Implementation Of Law: A Word Of Wisdom

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We have laws for just about everything from personal laws to commercial, contractual, e-discovery, and list goes on and on…

What’s important is to understand the ‘implementation’ of such laws! In my experience, as an attorney, I have come across hundreds of laws from all the way from legislation to the point when they are repealed! Laws have been around for a long time, yet we regularly find instances/cases where person suffered illegal detention, false imprisonment, and so forth.

The litigation hold in the process of e-discovery can be summed up in the following definition:

A litigation hold is a written directive advising custodians of certain documents and electronically-stored information (ESI) to preserve potentially relevant evidence in anticipation of future litigation

Well, easier said than done! In the NuVasive, Inc. v. Madsen Med., Inc., No. 13cv2077, 2015 WL 4479147 (S.D. Cal. July 22, 2015) case, simply implementing a legal hold was not enough to satisfy a party’s duty to preserve. Instead, the party must take affirmative steps to implement the hold, follow up with custodians to ensure data preservation, and also ensure that the hold covers all forms of data, including text messages and other emerging data formats.

Well, that seems like and, in fact, is a daunting task. In today’s computing scenario, where majority of the time the workforce is mobile, and not to mention the influx of mobile devices each of us have an use – then we try to remember “Where in the world did I save/store that document” – you get the point.

Within the realm of e-discovery, litigation can be reduced by providing an indispensable, seamless, and a fully collaborative platform/solution so that documents, text messages, and voice can be saved in repositories. Proactive approach towards data compliance will reduce costs in the long run for corporations!

The Information Governance Model (IGRM) Reference Guide at E.D.R.M does a fairly decent job at presenting a model.

While the future of e-discovery may rest on the foundation of information governance, a wise and proactive approach with special emphasis on building efficient processes, and more importantly automating those processes within the organization must be adopted to reduce legal complexities.

Here’s a sample tutorial of what SharePoint/Office 365 Compliance Center can help you achieve!

New Changes In Federal Rules of Civil Procedure (FRCP)

Within the realm of eDiscovery, the Federal Rules of Civil Procedure (FRCP) become important to understand and follow. Numerous court judgments have been seen in recent times, where Judges have levied heavy fines and penalties upon parties who did not abide by these rules.

Several Rules have been amended as part of the changes effective today, with the changes ranging from promotion of cooperation (Rule 1) and proportionality (Rule 26(b)(1)) to failure to preserve electronically stored information (Rule 37(e)) .  Here is a list of key Rules changed:

  • Rule 1. Scope and Purpose
  • Rule 4. Summons
  • Rule 16. Pretrial Conferences; Scheduling; Management
  • Rule 26. Duty to Disclose; General Provisions Governing Discovery
  • Rule 30. Depositions by Oral Examination
  • Rule 31. Depositions by Written Questions
  • Rule 33. Interrogatories to Parties
  • Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
  • Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

Noteworthy changes are in Rule 26:

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Information within this scope of discovery need not be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

(c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending —

or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(d) Timing and Sequence of Discovery.

(2) Early Rule 34 Requests.

(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and

witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.

(f) Conference of the Parties; Planning for Discovery.

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

 

You can download complete set of changes by clicking here.

How e-Discovery works in SharePoint 2013

SharePoint 2013 allows you to use eDiscovery and compliance features to manage and recover evidence used in civil litigations, as well as manage the records for your enterprise. Being such a powerful web based platform, you can create various sites (similar to web sites) within the SharePoint environment.

Before deploying SharePoint Server eDiscovery features, an important consideration, however, is to plan the search service application infrastructure for your organization. E-Discovery uses search service applications (SSAs) to crawl SharePoint farms. You can configure SSAs in many ways, but the most common way is to have a central search services farm that crawls multiple SharePoint farms. You can use this one search service to crawl all SharePoint content, or you can use it to crawl specific regions, for example, all SharePoint content in Europe.

The way it works is simple: To crawl a SharePoint farm, search first uses a service application proxy to connect to it. The eDiscovery Center uses the proxy connection to send preservations to SharePoint sites in other SharePoint farms.

Key features and APIs in eDiscovery include:

  • Case Manager, which enables records managers to create and manage enterprise-wide discovery projects, place potentially large amounts and various types of content on hold, and preserve a snapshot of content.
  • Enterprise-wide access, which includes the ability to put content on hold and to search for content from a central location. It also includes the ability to conduct searches, access SharePoint content, and place content on hold in any configured SharePoint location.
  • In-Place Holds, which enables an attorney to preserve a snapshot of content while ensuring that users can continue to make changes without disturbing the state of the content snapshot.
  • Analytics, which enable attorneys, administrators, and records managers to collect and analyze data about eDiscovery activity.

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e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
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(855) – 833 – 7775
(703) – 646 – 3043

Predictive Coding In E-Discovery: The Game Of Convenience

Back in 2012, Magistrate Judge Andrew Peck’s decision in Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y. 2012), officially gave the green signal to start utilizing TAR in e-Discovery. The same Judge recently issued an opinion in Rio Tinto PLC v. Vale S.A., 14 Civ. 3042, 2015 WL 872294 (S.D.N.Y. March 2, 2015), titled “Da Silva Moore Revisited”, and stipulated sharing of “seed sets” between parties.

Importantly, the opinion reiterates that “courts leave it to the parties to decide how best to respond to discovery requests” and that courts are “not normally in the business of dictating to parties the process that they should use”.

Importantly, Judge Peck instructed that requesting parties can utilize other means to help ensure TAR training, even without production of seed sets. For instance, the honorable Judge suggested statistical estimation of recall towards the end of the review to determine potential gaps in the production of documents.

Yet, in cases such as Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug, 21, 2013), for example, the court declined to compel identification of seed set, however, encouraged cooperation between parties.

So, where are we going with TAR?

According to the Grossman-Cormack glossary of technology-assisted review with foreword by John M. Facciola, U.S. Magistrate Judge, seed set is “The initial Training Set provided to the learning Algorithm in an Active Learning process. The Documents in the Seed Set may be selected based on Random Sampling or Judgmental Sampling. Some commentators use the term more restrictively to refer only to Documents chosen using Judgmental Sampling. Other commentators use the term generally to mean any Training Set, including the final Training Set in Iterative Training, or the only Training Set in non-Iterative Training”. The important thing to know about seed sets is that they are how the computer learns. It is critical that a seed set is representative and reflects expert determinations.

With this in mind, in one of my articles back in April 2014 titled “E-Discovery Costs vs. Disseminating Justice – What’s Important?” I concluded that technology must strictly be used as a tool in aid to the due-process of law.

As an attorney, I love a good argument corroborated as well as substantiated by solid precedents. Use of TAR in e-Discovery invariably is becoming a matter of “convenience” between both parties in trying to resolve issues. Well, we have arbitration laws for that matter!

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e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

Tax Court Approves Predictive Coding for First-Pass Document Review

Invariably, the logical answer to coping up with Big Data with regards to eDiscovery is Predictive Coding. While definitions of predictive coding vary, but a common form includes uploading electronic documents to a server followed by taking representative samples, and ‘Seed Sets’ are created by attorneys who are familiar with the legal issues of the case. Attorneys, then, review the seed sets and code each document for responsiveness or other attributes, such as privilege or confidentiality. Utilizing a re-iterative approach, predictive coding software is tweaked and adjusted regarding how the computer will analyze future documents.

Recently, a U.S. Tax Court gave permission to use predictive coding in Dynamo Holdings, Ltd. vs. Commissioner, 143 T.C. No. 9 (September, 17, 2014) case, whereby permitting a taxpayer to use predictive coding as a first-pass review of a large set of documents, despite the. Apparently, the big idea is to reduce costs. While respondents in this case asserted predictive coding to be an ‘unproven technology’, the court completely disagreed justifying this by citing several precedents along with an expert testimony. Predictive coding contains two important elements known as ‘Recall’ and ‘Precision’ – I have detailed these concepts in my earlier post.  Inspite of this, the court’s opinion is important for taxpayers faced with requests for a substantial amount of ESI, and has the potential to reduce costs that may easily run into millions of dollars.

This reaffirms one thing for sure – IT, which was once considered a necessary evil, is now evolving to form a symbiotic relationship with the legal industry, and with other industries alike. Manual document review is certainly going to be obsolete in the near future – if not already! Analytics, predictive coding, machine learning products and technologies providing us with business intelligence (BI) to make informed decisions. For example, Microsoft’s newest products such as Delve, along with host of BI tools provide meanings to your data, while SharePoint e-Discovery center adheres to the regulatory compliance and standards. With this said, predictive coding technology is essentially replacing manual work, and tech savvy attorneys seem to have a ball with one!

The important aspect in this regard lies with determining the optimal values for ‘recall’ and ‘precision’ within the predictive coding software!

e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043


The Power Of Cloud Computing: Multi-Tenant Database Architecture

Software as a Service (SaaS) denotes a novel and innovative paradigm, and the fact that companies do not have to purchase and maintain their own Information Technology (ICT) infrastructure; instead services from third party are acquired. Multi-tenancy permits SaaS providers to provide similar service to various customers (tenants), which share physical and/or virtual resources transparently.

Multi-tenancy database architecture essentially forms a design in which a single instance of the software is run on the service provider’s infrastructure, and multiple tenants access the same instance. Simply put “A multi-tenant application lets customers (tenants) share the same hardware resources, by offering them one shared application and database instance, while allowing them to configure the application to fit their needs as if it runs on a dedicated environment”. One of the most conspicuous features of Multi-tenant architecture is that allows for consolidating multiple businesses onto the same operational platform or system. Multi-tenancy invariably takes place at the database layer of a service. As an analogy, think of a rental apartment building with numerous tenants, each having its own requirement of storage, space, and utilities.

Easier application deployment for service providers, improved rate of hardware utilization, and reduction in overall costs especially for SMEs are core benefits of Multi-tenant model. In traditional single-tenant software development, tenants usually have their own virtual server. This set-up is similar to the traditional Application Service Provider (ASP) model. However, in the SME segment, for instance, server utilization in such a model is low. By placing several tenants on the same server, the server utilization can be improved.

There different kinds of Multi-tenant models that exist in database applications today are as follows:

1.   Separate application, separate database, and infrastructure (Isolated Tenancy)

2.   Separate application, separate database, shared infrastructure (Infrastructure Tenancy)

3.   Shared application separate database, shared infrastructure (Application Tenancy)

4.   Shared application, shared database, shared infrastructure (Shared Tenancy)

The figure below illustrates a high level architecture of Multi-tenancy. Multi-tenant approaches as a continuum paradigm. The far left (Isolated Tenancy) depicts each tenant with its own application instance running and as we move further towards the right, sharing of tenancy increases, ultimately reaching the far right side (Shared Tenancy)

multi-tenancy-application-architecture

Multi-tenancy application architecture


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043


What’s Wrong with Outsourcing? Really?

A company’s existence is directly linked to its profit-making capabilities. This includes employing the most gifted workforce, running optimized operations, having excellent quality controls in place, just to name a few. There is an invisible force, however, constantly acting behind this entire process – the force of ‘laws of economics’ – principles of demand and supply.

The word ‘globalization’ is not a new buzz word anymore. However, its relation to economics is where the dilemma of outsourcing and offshoring lies. Gone are the days when corporations had loyal employees working for them, the technological advancement has disrupted not only how we work but how we think – Yes! We think Google, Facebook, LinkedIn, Twitter, and for the most part have become dependent upon technology.

So, what impact does technology have on driving profits for a company? Look around you – things have changed, human behavior has changed, our thinking process has changed – we have become victims to this unstoppable monster.  As the Greek philosopher, Heraclitus, rightly said “There is nothing permanent except change”. As a result, companies who adapt to the changing environment remain at the forefront, and those who resist potentially may bear the grunt. In any case, the objective remains to make profits for shareholders.

We all are aware of the exponential growth of technological innovations and big data. What should companies do to maximize their profits in this dynamic environment? Outsourcing seems to be the logical solution. The single biggest advantage is reduction in existing costs. Consider a simple scenario related to e-Discovery industry:

“Company A is looking to hire Document Review Attorney for its e-Discovery project. What could possibly be the lowest per hour rate for a first pass review? How does 20 dollars per hour sounds! In today’s economy, believe it or not, you will find qualified, experienced, and certified individuals who would be willing to work. In the US, this rate is certainly peanuts for an attorney, but in India, Pakistan, Philippines, and Bangladesh, for example, 20 dollars per hour would fetch a luxury lifestyle”

With the advent of cloud computing, developing countries now have access to all the latest technologies, learning tools, methodologies, norms, usages etc. Workforce has truly become global and cloud computing is driving costs further down. As buyers influx the marketplace searching for low priced efficient technologies, sellers lower their costs to remain competitive. Consequently, companies may not afford or attract high paid workers. To bridge the gap, various outsourcing models fit the puzzle, providing same services at a drastically reduced price. Companies now have access to equally qualified workforce available in the cloud. To top it off, Ivy League universities now offer Bachelors and Masters level degrees online. So, for example, I could obtain an MBA degree from an Ivy League business school, while residing anywhere in the world, and provide expertise on a project via the cloud.

Having said that, profitability, principles of demand and supply, and cloud computing technologies are factors exerting pressures on US companies to find alternative ways to increase profitability. Microsoft and Amazon provide secure state-of-the-art data storage centers, and with SaaS, PaaS, and IaaS technologies, allowing for data security. A good example is of WordPress – majority of their employees are virtual. Similarly, Microsoft with its launch of Office 365 and allied products is evidently cloud based, and a qualified professional could administer, manage, and support Office 365 from anywhere in the world!

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outsourcing

Outsourcing


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

7 Tips for Implementing E-Discovery Best Practices

E-Discovery best practices begin with making data management as part of daily routine and business operations. Attorneys cannot achieve this objective without the help of IT department, and IT personnel cannot properly maintain data without guidance from attorneys about what should be kept or destroyed. Federal Rules of Civil Procedure related to e-Discovery and keeping up with changing law in the area is a good start, however, knowing and understanding how to put these lessons to practically work in practice is the key to implementing and conducting e-Discovery successfully. Planning ahead plays a pivotal role as it sets the standard for effective relationships between internal and external legal and technical resources. Below are few tips for implementing effective best practices for both inside and outside counsel.

  1. Be proactive and have a formal document retention policy in place with rules for saving and destroying electronic documents.
  2. Increase company-wide awareness of litigation readiness, and train employees to organize documents in an organized manner. Better yet, implement an effective document management solution such as M-Files – which includes e-compliance module.
  3. Effectively cater to big data and effectively implement strategy for later archival, identification, and production in a timely fashion.
  4. Train IT personnel to act as a deposition witness as per rule 30(b)(6).
  5. Preserve potential evidence when necessary while effectively train and involve key legal and IT personnel as soon as litigation is imminent.
  6. Must have adequate knowledge about client’s information systems and operations to effectively define e-Discovery parameters, ensuring smooth functioning with opposing counsel. Try to minimize disruption of clients operations.
  7. When a document request is received, be a partner in the data retrieval process – not just a messenger.

While harmony, effective communication, and smooth functioning between attorneys and IT personnel can prove to be beneficial for the organization, keeping current with latest technology and how it can streamline the e-Discovery process is equally important. After all, the purpose of technology is to act as a tool to handle complex e-Discovery in a speedy and cost efficient manner.

e-Discovery best practices

e-Discovery best practices


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

E-Discovery Costs vs. Disseminating Justice – What’s Important?

In e-Discovery, courts, attorneys, e-Discovery consultants, and other industry veterans emphatically deliberate proportionality and predictive coding as major apparatuses for reducing e-Discovery costs. First, Rule 26 – “duty to disclose; general provisions governing discovery” of FRCP encompasses, in entirety, matters relating to initial disclosure, time, scope and limits, pretrial disclosure, limitations, parties conference, sanctions, etc., In other words, the legislative intention behind Rule 26 is to ensure and streamline e-Discovery governance matters.

edrm

Secondly, e-Discovery costs can easily escalate to millions of dollars. For instance, on average a Gigabyte (GB) contains 15,000 documents. An average collection of 50 GB entails 750,000 documents which need to be sifted through for relevant details pertaining to specifics of case for defensibility purposes. To give you an idea in terms of costs, reviewing those documents could cost as high as $2 per document or 1.5 million dollars! If 60% were culled down using technology assisted review (TAR), costs would still be as high as $600,000 dollars! E-Discovery budget calculators can be found here.

Here’s the catch! These 750,000 documents are culled down in order to identify potentially relevant documents. The traditional e-Discovery approach is to process all data to TIFF or native for full linear review, whereas, newest and advanced method entails indexing, culling, legal first pass review, and process data for review. With the advent of ‘Big Data’ technology introduced (TAR) or predictive coding as a tool for handling e-Discovery in an efficient cost effective manner.

Statistics plays a pivotal role in TAR, and courts have endorsed usage of TAR in one way or other. However, there may be pitfalls as I explained in one of my earlier posts relating to the limitations of precision and recall in TAR.

Has our justice system become dependent on technology?

Technology is great, however, it must strictly be used as a tool in aid to the due-process of law. As an attorney, I would argue against our justice system’s inclination towards dependability on technology. There are other ways to reduce costs such as global talent acquisition, outsourcing, dual-shoring, offshoring etc., and numerous law firms and corporations have adopted such business models, documenting additional 60% reduction in e-Discovery costs. While reduction in e-Discovery costs are essential, the opportunity cost may undermine defensibility.


e-Discovery and | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043