Please join Arraya Solutions and EMC for a lunch-and-learn seminar focused on enabling your organization to proactively manage content for litigation readiness, risk mitigation, operational governance, and content reuse.

Learn how EMC SourceOne eDiscovery products help you create repeatable eDiscovery processes – while providing access, defensible collection results, and chain of custody for all electronically stored information.
Join your colleagues as we explore innovative solutions that will enable you to:

• Respond quickly, accurately, and defensibly to electronic discovery demands
• Conduct early case assessments to determine case merit and legal strategies
• Reduce eDiscovery costs through a systematic process for identifying and retaining information on a proactive basis
• Through a single discovery engine, search e-mail, file shares, content management systems, and desktops

14-Sep-2010 11:00 AM – 4:00 PM EST
Downingtown Country Club 93 Country Club Drive Downingtown, PA 19335

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J. David Morris, EMC SourceOne eDiscovery - Kazeon

Over the last five years, there has been a confluence of eDiscovery software, case law, information governance policies, and information technology integration, which have all helped shaped today’s eDiscovery market. As we look toward the future, we ask ourselves how to continue to optimize eDiscovery to intelligently reduce data volumes, efficiently decrease collection quantity, and streamline the review process, while also delivering the highest possible document accuracy, reliability, and repeatability. Finding relevant ESI is becoming more challenging for organizations, as ESI volume increases and is spread across email systems, file shares, and laptop/desktops.  To complicate matters further, attorneys are expanding discovery motions to include new ESI repositories, such as SharePoint and other collaborative tools, which further increase ESI volume and complicates identification and collection.  So, how can the problem be addressed to balance the opposing constraints of ESI volume, eDiscovery expense and relevant document precision and accuracy? The answer is simple, but will be challenging to implement.  The future eDiscovery arms race is in the development of advanced, intelligent analytics capabilities.  In other words, it is all about the semantics.

The first advance in reducing non-relevant ESI collection (or ESI culling) was simple file identification.  Software, such as EMC’s Kazeon, delivered the capability to identify file types quickly and easily to exclude operating system files (e.g. CABs) and other program executables files (e.g. Word, Excel, PowerPoint, Numbers, Keynote, etc.), which are resident on all computers and do not contain any relevant ESI. File identification technology was a quantum leap. It reduced collection volume by 50% to 60% over the traditional brute force forensic collection, which copies entire disk drives.  The second advance was Boolean keyword search, which has been a powerful eDiscovery tool.  Over time, keyword search has become more sophisticated with the addition of keyword spelling variants and root word variations. This increased the keyword search accuracy by including common misspellings and root variants, like talk vs. talking.  However, keyword search requires a priori knowledge for what one is looking, which is problematic and a limiting success factor.  As valuable as it is, keyword searches often include many non-relevant documents (false positives) or exclude too many relevant documents (false negatives).  The complication is within our language usage. We have a synonymy effect, which is that one of two or more words in the same language have the same meaning (as in “student” and “pupil”), as well as the polysemy effect, which is that many individual words have more than one meaning.  The impact of polysemy on search complexity is as follows:

Polysemy is a major obstacle for all computer systems that attempt to deal with human language. In English, most frequently used terms have several common meanings. For example, the word fire can mean: a combustion activity; to terminate employment; to launch, or to excite (as in fire up). For the 200 most-polysemous terms in English, the typical verb has more than twelve common meanings, or senses. The typical noun from this set has more than eight common senses. For the 2000 most-polysemous terms in English, the typical verb has more than eight common senses and the typical noun has more than five[1].

The English language complexity impacts our ability to search and identify relevant information with efficiency, accuracy, and precision. If we consider the addition of other languages on the identification and search challenge, we have to tackle the semantic differences, as well as additional translation complexities between languages.

What are the next steps in search and identification analytics technologies? There are nascent concept search capabilities in today’s market, which have been developed to circumvent the limitations of Boolean keyword search when dealing with large, unstructured ESI.  The idea is to develop the ability to search on an idea and retrieve responses, which are relevant to the concept of the idea.  With synonymy and polysemy effects, an idea can be represented by numerous loosely related terms.  Research in the following areas of concept search hold promise to increase search relevance and accuracy:

1. 1. Word Sense Disambiguation (WSD)[2]

WSD technologies help derive the actual meanings of the words, and their underlying concepts, rather than by simply matching character strings like keyword search technologies. Research has progressed steadily to the point where WSD systems achieve sufficiently high levels of accuracy on a variety of word types and ambiguities.

1. 2. Latent Semantic Analysis (LSA)[3]

LSA is a natural language processing technique that uses vectorial semantics (documents and queries are represented as vectors with in a linear algebra matrix) to analyze relationships between a set of documents and the terms they contain and how the terms are correlated.  After analyzing, LSA constructs a set of related concepts to the document and terms therein.  In other words, LSA searches documents for themes within the language usage and extracts the concepts, which are common to the documents.

1. 3. Local Co-Occurrence Statistics[4]

Local co-Occurrence Statistics is a technique that counts the number of times of pairs of term appear together (co-occur) within a given period, where a period is equal to a predetermined window of terms or sentences within a document or documents.

Each of the above techniques by themselves will not likely be a complete solution to the eDiscovery concept search challenge.  However, these methods combined and intelligently integrated together within an overarching concept search paradigm will be the start in the right direction.  As focus increases on conceptual search technologies, the winning products will likely have the best analytical technologies.

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[2] http://en.wikipedia.org/wiki/Word_Sense_Disambiguation

[3] http://en.wikipedia.org/wiki/Latent_semantic_analysis

[4] Bradford, R. B., Why LSI? Latent Semantic Indexing and Information Retrieval, White Paper, Content Analyst Company, LLC, 2008.

James D. Shook, Esq., CIPP EMC eDiscovery Expert

By James D. Shook, Esq.

In the cult-classic “Weekend At Bernie’s”[1], two young men try to fool others into believing that their murdered boss is still alive, despite strong evidence to the contrary.  Of course, trying to keep up appearances with a decaying body gets more and more difficult with time, but they persist.  Eventually, they are found out – but in true Hollywood fashion, all ends well.

Have we now reached the same point with end-user based eDiscovery?

End-user or Custodian-based eDiscovery is the practice of relying almost entirely upon end-user employees to identify, preserve and collect data for a specific case.[2] There are good reasons that end-user eDiscovery became popular – it’s relatively easy and quick to create and administer a process; very little (if any) technology needs to be understood, purchased or deployed; and, under the proper circumstances, it can be reasonably defensible.  In addition, the process of relying on end-users to preserve and collect relevant information has its roots in the old paper days of discovery, which means that many lawyers are very comfortable with the process.

However, end-user eDiscovery has seen a steady stream of detractors who have pointed out its many flaws.[3] More recently, the number of detractors seems to have grown, and the detractors now include the only group that really matters for eDiscovery – the courts.  Recent cases have indicated little patience for a process where legal abdicates its responsibility for eDiscovery to end-users, and many cases have resulted in sanctions.

Here are a few of the key risks inherent in relying on end-user custodians for eDiscovery:

Employee Self Interest.  Many litigation matters involve employees who may have a significant personal interest in hiding data, even if they are not a named party.  When these interested parties are asked to identify, preserve and collect data that is relevant to a case – data that they believe would be embarrassing or harmful to them – it can be a difficult process to defend.

It is unreasonable to allow a party’s interested employees to make the decision about the relevance of such documents, especially when those same employees have the ability to permanently delete unfavorable email from a party’s system…. Furthermore, employees are often reluctant to reveal their mistakes or misdeeds.[4]

Lack of Legal Knowledge. The proper scope of discovery – which dictates what information must be preserved and collected — can be difficult to determine, especially early in the case when preservation is required.

For example, in a routine breach of contract case, one would expect an employee to search for information about the parties arguing over whether they have lived up to their contractual obligations.  However, the true scope of discovery could be broader and include communications about the negotiation process, which would have occurred earlier.  Additionally, information through the years about the course of conduct of the parties, evidenced by emails, documents and other ESI, might also be relevant to establish if the terms of the agreement had bee modified.  Most end-users would not understand that this data would be appropriate for discovery:

Most non-lawyer employees, whether marketing consultants or high school deans, do not have enough knowledge of the applicable law to correctly recognize which documents are relevant to a lawsuit and which are not.[5]

Lack of Control.  Courts are also less comfortable when an attorney – who is both trained in the legal process and also directly subject to the power of the court — is not taking a lead role in the process.  The Pension Committee court found the process employed by certain defendants to be fatally flawed because it “places total reliance on the employee to search and select what that employee believed to be responsive records without any supervision from Counsel.”[6] Similarly, at least one other court found that a responding party violated its duty to preserve information because the defendant’s preservation practices “place operations-level employees in the position of deciding what information is relevant.”[7]

Other risks inherent to an end-user based process include:

• System Complexity:  How can custodians identify and preserve data if the system is complex and difficult to understand;
• Hold Risk:  If employees are preserving the data on their own, what is the risk that a device (flash drive, laptop, etc.) may fail, be destroyed, legitimately lost or mistakenly overwritten;
• Metadata Spoliation:  While not all cases are concerned with metadata, having employees preserve and self-collect ESI will, in most cases, result in changes to the metadata.

After cases like Pension Committee, Jones and Cache La Poudre[8] – is end-user based ediscovery as dead as Bernie?  As with other eDiscovery issues, there’s never been a requirement to be “perfect”[9], so the process must be evaluated on a sliding scale, risk-reward basis, and hopefully including the legal notion of proportionality in the analysis.  In matters where the employee is truly uninterested (no risk of embarrassment, diminished job prospects, sanctions, etc.) but not disinterested, the systems involved are not complex, the legal and discovery issues are straightforward and potential changes to metadata are unimportant, the process is probably acceptable, at least if there is strong legal oversight.  Short of having that perfect storm of factors?  There will be risk, and based on recent decisions, that risk is probably growing.  We may all need to face up to the fact that Uncle Bernie is gone for good.

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[2] . See, e.g. “Don’t Be An EDiscovery Ostrich”, J. Shook, available at http://www.kmworld.com/Articles/White-Paper/Article/Don%27t-Be-An-E-Discovery-Ostrich-60457.aspx (last accessed 8/4/10; registration may be required).

[3] See “Avoiding Faux eDiscovery”, J. Shook and A. Cohen, March 2008, available at http://andrewsblog.typepad.com/andrew/files/faux_e_discovery.pdf (last accessed 8/4/10).  For those of you who read footnotes – yes, I realize that I’m an author of both cited articles.  If you know of other articles on this same point, please send them to me and I will update!  Shook_jim@emc.com.

[4] Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010)

[5] Jones, supra.

[6] Pension Committee v. Banc of America Securities, LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), note 68.

[7] Adams v Dell, 621 F.Supp. 2d 1173, 1194 (D. Utah 2009).

[8] Cache La Poudre Feed, LLC v. Land O’’ Lakes Inc., 244 F.R.D. 614 (D. Colo. 2007).

[9] “Courts cannot and do not expect that any party can meet a standard of perfection.”  Pension Committee at 2.

Craig Ball, Esq.

“The Ball in Your Court”

Craig Ball, Esq., Talks eDiscovery, Law and Technology with EMC’s Heidi Maher, Esq., Principal eDiscovery

Join EMC for our upcoming Best Practice Webinar Series with eDiscovery Thought Leader and Author, Craig Ball, Esq.

Date: Wednesday, September 1, 2010
Time: 10:00 AM Pacific

Counselor Ball is a pioneering Trial Lawyer, Technologist and Computer Forensic Examiner. He has supervised, consulted on or served as Special Master in connection with some of the world’s largest electronic discovery projects and most prominent cases. Counselor Ball also greatly values his role as an instructor in computer forensics and electronic evidence to the Department of Justice and other law enforcement and security agencies.  Currently, Mr. Ball serves as a board member of Georgetown University Law School Advanced E-Discovery Institute and E-Discovery Academy and is an active Sedona Conference member.  In 2006, Counselor Ball was the recipient of the State Bar of Texas CTS lifetime Achievement Award for Law and Technology.

“Craig’s experience in eDiscovery, Law, and Technology is unparalled,” says J. David Morris, EMC SourceOne eDiscovery – Kazeon. “He is one of the few specialists, which brings a comprehensive perspective to eDiscovery.  We look forward to the webinar, as it is surely one not to miss.”

Register Today and Discover More

Discovery Lessons Learned in the first half of 2010

William E. O'Neil, Jr., Esq., eDiscovery expert

by William E. O’Neil, Jr, Esq.

It has been an interesting first half of the year for e-Discovery cases. The “Pension Committee” case “revisited” the Zubalake decisions and re-affirmed the duties for legal counsel when managing the Discovery & legal hold processes.  But, it still seems some are willing to take the risks of possible spoliation of evidence…I speak with clients across the country and have been asked the question more than once…”why should I care about Pension Committee…I am not in the 2^nd Circuit…”

Because…the standards established in in Zubalake, codified in the Federal Rule changes and “revisited” in “Pension Committee” are the standard for legal counsel. They are just explained in detail in “Pension Committee”.  Counsel needs to understand who the “key players” are, what ESI exists, where it resides and ensure the risk of spoliation is reasonably mitigated.  The lack of an e-Discovery strategy and a defensible process for legal hold management and preservation & collection is not a viable defense anymore…whether spoliation is negligent or intentional.

There was an interesting spoliation case decided in the 10^th Circuit.  In “ Medcorp”, the plaintiff allegedly destroyed ESI on 43 hard drives .  The fact that it was done was not in dispute, whether it was intentional, willful or negligent and what should be the consequences of the destruction was at issue.   The defendants requested the action be dismissed and the Plaintiffs argued minimal impact by having provided “some” of the ESI from another source.

The court applied the standards for determining sanctions for spoliation outlined in the “Pension Committee” decision…“[a]ppropriate sanctions should ‘(1) deter the parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore “the prejudiced party to the same position [it] would have been in absent the wrongful destruction of evidence by the opposing party.”

Here, the Court found the Plaintiff’s conduct was negligent rather than intentional. As such, the Court awarded the defendant’s attorney fees, expert witness fees and expenses related to litigating the spoliation issue…AND ordered a “negative inference” jury instruction…allowing the jury to infer the ESI on the 43 hard drives would be detrimental to the Plaintiff’s case.

This is a steep price for counsel to pay for not exercising proper oversight over discovery!

SEE: Medcorp., Inc. v. Pinpoint Technologies, Inc., et al 2010 WL 2500301 (D. Colo.).

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Does the Pension Committee Amended Opinion and Order Go Far Enough?

Matthew Nelson, Esq., EMC eDiscovery Expert

The Pension Committee Blog Series – Part Two – Backup Tapes

In my previous post, I discussed whether Footnote 99 of Judge Scheindlin’s Pension Committee Amended Opinion and Order went far enough in clarifying challenges related to backup tape preservation and search.  Footnote 99 is tricky because it both adds clarity and creates challenges at the same time.  The footnote states that there is not a duty to preserve backup tapes unless the tapes are the sole source of relevant information. Pension Committee of the Univ. of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al. at 42.

Unfortunately, this apparent bright line rule has some practical limitations because parties often do not know what information is contained on backup tapes since tapes are often outdated, voluminous, or otherwise not reasonably accessible due to undue burden or cost.  Therefore, destroying or overwriting backup tapes in the midst of litigation often results in the possibility of destroying the “sole source of relevant information” which could lead to spoliation sanctions.

To avoid the risk of sanctions, parties should strongly consider preserving the tapes in question if it is not clear whether the tapes are the sole source of relevant information.  Ideally, parties can stipulate during the Rule 26(f) meet and confer conference that at least some backup tapes with unknown content need not be preserved or searched and that agreement can be incorporated into the Rule 16(b) scheduling order.  If the parties are unwilling to stipulate regarding tape production, then a responding party could seek a protective order under Rule 26(b)(2)(B) by showing that their backup tapes are not reasonably accessible because of undue burden or cost.  However, does a successful showing of “undue burden or cost” alone mean a protective order will be granted to the responding party and that tape data will not need to be produced?

Join our discussion and make your opinion(s) known, as we probe the case’s lingering questions and foreboding implications in The Pension Committee Blog Series.

eDiscovery 2011:  Trends, Risks and Best Practices

Randolph A. Kahn, Esq., Kahn Consulting	James D. Shook, Esq., EMC eDiscovery expert and Attorney

Date: Wednesday, July 14, 2010
Time: 10:00 AM Pacific

EMC is proud to bring you this special webinar focused on how you should think about handling eDiscovery in 2011. Our esteemed guest speaker, Randolph A. Kahn, Esq., is well known in the legal/compliance circles and brings a wealth of knowledge on eDiscovery.

He will be discussing current trends in eDiscovery that will dictate how you perform eDiscovery in 2011, risks associated with current practices/tools/processes and best practices to consider adopting in order to get ahead of your eDiscovery woes. Joining him in this discussion will be our in-house attorney, James D. Shook, Esq., who too brings tremendous eDiscovery knowledge to the event.

Register Today, as seating is limited for this premium webinar.

All attendees will be entered into our drawing for a new iPad.

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Gain autonomy and receive improved eDiscovery guidance

Another Step Towards Information Governance

By Chuck Hollis, Global Marketing CTO EMC Corporation

VP -- Global Marketing CTO EMC Corporation

Sorry for falling behind the pace here, but there was a recent EMC product announcement that I found worthy of a deeper discussion.

EMC’s SourceOne group just announced their new File Intelligence product.  And, as organizations struggle to get their arms around unfettered information growth, we may just have a new and important tool in the arsenal.

You be the judge …

The Back Story

It’s obvious — information in corporate environments is growing like crazy.  Whether it lives in file systems, email boxes, repositories like SharePoint or Documentum — the forecast is rampant growth followed by more of the same.

And that’s where I think the discussion around information governance is so interesting.

A Familiar Theme

If you’re a long time follower of this blog, you probably remember a time when I was discussing this topic frequently.

My case went something like this:

• more and more of our business models are being built on information — in some ways, it’s the new “money” of our digital age.

• whereas many organizations know how to effectively manage money, far fewer are proficient at managing information in all of its forms.

• over time, more and more organizations will be forced to consider the topic of “information governance”, a cross-functional approach to balancing costs, risks and value of the organizational information portfolio.

• information governance teams — over time — will arguably be at least as important as, say, financial governance or other forms of organizational governance.

If you want to read more, I’ve dug out a few of the older posts here, here and here.

So, Where’s The Real Problem?

Most people when they think of information governance tend to think of transactional data: customer records, structured databases and the like.

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James D. Shook, Esq., CIPP EMC eDiscovery Expert

In today’s economic environment, companies deploying new technology have to show not just that they will be better and faster, but also just how much faster and better so that they can justify the expense.  Part of the buying process frequently involves gathering data on how much it costs to handle a business process in the current environment, how much can be saved with improvements, and establishing that the savings will justify the cost of the improvement (and frequently, how long it will take to do so).  Most companies refer to this process with the shorthand acronym of “ROI” or “return on investment”.  (In financial circles, ROI is actually a more complex analysis, but it’s still a good acronym for our purposes).

For companies that are looking to bring more of their eDiscovery process in-house, the ROI process can be difficult.  While we intuitively know that we can save money and cut risk with a leading eDiscovery solution, it can be tough to show that quantitatively because financial information is usually not readily available.  Even within the legal department, the cost of eDiscovery is frequently not well-known.  Often, time and money spent on eDiscovery issues is buried with other tasks in time entries from outside counsel; internal costs are generally not tracked at all; and payments to third-party processes are passed through (or marked up) by outside counsel and difficult to locate.

The benefits can also be difficult to calculate.  For example, many companies have poor eDiscovery processes (what we term “Faux eDiscovery“), where they wrongly or negligently ignore data sources and/or sound eDiscovery processes.  Faux eDiscovery can actually be very inexpensive — the real “cost” is in the risk with being caught and sanctioned.  But risk is difficult to quantify.  The result is that some companies trying to improve their eDiscovery processes may actually find a negative ROI (i.e. we only spend $10,000 per litigation now but it will cost us $50,000 to do it right) because they fail to identify or quantify the real ROI — their reduction in risk by handling eDiscovery properly.

If you are putting together an ROI analysis for bringing eDiscovery in-house, here are a few things to consider:

The general statistics available about eDiscovery costs are startling.  It’s well-established that having legal professionals review data – one of the later steps in the eDiscovery process — is expensive, with $18,750 per gigabyte a well-accepted number.  (Gartner, Reducing the Cost and Risk of EDiscovery in 2009, 1/9/2009 at 6).  Over the last several years, the average cost of discovery per case ranged from $621,880 to $2,993,567 (Litigation Cost Survey at 3).  And as noted earlier, Gartner advised an IT eDiscovery budget of $500,000 for a modestly sized case.    (Gartner, Reducing the Cost and Risk of EDiscovery, at 5).

Cutting through the noise, Gartner notes that many companies report a full return on their investment in an eDiscovery solution within 3 to 6 months — or within a single large case.  (Gartner, Marketscope for E-Discovery Software Product Vendors, 12/21/2009 at 2).  While these high-level facts alone may not be enough to convince anyone who requires a detailed ROI, they can help to set the stage for acceptance and also tend to strike a nerve with many C-level executives.

Undertake basic investigation on costs.  Talk to the legal department about how many “cases” they handle in each month (or year), being sure to include internal investigations and employment claims, regulatory inquiries and other matters where data is being preserved, collected and/or processed — not just “lawsuits”.  Ask them if they have information about amounts paid to outside service providers (perhaps through their law firm) for eDiscovery services.  Also check with the people who handle backups and email within the IT department — since different groups within legal may be asking them for help, they may actually have the best view of this work, and could even have hired an outside vendor to handle some eDiscovery-related work.  IT wil generally know whether the company has had to purchase tape processing equipment, additional storage or other non-standard equipment to help the lawyers with eDiscovery.

Check on soft-costs, too.  Most IT departments are only too ready and able to tell someone (anyone!) how much time they have devoted to eDiscovery tasks.  Frequently groups of 2-3 staffers can be assigned full-time or better for weeks or months on a medium or large case.  Without a chargeback model, legal might not even be aware of the massive undertaking to help them.

You may only be able to gather information on a few cases.  In that scenario, try to figure out whether it’s legitimate to extend the information out across the full volume of cases:  were these cases representative of what’s happening?  Do our cases tend to be similar or repeatable?  Do I have a good sampel?  When detailed information is not available — and usually it’s not — your goal is to get an understanding of the magnitude of the spend, and not necessarily the exact dollar amount.

There are a variety of ways in which you can begin to assess the savings that an eDiscovery solution will bring to the company.  In many cases, after purchasing a solution the incremental costs fo reach case will be almost nothing.  The better systems will enable custodian notification, search, preservation, collection and processing within the platform, so that investigators can efficiently handle these tasks.  This is really the purpose of the ROI analysis — case-by-case handling costs should be very small, because the expense is up-front in the purchase and deployment of the solution.

One area where the savings can be significant, but still substantial, is with “eyes-on” legal review.  An efficiently deployed system will help to minimize the amount of data collected, processed and eventually reviewed; but the review volumes can still be large.  And the hourly costs of review will be the same (although you can get some savings from de-duplication, clustering, email threading, etc.).  Still, we routinely see 50%+ savings in review based on the reduction in volume for efficient collection and culling.

You may decide that risk is too difficult or political to calculate as part of the ROI.  Or you may decide that it’s a necessary component that you must include.  Both approaches can be effective.

If you decide not to calculate a specific value for risk, you should still consider some risk analysis as part of your process, even as merely a “plus” factor to your overall analysis.  In doing this, take note of recent cases where companies have paid sanctions, had their case compromised and/or faced a backlash in the press (and potentially from shareholders).  You may not have a value for that risk, but the message will resonate with management.

If you do calculate risk, consider a conservative approach and factor in the probability of a sanction.  For example, you might decide that a severe sanction would compromise your ability to effectively defend (or prosecute) a case, and a larger case can be worth $5,000,000.  If you estimate a 10% chance of being sanctioned, you could take the resulting product ($5,000,000 x 10% = $500,000) as a basis for your risk value.  Remember that this risk amount would apply to each such case; so while the risk amount for a sanction on a smaller case might seem low (let’s say $20,000), it would be applied over a far larger number of cases.  It adds up!

Also remember that sanctions costs can exceed the entire estimated value of a case.  There have been many cases where shoddy eDiscovery processes have resulted in expensive remediation efforts — legal fees in determining what went wrong and how to fix it (and fending off motions for sanctions), repeating earlier work or being forced to use extraordinary efforts such as tape restoration.  So even a $500,000 case with eDiscovery problems could easily require more than the case value to try to “fix”.  (And don’t let anyone argue that you could always just write a check to settle the case.  Opposing counsel may have valued the case at a higher value than you, and once they realize that you are in trouble, it could be tough to negotiate a fair settlement).

Sometimes a simple model is better.  We have used extremely complex ROI models that were spot-on, but difficult to explain, and ultimately were ignored. We have also seen very simple models — “an eDiscovery solution will save us 50% in review costs, and last year review costs were $5M” — that have carried the day.  Hopefully, as you work on your ROI project, you’ll uncover the method that will best establish your case.  Until then, consider using a scenario-based approach (small case, medium case, large case), develop your facts for each one, and extrapolate the costs across the volumes that you expect to see each year.

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Matthew Nelson, Esq., EMC eDiscovery Expert

Does the Pension Committee Amended Opinion and Order Go Far Enough?

The Pension Committee Blog Series

On January 1, 2010, Judge Scheindlin re-established her ability to captivate legal audiences by authoring an opinion that struck fear into the hearts of many litigators and the parties they represent.

Dubbed “Zubulake Revisited: Six Years Later”, the Pension Committee decision serves as the “snooze button” for those practitioners who may have slept through the original eDiscovery “wake up call” sounded by Judge Scheindlin in her oft quoted Zubulake line of decisions.

Not surprisingly, opinions designed to offer clarity regarding a controversial subject such as electronic discovery, are destined to have both supporters and critics.  What is surprising, is that Judge Scheindlin responded to many critics quickly by issuing an amended Pension Committee Order and Opinion on January 15, 2010, to clear up language that could be characterized as confusing at best and inconsistent with previous case law at worst.

The Amended Order primarily clarifies language that could lead one to believe that a duty to preserve and possibly search backup tapes that relate to “key players” always exists.  The Amended Order clarifies the issue in a number of areas, but cautionary footnote number 99 arguably frames the issue best:

“I am not requiring that all backup tapes must be preserved.  Rather, if such tapes are the sole source of relevant information (e.g., the active files of key players are no longer available), then such backup tapes should be segregated and preserved.  When accessible data satisfies the requirement to search for and produce relevant information, there is no need to save or search backup tapes.” Pension Committee of the Univ. of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al. at 42.

Footnote 99 is a potential trap for the unwary because its apparent simplicity could lead some practitioners to take backup tape preservation less seriously.  Does Footnote 99 and the rest of the Amended Pension Committee Opinion and Order go far enough in clarifying the tricky backup tape issue that gives so many organizations headaches?

Join our discussion and make your opinion(s) known, as we probe the case’s lingering questions and foreboding implications in The Pension Committee Blog Series.