practicehacker

This month’s installment from Cybercontrols is about the E-Discovery Pilot Program run by the 7th Circuit Court of Appeals.  The Pilot runs from Oct. 1 ‘09 to May 1 ‘10 and is intended to motivate informational exchanges between counsel relating to electronically stored information (ESI) through a proposed standing order that select district judges, magistrates, and bankruptcy judges in the Seventh Circuit have already agreed to use. The principals set out in the proposed order go beyond the 2006 ESI amendements to the Federal Rules of Civil Procedure to include subjects such as

Zealous Representation. Principle 1.02 specifically addresses the zealous representation excuse for obstructionist behavior – the principles state that “An attorney’s zealous representation of a client is NOT compromised by conducting discovery in a cooperative manner.” (Emphasis added)

Proportionality. Principle 1.03 calls attention to Fed. R. Civ. P. 26(b)(2)(C), which permits objections to discovery requests where the burden or expense outweighs its likely benefit considering such things as the resources of the parties and the amount in controversy.

Meet and Confers. Principle 2.01 specifically references Fed. R. Evid. 502. If the pilot project can find a way to minimize the amount of attorney time spent in pre-production privilege reviews it would have made a huge contribution to achieving the overall goal of securing the “just, speedy, and inexpensive determination of every action.”

E-Discovery Liaison. Principle 2.02 contemplates the appointment of an e-discovery liaison for the purpose of meeting, conferring or attending court hearings on e-discovery issues. The liaison may be an attorney but can also be a third party consultant or an employee of the party. The liaison needs to know or have access to the people who are familiar with a party’s electronic systems and capabilities, as well as the technical aspects of e-discovery

Preservation. Principle 2.03 explicitly disfavors broad requests for preservation and encourages the exchange of specific information to help determine appropriately specific preservation agreements.

Scope of Preservation. Principle 2.04 covers the scope of preservation. 2.04(b) requires a party seeking information regarding the other party’s preservation and collection efforts to confer with the other party before initiating such discovery. 2.04(d) enumerates types of information that would NOT ordinarily be preserved, e.g. deleted, slack, fragmented or unallocated data.

Identification of ESI. Principle 2.05 encourages parties to discuss such things as treatment for duplicative ESI, filtering based on file type, date ranges, etc, and use of keyword searching, topic or concept clustering or other advanced culling technologies.

Production Format. Principle 2.06 states that ESI and other tangible or hard copy documents that are not text-searchable need not be made text searchable, meaning, evidently, that scanned paper documents would not need to be OCR’d.

Education. Principle 3.01 states a judicial expectation that counsel will be familiar with the Federal Rules of Civil Procedure governing electronic discovery. Considering that the ESI rules have been in effect for three years as of December 1, 2009, and they were much publicized prior to their adoption, that hardly seems unreasonable or overreaching.

Seventh Circuit E-Discovery Pilot Program: 7th Circuit E-Discovery Program

CyberControls E-Discovery Request Considerations: E-Discovery Request Considerations

CyberControls specializes in electronic discovery and production, computer forensics, and integration of computer technology in civil litigation. Visit www.cybercontrols.net.

Prism Legal’s Ron Friendman liveblogged (a/k/a real-time blogged) Richard Susskind’s discussion of the future of the profession at ILTA 2009.  Here are the Top 10 disruptive legal technologies on the list:

Document Assembly. Has already changed markets. Providing document assembly online allows for economies of scale. Charges and hours don’t have to relate, making this technology “disruptive.

Always on Connectivity. Lawyers can, and are expected to, be on call 24/7.  Deal with it.

Electronic Legal Marketplace. Your value in the  a frictionless marketplace. Clients can select legal services in the electronic marketplace and even choose to go with non-lawyer alternatives.

E-Learning. Law schools have long been falling down on the job. The Internet can revive learning with realistic simulations.

Online Legal Guidance. Interactive advice systems in the “latent legal market” (see Suskind, The Future of Lawyers). Sounds like self-guided document automation.

Legal Open-Sourcing. A la Wikipedia. Crowd-sourcing communities of interested individuals can result in better answers than throwing the problem to a single individual.  Consumers more likely to talk to friend with similar problems than a lawyer.

Closed Legal Communities. See Legal Onramp. Clients and In House Counsel can pool legal information and check a common knowledge-base before consulting pricey outside counsel.

Workflow and Project Management. High volume, low value work can be made into off-the-rack solutions; making certain lawyers into de facto project managers. Project management requires significant training, but lawyers aren’t getting any. This is a disruptive trend because it highlights the fact that as efficiency increases, billable hours decrease.

Embedded Legal Knowledge. In the future legal knowledge will be built into compliance systems making the contributions of highly-trained counsel less necessary except for unusual assignments.

Online Dispute Resolution. Dispute resolution as a service. Services like CyberSettle versus time spent in Court or in the arbitration system.

My slides for panel on Social Networks, Blawgs & Podcasts #abachicago tomorrow at 3:00 PM

View more presentations from Mazyar Hedayat.

For more information see http://new.abanet.org/annual/pages/Schedule.aspx

Follow the 2009 Annual Meeting on Twitter at http://twitter.com/abachicago

Thought I’d share some choice video from TechShow 2009 featuring all 4 of the Best of Show winners that I wrote up in TechnoLawyer, plus interviews with some of my heroes such as Bob Ambrogi, Jay Funeberg, and Kevin O’Keefe, as well as sightings of legal blogging all-stars like Dennis Kennedy and Tom Mighelle. I’m still excited.

See related videos here and find me on YouTube as practicehacker.

We're the ABA Damnit! We own you!

This was my 10th year at ABA Technology Show in Chicago. This year was particularly cool.  Here’s why:

Meeting The Heavies: To me, seeing people like Dennis Kennedy, Tom Mighelle, Bob Ambrogi, Jim Calloway, Kevin O’Keefe, Brett Burney, Andy Atkins, Jay Foonberg (!) and the rest of my pretend blog friends … I mean pretend LinkedIn friends … is like reconnecting with long lost relatives. Exciting and a little intimidating. But all of them were really great and down to earth. Except that Kennedy. Such a prima donna. I kid, I kid.

Meeting Canadians: Who can forget meeting the Great Librarian of Upper Canada! Beat that. Then there was Phil of the Future (my name for him), Steve Matthews (nice guy), Brett Burney (I think he’s Canadian), Dominic Jaar (vive la Quebec libre!), the boys from Clio (or as I called them, the Booth Babes), and a host of other talent from the Great White North. It was great to meet you all: now go back where the ice doesn’t melt until July.

Technology Becoming Accepted: This year for the first time in memory I noticed a preponderance of grey hairs and the careful gait of partners scoping out potential buys for their offices.  This was not the brash, flash-in-the-pan TechShow of the late-90’s in which the Internet was decried as a fad.

SaaS, Saas, and more Saas: Software as a service was all over the place, and by next year it will be pervasive. This year I was knocked out by the number and variety of kick-ass SaaS providers at the show including Clio, RocketMatter, and VLO Tech. Clio was my hands-down favorite for a number of reasons – I intend to use it in my own practice. Whatever your cup of tea, the idea of throwing away the IT department in favor of the Cloud is gaining traction fast.

Less is … Less: One lamentable fact about this  year’s show – there was less of it than I’ve seen in a long time. Another casualty of the economy I’d say, but we shouldn’t overlook the fact that many legal technology vendors have been slaves to profit instead of boosters for innovation and the slow economy is making it painfully apparent what a royal screw job they’ve been giving lawyers all these years. Many players couldn’t make it ? Good riddance to bad company.

Other than that however, it was a great experience as always and one that I heartily recommend to one and all. If you haven’t been to TechShow, go there. If you have, come back. A splendid time is guaranteed for all.

For more coverage see my SmallLaw Column in TechnoLawyer.

Check out Twitter coverage of TechShow.

As always, I’d love your thoughts. E-mail me at mhedayat[at]mha-law.com or tweet me @practichacker.

ttyl

Can’t enough Twitter? You’re not alone. Herein I present a selection from the 140+ Twitter tools featured recently on Mashable. I’ve highlighted the ones that lawyers can use right away. If you don’t “get” how they can be useful let me know and I’ll post a follow up or explain via comments.

Posting

Brabblr – Post to all your micro blogging services at once Twitter, Pownce, Jaiku, Tumblr, Jabber, Frazr, etc.

Autopostr - This service lets your friends in Twitter know when you post a new picture on Flickr.

EmailTwitter – With this service, you can send tweets to Twitter from a cellphone without incurring SMS charges.

GroupTweet – Allows you to post private message to a group of Twitter friends.

Hashtags – You can add tags to your Twitter posts with this service.

HelloTxt – Update Twitter and a host of other micro blogging and social networking sites with one click.

LinkBunch – Need to share more than one link in a tweet? LinkBunch puts together all the links and provides you one link that you can share on Twitter. As you might have understood, this can be used not just with Twitter, but also with emails, IMs, SMS, etc.

LiveTwitting – Helps you cover a conference live on Twitter. Similar to liveblogging, only cooler.

MicroRevie – Post reviews on twitter accs and this service will turn them into microformats.

Mobypicture – A service to post to your blog and micro-blogging sites like Twitter through your mobile phone.

OutTwit – A tool for Outlook that will send the latest tweets from your friends as incoming email messages.

SecretTweet - Post to Twitter anonymously. If you really need to.

SnapTweet – Allows you to post your Flickr pictures to Twitter.

Snitter – Adobe AIR desktop client for Twitter compatible with Mac and Windows.

Twhirl – desktop client based on Adobe AIR. Impressive features including multiple Twitter accounts, connect to Friendfeed, post image to Twitpic, post to Pownce and Jaiku simultaneously, and search using Tweetscan.

TweetCube – This service allows you to post files on Twitter. Files that can be shared include .zip, .rar, .pdf, .jpg, .png, .gif, .mp3 and .txt.

Tweetr- an AIR based Twitter client for MAC and PC. You can use this to send files upto 100MB.

Twibler – posts your ebay listings to Twitter automatically.

Twideeo – You can post videos to Twitter using this service that lets you upload the vid to their site and then generates a link to your video.

Twit+ – You can tweet pictures, videos, and files using this service publicly or privately among your friends on Twitter.

Twitxr – Another neat way to post a picture on Twitter, Facebook, or Picassa.

TweetChannel – You can add TweetChannel as your friend in Twitter to help you channel your various posts.

TweetLater – An useful service to schedule your Twitter posts for the future.

Twitpic – Share pictures on Twitter using Twitpic.

Twitsay – You can tweet an audio recording to Twitter using this new and popular service.

Twits Like Me – You can use this service to find people on Twitter who share your interests.

TwitterCal – This service allows you to post events from your Google calendar to your Twitter accounts.

Twitter Feed – This tool allows you to send your blog atom or RSS feed to Twitter.

TwitterGram – Post an mp3 on Twitter using this service.

Twitteroo – This is another popular desktop client for Twitter.

TwitterIM – Using this tool, you can tweet from Windows Live Messenger and ICQ.

Twitterlights – This tool allows you to highlight snippets of text from any webpage and send it to twitter. The url of the page also gets converted into a tinyurl and gets included in your tweet.

Twitter Reply – With this tool, you can send your Twitter updates on a secret email address, or through Windows Live Messenger or ICQ.

Twittershare – This desktop/web application also allows you to post pictures on Twitter. Works on Mac as well.

VisualTwitter – Allow you to post pictures on Twitter.

Reading

TopTweet – This site provides you updates from the top Twitter personalities. Yes, it took us a lot of tries to take a screenshot without Scoble in it.

TweetWire – TweetWire grabs the freshest links posted on Twitter and displays them Yahoo News page style.

Twitter100 – Just like in your personal start pages, this tool will allocate a box to each of the people you follow on a single page and display their latest tweets.

Twitterator – Twitterator enables you to follow a group of people at one go.

Twitter Digest – This tool allows you to subscribe to a message stream from a Twitter user of a group of users on the web or through an atom feed.

Alpha Twitter - This site provides you with the top links on Twitter.

Search

Summize - The leader of this space; lets you create an RSS feed consisting of posts responsive to your query.

Flaptor Twitter Search - Simple Twitter search engine. You can get an RSS feed out of your search query as well.

Terraminds - Another search tool for Twitter.

Tweet Scan – This is a search engine for Twitter indexing all the public messages on Twitter.

Twits Like Me – This tool helps you find people on Twitter who share your interests.

Twitterment – Search engine for Twitter powered by Google search.

TwitterWho – Using this, you can search for multiple queries on Twitter at one go.

Twubble – Find people who share your interests and highlight current friends you already follow.

Analytics

TwitBuzz – Follows links, messages, and users on Twitter and displays them nicely on its site Digg-style.

TweetBeep – Like Google Alerts – sends an alert whenever a keyword is mentioned or somebody links to you.

TwitGraph – Provides graphs of your Twitter usage – tweets by day, top 5 words, top 5 links, top replies.

Twitterlinkr – Shows the most popular links being posted on Twitter.

24oclocks - Tweets displayed by the hour of the day.

GeoTwitterous – Displays where the people you follow call home on a global map.

My Tweet Map – Latest tweets from your friends on a map.

Quotably – Check out a user’s conversations in a conversation thread. Extremely useful.

Sitevolume – Like Alexa: lets you see how many times a term has been used on Twitter, Digg, MySpace, YouTube, or Flickr. Add in multiple terms and see bar graphs comparing the terms.

Twetterboard – An analytics service that provides information about popular Twitter users and popular links.

Tweetburner – Tweetburner gives you click stats for the links you posted in Twitter.

Twittermeter – See how frequently a word has been used on Twitter. You can also compare two or more words.

Twemes – Twemes follows Twitter public messages with particular tags to build a meme around a topic.

TweetStats – Twitter statistics including timeline, tweets/mo. and tweets/hr.

TweetVolume – See how many times a particular word appears; compare up to 5 words via bar graph.

TwitterLocal – This tool allows you to generate an RSS Feed of a filtered list of tweets from a certain area.

Tweetmeme – Displays popular topics on Twitter and those people talking about that topic.

Twist – Trends of what people are saying on Twitter (like Google Trends for internet search words).

Twittermap – This tool displays the most recent public updates in the last 12 hours.

Twittermeter – Allows you to compare any keywords used on Twitter on through a graphical interface.

Twitt(url)y – Tracks the most linked to urls on Twitter and display them Digg-style.

iPhone + Others

Twitter for iPhone - Another Twitter client for your iPhone.

iTwtr - This is an open source Twitter client for iphones.

Pocket Tweets – A web based Twitter client for the iphone.

Twittai – A Java-based Twitter client compatible with more than 200 kinds of mobile phones.

ceTwit – Twitter client for Windows Mobile. Not as cool as the iPhone versions, but then again, what is?

Twapper - Send updates from your 30boxes calendar to your mobile phone using Twitter.

TwitterFone – You can update Twitter from your mobile phone using this service.

Qik – Stream videos from mobile phone to Twitter. Works really well.

Utilities

Crowd Status - View the status of friends on one page.

@answerme – Track the questions you ask.

CommuterFeed – Shared traffic reports using Twitter.

Hahlo – if you are not satisfied with your Twitter interface, you can check out Hahlo to manage your Twitter account. It gives you a separate profile page and the rest of the Twitter features in a new look.

LoudTwitter – This tool posts your Twitter posts on your blog. Hey, isn’t Twitter supposed to be some kind of a blog, too? Now I’m confused.

My Tweeple – Manage your friends and followers in Twitter on a single web page.

Politweets – You can check out your presidential candidate’s popularity on Twitter here.

StrawPoll – Sends out polls on Twitter that you can participate on. As they say, you can never have too many polls.

TrackThis – Get updates of your shipment using Twitter. It supports FedEx, UPS, USPS and DHL tracking codes.

Twitterfeed – Posts your blog posts automatically to Twitter.

Tweetclouds – Create a word cloud from a public Twitter stream using this service.

Tweet Clouds - Make a tag cloud from your Twitter posts.

Tweetpeek – You can create a group Twitter feed with Tweetpeek.

TweetWheel – You can find out which of your Twitter friends know each other with this service.

Twitku – Mashup of Twitter, Jaiku, and Pownce public timelines. You can also post from its interface.

Twitpoll – You can participate on polls using Twitter through Twitpoll.

Tweetshots – this service allows you to take your Twitter posts to Tumblr, embed in websites, or send over email.

TwitterAnswers – Combines Twitter and Mosio so that you can send questions over Twitter and have them answered by other people.

Twitter Census – You can create surveys on Twitter using this service.

TwitterNotes – You can create notes on TwitterNotes using Twitter and tagging your notes.

Xpenser – Record your expenses using Twitter. You can also use other mediums like email, SMS, IM, voice, etc.

CyberControls

Courts Unsympathetic to E-Discovery Ignorance

In a recently released analysis of this year’s judicial opinions on electronic discovery issues by Kroll Ontrack®, the dominant topics reoccurring in the 2008 judicial opinions were the importance of creating and enforcing sound document retention policies, the use of proper search terms for production, and the consequences when parties fail to properly comply with discovery requests. Of the approximately 138 reported electronic discovery opinions issued from Jan. 1, 2008 to Oct. 31, 2008, over half addressed court-ordered sanctions, data production, and preservation and spoliation issues. The breakdown of the major issues involved in these cases is as follows:

• 25% of cases addressed sanctions
• 20% of cases addressed various production considerations
• 13% of cases addressed preservation and spoliation issues
• 12% of cases addressed computer forensics protocols and experts
• 11% of cases addressed discoverability and admissibility issues
• 7% of cases addressed privilege considerations and waivers
• 7% of cases addressed various procedural issues
• 6% of cases addressed cost considerations

“It is clear that courts are no longer allowing parties to plead ignorance when it comes to ESI best practices,” said Michele Lange, director of Legal Technologies for Kroll Ontrack®. “These cases exemplify that judges can and will hand out sanctions for mishandling ESI and lack of document retention policies. Having a well-crafted document retention policy, ensuring cooperation between legal and IT departments, and partnering with an e-discovery expert can help prevent the same mishaps described in these cases, ultimately saving organizations hundreds of thousands in sanctions and reputation damages.”

The top five most significant cases from 2008 that summarized these issues included:

Court Imposes Sanctions for “Egregious” E-Discovery Misconduct

Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D.Cal. Aug. 12, 2008).

In this patent infringement litigation, the defendants’ failure to issue a written document retention policy well after its preservation duty arose led the court to label the discovery misconduct “among the most egregious this court has seen.” The court ordered the defendants to pay over $250,000 in fees and costs associated with prior and future motion practice and expert fees, deferring additional amounts until actual fees can be determined, while also imposing an adverse jury instruction against the defendants.

Court Orders Forensic Examination and Denies Cost Shifting, Citing Producing Party’s Discovery Misconduct

Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008).

In this ongoing contract dispute, the court followed up on its previous holding that it was appropriate to ascertain the cost of a forensic examination to determine if the cost was justified. The court found the defendant’s inadequate search efforts, failure to preserve electronically stored information and overall unwillingness to take “discovery obligations seriously” caused the need for a forensic examination. Since the problem was one of the defendant’s “own making,” the court refused to shift costs.

Court Orders Production of Text Messages

Flagg v. City of Detroit, 2008 WL 3895470 (E.D.Mich. Aug. 22, 2008).

In this ongoing wrongful death action, the defendants argued the court’s previous order that established a protocol for the production of text messages violated Stored Communications Act. The court was willing to modify the means of production and ordered the plaintiff to file a Fed.R.Civ.P. 34 production request, finding a third-party subpoena unnecessary. See also Flagg v. City of Detroit, 2008 WL 787061 (E.D.Mich. Mar. 20, 2008).

Magistrate Orders Parties to Cooperate in Production and Advised Expert Testimony May be Needed for Judicial Review of Search Methods

United States v. O’Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008).

In this criminal prosecution, the co-defendant filed a motion to compel claiming the government did not fulfill discovery obligations. Applying the Federal Rules of Civil Procedure to this criminal action, Magistrate Judge John M. Facciola ordered the parties to participate in a good faith attempt to reach an agreement on production. The court also suggested that judicial review of search methods may require expert testimony, since for lawyers and judges to make search term effectiveness judgments are to go “where angels fear to tread.” See also United States v. O’Keefe, 2008 WL 3850658 (D.D.C. Aug. 19, 2008).

Court Denies Motion to Retract Privileged Documents Finding Lack of Reasonable Precautions Taken

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008).

In this copyright infringement case, the plaintiff sought a ruling that 165 electronic attorney-client privileged and work-product protected documents produced in discovery were discoverable. Determining the defendants did not take reasonable precautions by relying on an insufficient keyword search to prevent inadvertent disclosure, the court found the defendants waived their privilege. The court noted several measures could have helped prevent this waiver, including a clawback (or other non-waiver) agreement the defendants voluntarily abandoned and/or complying with the Sedona Conference Best Practices for use of search and information retrieval.

CyberControls is made up of experienced specialists in the in the field of electronic discovery and production, computer forensics and the integration of computer technology and the rules of discovery. Our professional services teams are comprised of pretrial litigation consultants and field technicians and forensic experts. To discuss a specific issue you may be facing as a respondent or requesting party in a commercial litigation matter call us at 847-756-4890 or visit www.cybercontrols.net.

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