Criminal Defense Series: Notice of the JETWG’s Release of ESI Protocols

In 2008, a Federal Court in United States v. Graham[1] dismissed a criminal charge due to the government’s failure to produce its electronic discovery timely and effectively, ultimately making it impossible for the defense to provide adequate representation without undue delays.  As the Court stated, “discovery could have and should have been handled differently”.

It has been almost four years since the Graham decision, but has there been substantial improvement in the production of ESI in the criminal space? From my experience, I would say no. However, in the past few months, there have been some major developments which I believe will shape and improve the process dramatically, including the release of ESI Discovery Protocols by the JETWG.

In February, the Join Electronic Technology Working Group (JETWG) released recommendations and guidelines for ESI discovery. Leveraging the input and expertise of CJA panels, the FDO, DOJ, and other liaisons, these guidelines address the overarching principles that need to be maintained in order to improve the current disconnect. Though these recommendations do not bind parties to any particular process, they have carved out a clear process.

The guidelines address the following principles[2], excerpted directly:

Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.

Principle 2: In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.

Principle 3: At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.

Principle 4: The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any formats selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.

Principle 5: When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.

Principle 6: Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.

Principle 7: The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.

Principle 8: In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.

Principle 9: The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeing judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.

Principle 10: All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

Each principle is fully illustrated in the 3 separate documents produced by the JETWG: 1) Recommendations for ESI Discovery in Federal Criminal Cases, 2) Strategies and Commentary in ESI Discovery in Federal Criminal Cases and 3) ESI Discovery Checklist. Please read the full paper at http://nlsblogdotorg.files.wordpress.com/2012/03/final-esi-protocol.pdf

In commercial matters, some of these principles have been in practice for quite some time, for example, the meet and confer (Principles 3 & 4). However, these have not been previously adopted in the criminal arena making the discovery process more burdensome, extremely costly, and against the interest of justice.

Principle 8 is especially interesting: Multi-defendant cases should designate a discovery coordinator or seek the assistance of the Coordinating Discovery Attorney. In my experience working on multi-defendant matters, this principle is critical. As much as each defense team should have its own autonomy, having a designated Discovery Coordinator allows for a much smoother process for the general discovery. The Coordinating Discovery Attorney, for example, can provide guidance on best review and processing practices, appropriate vendor services and costs, procurement of funds, etc; areas which might not be that familiar to many criminal defense attorneys.

It has been a month since these protocols were released and I have already started to observe the benefit. It is not going to be a quick process, but I am confident that these protocols are the foundation necessary for efficient and effective management, review, and disclosure of electronic discovery in federal criminal matters.

Background:

Criminal Defense Series Part I: Tips for Handling E-Discovery when Representing a CJA Defendant
Source: original article
Author: Brooke Oppenheimer
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

(Part 2 of 3)Tip #5: Document Inaccessible and Not Relevant Systems  The Default Standard (as introduced in Part 1) provides guidance around the timing of e-discovery. Specifically, it states that, upon receipt of a request for production under Fed. R. Civ. P. 34, the parties shall search systems that are reasonably accessible and produce such information in accordance with Fed. R. Civ. P. 26(b).  This means where counsel fails to identify systems that are inaccessible and/or not relevant, counsel should be prepared to search and produce from such systems.

Counsel during the discovery phase should keep at a minimum a living document that details systems that are inaccessible and/or not relevant and ensure that this information has been provided to the courts and opposing counsel.

Tip #6: Make IT Aware of Inaccessible Systems

The new Default Standard when counsel identifies such systems as inaccessible, parties will not be required to search such systems until the search of all reasonably accessible relevant data repositories are completed.

When such systems are identified counsel should make IT aware that production from such systems be required, because acquiring data from such systems might require the use of third-parties or the use of internal IT resources. By providing notice you are enabling IT to plan, which generally makes the production (if necessary) less costly and disruptive.

Tip #7: Be Prepared to Defend Requests for On-Site Inspection

The new Default Standard further holds that any such request for information that is not reasonably accessible must be narrowly tailored and with good cause.  The Default Standard also mandates that any request for on-site inspection pursuant to Fed. R. Civ. P. 34(b) is to be reviewed for (1) good cause and (2) specific need.

Notably, the default standard does not provide any guidance as to what constitutes good cause or specific need, so counsel should be prepared to defend its request for on-site inspection vigorously.  In this regard, both “good cause” and “specific need” can be demonstrated to the court by various techniques, but should generally include a technical affidavit or report that supports the need for an on-site inspection. 

Tip # 8: Identify Restrictions

The new Default Standard also requires the parties to disclose any restrictions specific to the scope and method of the electronic search of such information.

Counsel would be well served by engaging in a dialog around any such restrictions with the technical stakeholders involved in the search, because often what is obvious to a technologist might not be to counsel.

 Tip # 9: Maintain a List of Capabilities and Limitations

Although the Default Standard is not clear as to what constitutes a restriction, counsel would benefit from having a firm grasp on the capabilities and limitations of any search tools being utilized.

In-house counsel should maintain a list of such limitations and provide this to outside counsel at the on-set of the discovery process.

Tip #10: Appoint an E-Discovery Liaison

Each party to a case is required to designate an e-discovery liaison through which all e-discovery requests are to be made. The individual can be a third-party consultant, an employee of the part, or counsel.

Counsel should select someone early that knows e-discovery law and technology and ideally is also adept at searching for information. It is advisable that Counsel engage the Client technology team in selecting such an individual because if the person is not technically competent regarding the Client’s specific systems it could cause problems down the road.  A company that finds itself a frequent party to litigation would save substantial money, time and resources by creating a full-time in-house e-discovery liaison.

(Part 2 of 3. Stay tuned more tips on making the most of Delaware’s New E-Discovery Rules)

Looking for tips 1 through 5? Click Here

Background:

Making The Most Of Delaware’s New E-Discovery Rules: Tips 5-10
Source: original article
Author: Daniel Garrie
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

(Part 1 of 3) On December 8, 2011, the Delaware federal courts adopted a “Default Standard for Discovery, Including Discovery of Electronically Stored Information (‘ESI’)” – commonly referred to as the “Default Standard”.[1]  

The Default Standard has several key components that prescribe the process of e-discovery and the information sharing that must occur between opposing counsel. Notably, Rule 26(f) of the new Default Standard compels the parties to engage in substantive dialog around various aspects of the e-discovery process that is about to be undertaken. The Default Standard also requires that prior to the Rule 26(f) conference, the parties will have exchanged specific lists of information.

This article describes the new Default Standard for e-discovery and offers practical tips for practitioners.

Tip #1: Confer with Human Resources about Key Custodians

The Default Standard requires counsel to create a list of likely custodians with relevant electronically stored information. The list must provide the individual’s title and responsibility. Prior to the Rule 26(f) meeting, counsel should confer not only with in-house counsel but also with the client’s human resource representative to verify that the title and responsibilities being stated are both accurate and up to date.  Counsel might also want to identify who are full time and who are contractors as contractors may be using their own computer systems.

Tip #2: Work with Technology Stakeholders about Relevant Systems

Counsel, in creating the list of custodians and relevant electronically stored information, should work with the Client’s technology stakeholders. This information may require a significant effort by the Client, and so counsel should engage early with the Client’s technology team to avoid a time crunch. In-house counsel should consider working with the information technology group to develop a list, routinely updated monthly or quarterly, that contains these details and can be accessed by counsel without requiring legal to engage IT each time such information is required. Although this might appear daunting, the long term benefit of implementing such a system with the requisite underlying process delivers value to the legal and technology  groups, saving money, time, and resources.  It is important to note that many IT departments have applications up and running to manage user profiles. 

Tip #3: Establish a Retention Coordinator

Counsel is compelled to name an individual responsible for ESI retention and provide a general description of the retention policies for the systems identified as set-forth in Relevant Systems above.  The retention coordinator is required to perform the following: (a) ensure that the e-mail of identified custodians is not permanently deleted in the ordinary course of business and that all other information maintain by the custodians is not tampered with or destroyed; (b) provide notice as to the spam and/or virus filtering criteria used by e-mail systems – all such messages are deemed to be unresponsive as long as the filtering criteria is reasonable; and (c) within seven days  of identifying the relevant custodians, the retention coordinator must implement the aforesaid procedures and files  a statement of compliance with the court.

Counsel and in-house counsel should proactively reach out to their Clients IT team to identify the appropriate Retention Coordinator. The actual number or title of individuals is not specified by the Default Standard, but it would be logical to assume that at least one or two people within the IT leadership group would be appropriate. Identifying IT authorities early on saves time and ensures that the parties will not accidentally end up eliminating a system that is subject to a litigation hold, which has been known to happen. While many corporations have a retention policy, few have a person designated for its enforcement.  Enforcement typically occurs on a case-by-case basis when available storage space becomes an issue so Counsel should take pains to clarify what is policy and what is practice.

Tip #4: Identify Potential Problems

Parties should identify and provide notice to opposing counsel of any reasonably anticipated problems that might arise during the course of e-discovery. Because hindsight is 20/20 in-house counsel might want to compose a list of prior e-discovery issues that have arisen and utilize it appropriately. One possible implication of identifying problems earlier rather than later is that it can potentially lower the costs associated with the discovery process.

Tip #5: Document Inaccessible and Not Relevant Systems

The Default Standard provides guidance around the timing of e-discovery. Specifically, it states that, upon receipt of a request for production under Fed. R. Civ. P. 34, the parties shall search systems that are reasonably accessible and produce such information in accordance with Fed. R. Civ. P. 26(b).  This means where counsel fails to identify systems that are inaccessible and/or not relevant, counsel should be prepared to search and produce from such systems.

Background:

Making The Most Of Delaware’s New E-Discovery Rules: Tips 1-5
Source: original article
Author: Daniel Garrie
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

13 January 2012 – If you follow the multitude of e-discovery pundits and bloggers, there seems to be a general agreement that  lawyers take a disproportionate role in the battle to solve what is largely a technological problem, i.e, how to find information that is relevant to a case from the huge vats of electronically stored information that are collected and preserved in many cases or government investigations.   In a very informative article (chock-a-block with cites to excellent posts and articles) Karl Schieneman, President and owner of Review Less, a consulting and document review company which specializes in machine-assisted review, argues that  lawyers, time and time again, stand in the way of technology, preventing them from making real progress in the field of electronic discovery.  

For his article click here.

Background:

Top Ten Tips To Become More Proficient With Machine-Assisted Review
Source: original article
Author: posselist
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

For those of you who have never been to LegalTech New York (LTNY), it is regarded as “the most important” legal technology conference in the world.  Thousands of attendees converge from various continents to the New York Hilton in Mid-Town Manhattan from January 30 through February 1, 2012, to hear panelists and speakers disseminate the latest and most relevant content pertaining to the profession.  The bulk of LTNY consists of education, where there are various “tracks” such as Information Management, Technology in Practice, and Corporate Law Departments designed to provide tips and best practices for lawyers, law firms, and corporate legal departments.  Moreover, there are keynote speakers during morning and lunchtime sessions on various cutting edge topics by high ranking members in the industry.  Last, but not least, the Exhibitor Hall showcases literally hundreds of vendors with booths conducting live demonstrations, handing out marketing materials, and engaging their customer base in person. 

To get the most out of LTNY, here are some tips and tricks that you can use:

1. Plan a head – Visit www.LegalTechShow.com and download the brochure to map out your itinerary for all of the tracks that you are interested in attending.
2. Research – Remember that this is a technology show, so research the vendors that will be in the exhibit hall.  If your firm needs calendaring, docketing, eDiscovery, or early case assessment (“ECA”) software solutions to name a few, research the vendors that will be there so that you can get a live demonstration, attend their workshop, and/or speak with a representative about your specific needs.
3. Communicate – Attendees are surprised when they Tweet about or participate in a LinkedIn group discussion about what they want or need to see at “The Show” (as it is affectionately referred to), and have various vendors respond who are listening.  Tweet using #LTNY or #LegalTech hash tags to communicate with other attendees, including organizing a “Tweet-up” where you all can meet other like minded attendees during The Show.
4. Attend – You will be surprised how many thousands of people are at the hotel and in the keynote sessions versus those that are actually inside the workshops themselves.  It is imperative that people attend the workshops.  Often times, handouts are laid out on all of the chairs in preparation and many of them have to be recycled.  Attending is the most important reason to go to The Show in the first place.
5. Meet the presenters – I have been fortunate to ask questions and meet multiple panelists and workshop presenters from past conferences.  We have connected via LinkedIn and have had the pleasure of working together in various capacities since then.  Bring business cards and ask for them as well.  Get connected via LinkedIn and touch base from time to time so that they remember you.
6. If cost is an issue, visit the Exhibitor Hall and attend Keynote Sessions – Some firms and organizations cannot afford to send their employees to LTNY.  There are other ways to take advantage of The Show.  Registering for the Exhibitor Hall and attending the keynote sessions are usually free to the public.  Please visit www.LegalTechShow.com to confirm and plan accordingly.
7. Take the “Swag” and Marketing Materials – Companies spend thousands of dollars on the developing marketing materials and creative concepts of toys and trinkets to highlight their brand.  Not only should you take them, but read them to see if you have any questions before The Show ends. 
8. Get on the Guest List for Receptions and Night-Time Activities – This is a tricky part.  Many of the receptions are private for vendors’ clients or specific to only law firms/potential clients.  Some of the receptions are publicized in the LTNY brochure and your registration may get you in to one or two.  My recommendation would be to see if you can get on a guest list by contacting some of the sponsors to see if they are hosting events during LTNY or ask any of your existing clients/vendors the same.

This can be a very fun and exciting conference.  It is a wonderful introduction to legal technology.  Depending on whether or not you are a lawyer, litigation support professional, or a vendor, you will have very different experiences.  Vendors will be incredibly welcoming and inviting to those from law firms.  Lawyers and litigation support professionals will be deathly afraid that everyone is a vendor and is out to sell them something.  Regardless who you are, I encourage you all to forget who you are and why you are there and just be friendly to one another.  It makes “The Show,” less of a “show” and more like a professional gathering and exchange of knowledge from thought leaders in legal technology.

Don’t forget to stop by Digital Reef’s booth #1404 to view a demonstration and enter to win great prizes!

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com.

Background:

Tips and Tricks for LegalTech New York
Source: original article
Author: Kevin L. Nichols
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

Privacy is one of the public’s biggest concerns when discussing eDiscovery and its place within the realm of social media.  For one thing, many people feel that it still exists…it does not.  More and more courts are determining that there is no reasonable expectation of privacy when individuals voluntarily post updates, thoughts, suggestions, recommendations, etc. out in “the cloud” of public domain.  Various Tweets, status updates, “check-ins”, and the like have caused many problems for litigants from across the globe.  Who here has read all of the terms and conditions of all of the social media sites that they belong to and still belong to them?  I would argue that very few have.  So what can we do as regular citizens to protect our inalienable rights of Freedom of Speech and expression?  Here are some tips that may give you the impression that your social media activity is private but cannot guarantee that it is not discoverable:

1. Facebook – The biggest culprit in alleged privacy violations appears to be Facebook, due to the shear volume of users.  Under the Home button at the top right, there is a Privacy Settings button.  There, you can limit who has access to see your posts, determine whether or not your profile is searchable by strangers, and determine which applications you will allow access to your profile.  I recommend making your profile extremely private where no one can find you unless they have your customized URL or that your friends, who see you comment on a mutual friend’s page, sends you a request that way.  Moreover, I rarely “check-in” places so that I do not alert people of my actual whereabouts at any given time.  Employers, potential employers, or private investigators who are looking for your profile to see what kind of dirt that they can dig up on you will not be able to find you or if they are lucky enough to, they will have to develop further cleaver tactics to “friend” you in order to get behind your “friend” wall.

2. Twitter – Although it is difficult to say a lot using Twitter since it is limited to I believe 143 characters per Tweet, what you do say can go viral instantly and cannot be taken back.  Furthermore, Twitter can pin point your exact GPS location when you send a Tweet if you do not know what you are doing.  You also have to be careful using third party applications such as TweetDeck or UberSocial to send and receive Tweets because they have there own complicated privacy settings.  I advise people that want to Tweet just to there “followers” to go to settings under their avatar at the top right of the screen and check Protect My Tweets and leave Add a Location to my Tweets unchecked so that you do not disclose your whereabouts at any given point of time.

3. LinkedIn – Even though LinkedIn is the most professional social media site, you still can and should protect your profile.  The purpose of LinkedIn primarily is to network professionally so you want people to find you, however, you do not want EVERYONE seeing your activity, your status updates, your contact information, or sometimes your connections.  Depending on what industry you are in, sharing this information can be detrimental by giving away your competitive edge for free by disclosing your coveted contacts.  If you click settings under your name at the top right, there are buttons called Privacy Controls and Settings at the bottom that will allow you to limit who can see what if anything at all.

These suggestions will give you the illusion that you have privacy, however, as we all now should know, if your social media activity becomes a material issue in a lawsuit or legal proceeding, it will more than likely be discoverable and wind up in a trial where dozens of people, from vendors collecting and processing, to legal assistants and lawyers reviewing, and jurors and the audience seeing you holding one too many cocktails at last year’s Christmas party…

 For more information and case law regarding social media, please click here.

 To view a webinar on social media and eDiscovery, please click here.

Background:

Social Media Tips in the Age of eDiscovery
Source: original article
Author: Kevin L. Nichols
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

Tweets, status updates, wall posts, messages… these have all become forms of business communication. The acceleration of social media has created yet another e-discovery headache for litigators.  The problem is growing, and social media must be considered when preparing a case. It is almost required now that attorneys be knowledgeable and due diligence around social media. When comparing social media discovery to traditional discovery the process is essentially the same; search, identify, preserve, analyze and produce. But social media discovery requires specific techniques and a lot more “digging” than traditional discovery.

In a recent Digital Reef/ Masters Conference webinar, attorneys and experts gave best practice tips and techniques for doing social media discovery. The webinar provided available research tools and checklists for doing social media research, and gathering evidence. Sites like peekyou.com, people.yahoo.com, google.com/cse, to name a few, are sites that can be used as research tools to build a discovery profile using everything available through a public domain.

The panel stressed the need to document everything, and advised the audience “if your methodologies for retrieving evidence can be replicated, than you can be confident that you have carried out a reasonable and defensible means for gathering evidence”.

Find out how you can do social media discovery, what precautions you should take, and get access to research tools and checklists by viewing the webinar. The webinar recording is now available and can be accessed here.   

Background:

Tips and Techniques for a Defensible Social Media Discovery Process
Source: original article
Author: Kate Slattery
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

[As is the case with our 5 myths series, the opinions expressed in the 8 things guest columns are those of the guest contributor and not necessarily mine or AIIM's.  This guest post was compiled from a number of different contributors by Jenna Dobkin from harmon.ie.  The contributors were all among the list of top 25 SharePoint influencers relative to Social Business that had been previously compiled by harmon.ie -- note #3 is a pretty cool dude.]

Two thirds of global companies with annual sales of $ 1 billion or more are failing to become social enterprises, according to CapGemini Consulting global study released earlier this month. And while businesses are feeling the stinging sense of urgency they must adopt a true social business model if they are to remain relevant, sustainable and profitable, most simply don’t know how to go about it.

 Inspired by studies showing low user adoption of enterprise platforms like Microsoft SharePoint, we solicited advice on promoting SharePoint adoption from some of the most experienced and influential experts around. Each of the following road-tested tips and suggestions were supplied by one of the “Top 25 Most Influential SharePoint Thought Leaders in Social Business Today.”

Recommendations are divided into four areas, where years of experience are especially important; namely:

1. User Adoption
2. Simplicit
3. Focus on Business
4. Support for End Users

Incidentally, you may notice that there are actually 9 suggestions, rather than 8. 

User Adoption

1 — People are generally comfortable with the way they work on their daily tasks.  Many end users either don’t want to, or don’t have time to learn a new technology.  A typical day may consist of working on documents, spreadsheets and email.  When SharePoint comes along, it is often perceived to be a disruptive technology that’s being imposed upon them.  An important hurdle is training people on how easy SharePoint can be, especially with Office integration and daily tasks. (Laura Rogers, @wonderlaura)

2 — Deliver and show user value.  When using SharePoint as a social platform, it's important to help users to understand why they should use it and why they should take on the effort to tag an item, add comments or start to contribute content. It’s easy to deploy SharePoint, but if you want people to really use them, you have to sell and show the individual benefits of these social technologies to every single user. (Michael Greth, @mysharepoint)

3 — Provide the right kind of incentives.  Does your intranet solve a problem, lessen a pain point, or generally make your users’ jobs easier? If so, there is a natural incentive for them to use it. If not, they’re going to bypass SharePoint and find an easier way to get their work done. Resist the urge to award points or other extrinsic incentives for using SharePoint.  By making the reward for using SharePoint productivity, users will be more likely to use it because they want to, not because they have to.  (Marisa Peacock, @marisacp51).

4 — Find an in-house champion and ‘feed her’ on a regular basis.  User adoption is built around context. If you find someone who is using SharePoint, even in the simplest way, exposing and encouraging that solution will be much more relevant to end users than a massive solution pushed out by IT. (Mark Miller, @EUSP) 

Simplicity

5 — Use Managed Metadata to simplify social interactions within companies.  SharePoint Server 2010 introduced the notion of managed metadata, a service that provides taxonomy and folksonomy tagging capabilities to the platform. Users tag new or existing content or configure libraries to automatically tag content. The tags are used in navigation scenarios as well as in search that adds automatic pivoting capabilities on the results of a search query. (Andrew Connell, @andrewconnell)                                                      

6 — Strike the right balance between customization and third party add-ons.  Use a consumer-grade user experience design to make the platform more usable, and then look to third-party products to fill the main functional gaps, such as social networking and social sharing features. At all costs, avoid a Frankenstein’s monster created by too much in-code customization of the base platform. (Lee Bryant, @leebryant)

Focus on Business

7 — Change can’t be for changes sake; it needs a purpose.  Simply telling everyone you’re going to have to learn a new way of working as we are rolling out SharePoint isn’t going to win many friends. Instead, demonstrate real, measurable business benefits of the change. It’s not good enough to just say ‘We’re doing this so we can collaborate better’! Deliver something concrete, even something very simple like using Meeting Workspace, and provide measurable results.  For example, ‘Using Meeting Workspace we reduced time wasted by 15 minutes per meeting that were otherwise lost due to errors developing the agenda or being unable to find documents – which equates to 20 hours per week, saving $ XXX per month’.  Once you have the idea that SharePoint can make a measurable difference, you will see people looking at other ways they can use it, thus increasing adoption and the value snowballs. (Andrew Woodward, @andrewwoody)

8 — Governance isn’t evil.  Often times, a governance plan is written and presented to the users as a set of rules to control their every movement. Don’t be a dictator. Show them how governance helps them by stopping IT from “doing whatever they want” and making SharePoint more consistent. With a clear policy on how information is organized, secured and retained in their hands, users will be confident about relying on SharePoint to do their job. (Shane Young, @ShanesCows)

Support End Users

9 — Supporting your business users is a critical component of getting users comfortable with SharePoint.  Here are three specific suggestions, courtesy of Joel Oleson (@joeloleson):

1. Build a SharePoint User Group/Community in your company with regular meetings.  Nothing is more helpful than being able to find out you're not the only one  struggling with an issue, and connecting with someone who already found a solution.  The community is invaluable when it comes to finding support and people who have ‘been there’ before you.
2. Make your SharePoint Team available in a scalable and non-threatening way - I've fond of setting up a sharing environment with  Q&A sessions and something new we’re calling ShareLabs, where people can ‘show and tell’ as well as ask us how to do things or get recommendations on strategic direction for a variety of uses around building sites and platform.
3. Make SharePoint End User Training Accessible Training – Brown bags, workshops and more formal single and multi-day training can help people gain the expertise needed to overcome that initial barrier to adoption.  A huge road block to SharePoint adoption is lack of understanding, despite an overwhelming need to use it, and people frustrated when SharePoint doesn't work like they expect.  Being forced to use something that is perceived to be worse than the previous solution is an ‘app killer’.  People need to get their hands wet before they jump in and use it.

 —–

Some other recent posts you may have missed…

Geoff Moore (@geoffreyamoore) and the #ECM coolness factor

Get that Christmas shopping done early; yes Virginia, I do have a life outside AIIM

Some #social, #local, #mobile presentations you may have missed…

Rick Perry Inspired AIIM Conference invitation

Background:

8 Tips for Transforming SharePoint into a Social Business Hub
Source: original article
Author: John Mancini
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

I don’t know one person that enjoys participating in something they aren’t very good at.  I roll my eyes every time we visit some friends that want to play Trivial Pursuit.  The reason I frown at playing that game is because I’m not very good at it.

The first part of my career was focused on medical malpractice cases and I learned medical terminology because I needed to understand case facts and review discovery.  The second part of my career focused on construction law and, again, I only learned how to read blueprints because I needed to understand the facts of the case.  Now think about how the average attorney felt when they realized they were at the top of their game; a seasoned litigator in a specialized area of law, and then came along e-discovery.  They were experts but the rules to the game changed.

Whether you are reading this post as an attorney or support staff, take a few moments to think about the percentage of people in your office that really have a handle on e-discovery.  I would guess that there aren’t many, and argue that the reason so many people are not e-discovery proficient is because they don’t like it due to the fact that they’re not good at it.

Understand that ESI is not going away and that the size of stored data is growing faster than you can imagine.  In order to get started getting a handle on this, exercise the same rules you would before a jury and keep it short and simple.  We wouldn’t be moving in a direction involving so much technology if it didn’t somehow compare to what we are already familiar with.  Consider your file cabinet containing labeled folders.  We are comfortable in this work environment because we know where all of the files are, it’s structured and we know what is in each drawer. Documents are likely organized by label and filed chronologically.  We know that we have filed the most recent final copy, there is likely only one copy in the file and that similar documents are likely grouped together in the file cabinet.  What I have just described maps exactly to the following terms: “data map”, “electronic chain of evidence”, “PST format”, “threading”, “pivot documents”, “near dupe analysis”, “sort orders” and “de-duping”. So you already know and understand some pretty complex concepts within e-discovery.  To learn more, keep it simple and start with these steps:

Number 1:  It is your duty to know where the evidence is and how to find it. There are many resources including courses, blogs, articles, seminars, and books to choose from in order to educate you on how to locate data.  Instead of overwhelming yourself, realize and accept the fact that you are never going to learn everything there is about e-discovery.  Take baby steps and change one thing you do in your daily practice: sign up to read a daily blog, commit to a monthly seminar, pick up a book on e-discovery.

Number 2:   When exploring ESI it is impossible to look at the budget assigned to the case and then compare it to what the case is worth without some type of metrics.  A very simple metric to start with is the sheer volume of data, (the documents).  Once you can identify the volume, you’ll no doubt look for ways to reduce the size of the data and inherently learn about the technology available to assist you.

Number 3:  Communicating electronically is the method of choice.  It is possible to find a harmful email but you are just as likely to find a good email to support your client’s claims.  It is important to weed through the data to find the relevant evidence.  Be proactive instead of reactive and read your client’s email in order to familiarize yourself with the lingo and the likely terms that are used.  The attorneys in the Enron matter would not have learned about “pump and dump” or “rank and yank” had they not done the reading.  By filtering through some of the key custodians’ emails, you find key words to assist you in testing samples of data and getting closer to finding that needle in the haystack.  Technology that can help you with this includes filtering, facets, white box searching, black box searching, clustering or predictive coding.

Number 4:  The involvement of the client and the entire litigation team is crucial and, if absent, has a negative ripple effect as you move through the different phases of the case.  Guessing games by the support staff during these phases can prove to be expensive and invite remedies down the line as the attorney eventually comes to understand the data, the volume, and what steps are necessary to review and produce it.  More importantly, if the attorney is uninformed about how important these decisions are; they are equally uninformed about how to form their requests to clients or opposing counsel.  E-discovery is just a blend of two professions, legal and IT.  It can only work properly when those two teams can work together, have some understanding of each other’s profession and communicate effectively.  Look for experts to rely on not only in the industry, but in your own office, and share your experiences with one another.  This will allow you to build a bank of information to streamline these processes in the future and learn about new ones.  Don’t be afraid to stop and ask questions about new terminology and what effect decisions you are making have on collection of documents, culling of data or review.

Number 5:  There is no cookie cutter case involving e-discovery.  Tracking the data and decisions you make during the various phases of the case are very important if opposing counsel decides to challenge your process two or three years down the road.  If in the event there is a dispute between the parties, maintaining a toolkit and developing documentation regarding these procedures based on tools and technology available at the time will speak highly to the court.  A good example of this is baseline checklists for every phase of the EDRM [www.EDRM.net].

Remember, although  no one in the legal industry prior to e-discovery actually signed up to be an IT professional, in order to play the game and represent clients well, you have to take the necessary steps to understand computers, computer files, new terminology, and most importantly, be open to the idea of change.

Background:

E-Discovery 101: 5 Tips to Help You Keep It Short and Simple (“KISS”)
Source: original article
Author: Michelle Kovitch
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.

Representing a CJA (Criminal Justice Act) defendant[1] has always posed a unique set of challenges, but now with the explosion of electronic evidence, the task is becoming even more overwhelming.  Daunting in a civil litigation with endless resources, a CJA Attorney is often asked to take on the task without a billable staff, financial resources, or even any experience in e-discovery management.

It is not uncommon to find over four terabytes of discovery disclosed in a CJA matter. This often contains forensic images, DVDs, tiff images, loose electronic files, audio/video, and wiretap linesheets. Most of the data will even be in a format that cannot be immediately reviewed.  Not only with the data be voluminous, it will also be disorganized, mingled, and incomplete (should we expect anything less?)

Most attorneys fall back on antiquated approaches: printing the documents or creating spreadsheets/inventories of the data.  However this strategy fails because not only will the attorney be unable to adequately review and organize the mass volume, s/he will also miss relevant information. For example, the attorney might overlook files that cannot be opened without being processed or “unlocked”, files that do not print as displayed in native format, or metadata that contains crucial historical information. Unfortunately, without a comprehension of additional resources and methods available, this might seem like the only option.

So what should a CJA attorney do when s/he is assigned a case with sizable electronic discovery?

Upon assignment (but before Disclosure):

Talk with your client. Your client should have an idea of the electronic evidence available. Some of the questions that might be helpful:

• How many computers do you or your family own or use?
• Do you actively use any social media sites such as Facebook?
• Do you store a lot of paper files at your office?

Contact the National Litigation Support Office of the United States Courts Office of Defender Services.

• This office can advise you on all aspects of discovery; from initial disclosure to trial presentation. This organization has worked with CJA panels and Federal Public Defender offices throughout the nation and has obtained a plethora of experience showing what has worked and what has not.
•  The NLSO can advise attorneys on best practices and/or recommend consultants or software that can assist attorneys with a particular case.
• The support office can also assist attorneys in obtaining data in a format that can be managed affordably and efficiently.

Upon receipt of Discovery:

Call Consultants and Vendors & Inquire About Their Services

• Find a vendor who has experience in handling the type of data you are working with.
• Ask for references from other CJA attorneys
• Inquire about their assistance  in seeking court funding
• Ensure that your project manager or advisor is a specialist in criminal defense document management
• Watch complete demonstrations of the product and ask if it is possible to test the product prior to contracting.

Request a vendor catalog your data and provide a detailed report with suggested review methods plus associated costs.

• Please note that the vendor should do this at no cost. If a vendor tries to charge you for this, look elsewhere.
• You should look for a report that provides a thorough explanation of your data with multiple options. Though it should be technically descriptive, the explanation should be drafted in manner that is understandable. After all—you are the one who will need to defend the need to the Court.
• It does not hurt to ask more than one vendor to do this. You will then be more comfortable with your choice and the Court will be able to see pricing comparisons.

File a motion with the Court for funding for Data Processing and Review services. In your motion, describe your data, provide an explanation of what needs to be done (and why you cannot review the data without such services) and explanation of cost. This Motion should include why you want to proceed with that vendor (cost savings, expertise, forensically sound technology, etc.) Append vendor proposals so that the Court is comfortable with your research.

This due diligence will provide the resources necessary for effective representation. And even if the funding is denied (forcing the CJA attorney to use archaic processes), it might preserve the right to appeal when the judgment resulted from the inadequate ability to review exculpatory evidence. Generally though, a Court will appreciate the thorough explanation of the data sets and cost options, ultimately resulting in funding for such services.

Follow these tips and dealing with e-discovery in a CJA matter can seem less daunting. Now you can focus on the strategy for trial rather than worrying about electronic data.

Background:

Criminal Defense Series Part I: Tips for Handling E-Discovery when Representing a CJA Defendant
Source: original article
Author: Brooke Oppenheimer
Categories: Electronic discovery, e-discovery, ediscovery

This e-discovery news is syndicated from e-discovery websites and blogs that make their feed available via RSS. Contact us to have your RSS feed added or removed.