Notable Articles in E-Discovery 4/17/13

Emails Form Valid, Staute Of Frauds-Friendly, Real-Estate Option Contract (it - Lex)

"Email correspondences are no longer just means of communicating with friends; they have become tools for binding legal contracts. We’ve talked in the past about how the elementary concepts of offer and acceptance can be unclear when it comes to email, and a recent Texas case explored the topic further."

Is predictive coding the answer to reducing the costs of eDisclosure? (The Lawyer)

"Dr James Kent, Global Head of Investigations and CEO EMEA, Nuix, believes predictive coding must be combined with other technologies and investigative workflows to address the runaway costs of legal review.

In the age of big data, organisations facing litigation, regulatory disputes and audits are spending too much time and money on data discovery processes. Quite simply, organisations must deal with more information created and stored in more places. Paper documents make the occasional appearance, but the critical evidence is most often found in electronic documents, email, instant messages, text messages or even blogs or social media."

Note to Counsel: Exhaust “Alternative Measures” to Restrict E-Discovery Parameters (Mike Hamilton, E-Discovery Beat)

"E-Discovery forms the basis for how parties develop and prepare for a case. If the scope or parameters of e-discovery narrows or expands, the playing field changes. Legal arguments transform, and the strength of a party’s claim or defense can shrink or grow. Lawyers are comparable to chefs in this aspect. For a chef, having access to less or more ingredients, greatly affects what can be made. The same can be said for lawyers, the amount of information to draw from in e-discovery affects what strategies and arguments can be constructed."

Project Management: The Human Hand That Guides E-Discovery (Andy Mower, Law Technology News)

"No matter what software is selected, a system or application cannot function without human guidance. Technology only yields accurate results when managed by a project manager who has previous ESI project-management experience, solid cross-organizational knowledge and communication skills, high technical acumen, understanding of all products and services, creativity and even context to the general legal strategies being deployed. These attributes allow an experienced litigation support practitioner to utilize the features and functions of the technology to tackle workflow challenges and support custom client requests.

Seasoned project managers understand the strengths, limitations and the very backbone of their systems and applications that allows them to succeed with their responsibilities and, in turn, deliver tremendous client satisfaction. While their roles require them to delegate tasks to technical staff, experienced project managers always oversee the technical process with much attention to detail by applying their practical experience to establish quality control measures to troubleshoot for any inconsistencies or potential errors resulting in the processed data."

Notable Articles in E-Discovery 4/10/13

Six Big E-Discovery Blunders (William Hamilton, Law Technology News)

"...the small and medium case is really where the e-discovery rubber meets the road. Ninety-seven percent of cases are in state courts, they said — and these are the cases that require the best e-discovery skills, because the cases have limited resources, modest amounts at issue, and yet generate tons of electronically stored information. Even if you collect just two gigabytes of data per custodian, that's two pickup trucks of printed paper for each custodian — 60 boxes that would take an attorney two months to manually review. And modest cases involving five to 10 custodians generate the equivalent of many hundreds of bankers boxes of paper, the panelists asserted."

Can You Be A Competent Attorney Without Keeping Pace With Relevant Technology? (Christine Soares, Defending Atticus)

"Late last year, the ABA formally amended the Model Rules to require that lawyers keep pace with “relevant technology” in order to represent clients competently.  The new comment to Model Rule 1.1 states:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice,including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Although the Model Rules are not designed to be a basis for civil liability, plaintiffs can easily draw from them to create a case against lawyers.  This amendment makes clear that failing to stay abreast of technology can place you and your firm at risk."

Don't Forget About E-Discovery When Moving To The Cloud (Jay Yurkiw, Technology Law Source)

"As businesses move more applications and data to cloud services (e.g., Google Apps for Business, Salesforce.com, Amazon S3, etc.), they inevitably are going to find themselves in litigation with the need to retrieve electronically stored information (ESI) from the cloud to comply with their e-discovery obligations. While the risks of e-discovery likely will not keep any businesses away frompublic cloud services altogether, businesses at least should plan for how they are going to meet the demands of e-discovery in the cloud when litigation arises."

Is it Time to Ditch the Per Hour Model for Document Review? – eDiscovery Trends (Doug Austin, eDiscovery Daily)

"Why don’t more firms offer a per document rate for document review?  Or, perhaps a better question would be why don’t more organizations insist on a per document rate?  That seems like a better way to make document review costs more predictable and more consistent.  I’m not sure why, other than “that’s the way we’ve always done it”, that it hasn’t become more predominant.  Knowing the per document rate and the number of documents to be reviewed up front would seem to eliminate overbilling disputes for document review, at least."