiency, but it isn’t the end of the story. There are still a lot of documents to master and a lot of work to be done. And this is only the beginning.

A New Era for Legal Professionals

As a graduating class, you are entering the profession at a good time. We are at the beginning of a new era in the digital practice of law—one that requires new kinds of legal professionals with new kinds of skills. Clients are demanding new and better ways to control costs and they aren’t satisfied with the old ways of doing things. Well-meaning lawyers are struggling to get on top of this phenomenon and they are looking for help from all sides. New positions are being created by the day along with new kinds of vendors and other organizations. Standards bodies are creating standards as fast as they can and then creating new ones to replace the old.

In that regard, the Federal Rules Committee is busy amending the rules that turned the e-discovery genie loose. Their goal is to convince lawyers to be sensible with this new power they have and to “play nice.” The hope is that we will start to think about proportionality and matching our burdensome discovery requests with the needs of the case. Their hope in a nutshell is that the adversaries we worked so hard to develop over the past few hundred years will stop acting adversely. Fat chance, I say. Boys will be boys and lawyers will be lawyers.

And judges will be judges. If you follow at least some of the rulings, our judiciary is piling on e-discovery costs by the sanctions they are issuing.

The good news is that e-discovery seems to be a growth industry with a need for professionals of all types, and not just those who passed the bar. Big data needs big-league techniques to manage it. Big projects need big-league project managers and other professionals to manage them. The digital age needs new methods and techniques to if we hope to keep the litigation process within reach of the litigants. We can’t litigate $500,000 cases on million-dollar discovery budgets. I am reminded of an old legal maxim:

Justice delayed is justice denied.

The new mantra needs to be:

Justice overpaid is justice denied.

Welcome to the Profession

With all that said, I welcome you to the legal profession. You have come from many different backgrounds—some legal, some technical and some from wholly different worlds—with the goal of making your living by assisting the judicial process. That was my goal as well and I bet that of Bill Hamilton. Law is a noble profession and all who aid the process share in the nobility.

Your timing is excellent in my view. The profession has started a process of change that is now in full swing. If you are looking for stability and a predictable path to retirement, you may be disappointed. Whatever the future may be, it will probably be different than anything we expect on this day. But I can promise you that it will be exciting if nothing else, filled with twist and turns and unexpected ups and downs.

The digital explosion is not going to die down anytime soon and no one will be taking the “E” off discovery. To the contrary, other countries are starting to embrace e-disclosure or e-whatever-they-want-to-call-it and are demanding that digital evidence be produced. Lawyers around the world will need help managing the e-discovery process and dealing with all of that digital content. That is where you and thousands of others come in.

So, take a minute and rejoice at what you have accomplished—all that you have learned, all that you have left to learn. Then pick yourself up and get going. There is a big world out there filled with opportunities. Know that your skills are needed and that there is a place for your desires to manifest. You might be working with a law firm, a corporation or one of those dreaded “vendors” like me, but there is a need for your services and work to be done.

What more can anyone ask for as he or she starts a professional career? My best wishes to all of you on this graduation day. I hope I will be seeing you as we move forward to master the e-discovery process in this digital age.

Thank you for letting me be a part of your day.

Article: ‘Taming Big Data E-Discovery Using the Cloud’

The business world is accumulating data at a staggering rate. Every day, estimates say, we create 2.5 exabytes of data. That number will double by 2014. Just one business, Walmart, is said to collect more than 2.5 petabytes of customer data every hour.

In this era of big data, legacy locally installed appliances stop making sense as e-discovery platforms for corporations and their counsel. Just as businesses are increasingly turning to cloud systems for other enterprise functions, they are turning to the cloud for e-discovery. Without doubt, cost savings is the single greatest factor driving corporations and their law firms towards the cloud for e-discovery. But there are several other ways in which the cloud is better suited to e-discovery than an appliance.

In an article published in Computer Technology Review, Taming Big Data E-Discovery Using the Cloud, Catalyst CEO John Tredennick explains why cloud platforms are better suited than local appliances to handling the demands of big data e-discovery.

Listen to Interview with Catalyst CTO Larry Barela on E-Discovery in the Cloud

Larry Barela

This week, lawyer and writer Ari Kaplan interviewed Larry Barela, chief technology officer at Catalyst, about e-discovery in the cloud. They discussed Insight, Catalyst’s cloud-based e-discovery platform, and how it differs from other available platforms.

Larry talks about the advantages of a single dynamic XML back-end and the benefits of cloud-based software. He also address concerns about the security of cloud-based computing and offers his predictions for the continued operation of e-discovery functions in the cloud.

You can listen to the interview here: A Catalyst for Reinventing the Cloud.

Should There Be An International Standard for E-Discovery?

By early July, a committee of the International Organization for Standardization (ISO) is slated to release a working draft of an international standard governing the discovery of electronically stored information. This is just an early step in a long process that could take years to conclude. The outcome, however, could be publication of a final standard that would provide technical and procedural guidance for e-discovery worldwide.

The ISO's Central Secretariat Headquarters in Geneva.

The potential significance of this was explained to Law Technology News earlier this year by Eric Hibbard, CTO for security and privacy at Hitachi Data Systems and co-editor of the project. If e-discovery products and services are certified as ISO-compliant, then a party and its counsel could more easily decide what to purchase, and judges could be more certain that e-discovery follows uniform methods, Hibbard said.

From what I can find, little is available on the ISO website about the project, which is ISO/IEC NP 27050. (Many of the documents on the ISO site require a password for access.) The project is being undertaken by Subcommittee 27 (SC 27) of Joint Technical Committee 1, which is a joint effort of the ISO and the International Electrotechnical Commission. SC 27 focuses on security techniques.

The best overview I’ve seen so far is a piece written for Law Technology News by Steven Teppler, chair of the information governance and e-discovery practice for the Sarasota, Fla., law firm Kirk Pinkerton. As Teppler explains, SC 27 gave final approval to development of the standard when it met in France in late April, after an earlier delay in the approval process. By early July, a working draft is due. Comments will be gathered over the summer and considered by SC 27 at its meeting next October in the Republic of Korea.

As currently envisioned, Teppler writes, the standard will focus on providing guidance with respect to terminology and a range of technological and process challenges associated with e-discovery and ESI. However, the project could evolve into a multi-part standard that could include actual requirements in addition to guidance, he says.

The project scope involves the development of an international standard that addresses activities in e-discovery, including, but not limited to identification, preservation, collection, processing, review, analysis, and production of ESI. Another project aim is to help clarify issues that are not directly addressed in the Federal Rules of Civil Procedure, such as identifying, collecting, and processing ESI. In addition, this standard will provide guidance on measures, spanning from the initial creation of ESI through to its final disposition, which an organization can undertake to mitigate risk and expense often associated with e-discovery issues.

One article that I came across argues that the ISO has already promulgated a standard for e-discovery, ISO 9001, the international standard for certifying that a company follows high quality management principles. Be that as it may, there is no question that a uniform set of precise and specific standards could be beneficial both for consumers and providers of e-discovery services and technology. The only real question, perhaps, is whether agreement on such standards could ever be reached.

Why the Cloud is Better for E-Discovery: eWeek Interviews Catalyst CEO

As big data makes it more complicated for enterprises to respond to discovery and regulatory requests in U.S. legal matters, many are finding that there are multiple advantages in moving their e-discovery efforts to the cloud. Recently, based on its interview with Catalyst founder and CEO John Tredennick, the digital magazine eWeek published a slideshow, E-Discovery Management More Effective in the Cloud: 10 Reasons Why. Click the image below to go to the full slideshow.

University of Florida and Catalyst Team Up to Offer Law Students an Innovative, Hands-On Data Analysis and Review Course

[The following is a guest post written by William "Bill" Hamilton, partner at Quarles & Brady and executive director of the UF Law E-Discovery Project. He was the principal instructor for the course he describes.]

This spring, the University of Florida Levin College of Law and Catalyst teamed up to break new law school ground by offering an ambitious, experimental e-discovery course, “Electronic Discovery Data Analysis and Review.” The course followed the “basic” e-discovery course that the University of Florida law school has offered since 2007, and which uses Catalyst’s products for demonstration purposes. This time, however, the students would get their hands on the data.

Bill Hamilton

The course quickly attracted more than 30 UF law students. The course also caught the attention of the University of Florida Department of Computer & Information Science and Engineering. Two of its students audited the course. (The department has collaborated with UF Law to build a random sampling tool that will shortly be available for a fee download.)

To power the course, Catalyst built and provided the students with an e-discovery “sandbox” consisting of over 800,000 Enron documents where students were able to perform class assignments and experiment with the cloud-based search technology of Catalyst Insight. It is truly impressive to be able to search hundreds of thousands of documents in less than a second. For the students, huge data volume suddenly became a real problem and a real opportunity.

The course featured virtual presentations by Jim Edelman, senior search and analytics consultant at Catalyst, on keyword search problems that featured “war stories” and lessons learned; training on Catalyst Insight by the Catalyst training team; in-class presentations by Catalyst search consultant Ron Tienzo on predictive coding and review design; and a dynamic presentation by Catalyst’s CEO John Tredennick on predictive coding processes given at the recent UF/EDRM conference on electronic discovery for the small and medium case.

Practical Learning for Law Students

The Data Analysis and Review course progressed by tracking Catalyst’s product development trajectory. Simple free-form search exercises soon became enhanced with faceted searches that then became Catalyst defensible tracked searches and that were ultimately complemented with machine learning processes. At each step in Catalyst’s evolution, the class tracked the case law and articles that have pushed forward the search revolution of the past two years.

We even broke up into teams and tested ourselves in mock Rule 26(f) conferences based on real search problems. We also discussed the trials and tribulations of designing a review (passes, quality control, reviewers, batching, coding, privilege, etc.) and then had to design a review using Catalyst’s graphic tool. Doing it yourself requires thought, perseverance, imagination and a certain mental toughness. Application is the real learning moment.

This UF Law course featured a unique combination of participation by Catalyst professionals who dedicated their time and energy and a non-traditional practical problem-focused law school course designed to prepare students for real-world experiences. We read case law but also watched a UF Law Information Services team break down a PC and explain data storage, memory, and processing. We studied case law and secondary sources, but we also learned that developing actual search queries in a real-time environment is not easy. It takes practice, practice and practice. We studied the Catalyst user manual, but learned that even a program with an intuitively designed user interface has power features that are manageable only with experience.

E-discovery education can only meet its challenge when legal service providers offer hands-on data analysis and management experience. E-discovery education must not only talk the talk, but, as Craig Ball has emphasized for years, must walk the data walk if it is to produce competent e-discovery professionals. Hats off to Catalyst for helping to make this happen.