“eDiscovery and Information Governance is a dynamic and complex market. To be successful with eDiscovery projects and develop broader information governance strategies, teamwork across traditional roles is mandatory,” says James D. Shook, Esq., Director of eDiscovery and Compliance Practice at EMC. “This is our third year of sponsoring a day of thought leadership CLE sessions at LegalTech. With this year’s lineup we have brought together the best legal and technical minds to deliver best practice insights during sessions at Legal Tech in New York.”

EMC is sponsoring the following sessions for CLE credit on January 31st in Concourse E:

Harnessing Search Technology Effectively – 9:00 am – 10:00 am

Search has become a cornerstone of all legal technology, from legal research to early case assessment to document review. As search becomes more accessible, it also becomes more powerful, requiring experts in the technology to take full advantage of the available tools. There is still a gap though, as search methodologies used in different stages of a case are vastly different. Case teams need to assess what strategies must be used, engage experts in both subject matter and search technology, and be aware of potential pitfalls. This session will provide attendees an opportunity to hear from experts in the field, preparing them to tackle search more effectively in their own cases.

Speakers:

Charlie Kaupp, eDiscovery Consultant, Digital Strata, Inc.

Don C. McLaughlin, Jr., Esq., President and CEO, Falcon Discovery

Dan Brassil, Principal Consultant, H5

Kenneth Rashbaum –  Rashbaum Associates LLC

Overcoming the FUD To Bring eDiscovery In-House – 10:30 am – 11:30 am

Bringing more of the eDiscovery process in-house can result in substantial savings and better control over the process.  Yet many corporate IT and in-house counsel are afraid to assume the responsibility for the process.  Listen to a panel of experts discuss the most common concerns and how to overcome them to improve your process.

Speakers:

David Yerich, Esq., Director of eDiscovery at United HealthCare

Ian Campbell, iConect

James D. Shook, Esq., Director of Compliance and eDiscovery team EMC

Security, Hacking, and the Rise of Corporate CyberTerrorism: What every GC must Know! – 12:00 pm – 1:00 pm

 The benefits of corporate networks and the Internet, which deliver instant global communications, have accelerated the pace of business.  However, they have also created new vulnerabilities that cyber criminals, nation-states and “hacktivists” have learned to exploit.  Andrew Cohen, Esq., and Branden Williams were part of a team that responded to an advanced cyber attack on RSA in March of 2011.   In this session, you will learn the impact of advanced threats to corporate security, the impact of large scale intellectual property theft, and what every General Counsel must know to help protect corporate interests.  RSA, The Security Division of EMC, provides security, compliance and risk management solutions to organizations throughout the world including 90 percent of Fortune 500 companies.

Speakers:

Andrew Cohen, VP and Associate General Counsel – EMC

Branden Williams, CTO, CISSP, CISM – RSA, an EMC company

Heidi Maher, Esq., EMC – Principal, eDiscovery and Compliance Practice

The Case For Machine Coding in Document Review: A Judicial Perspective – 2:00 pm – 3:00 pm

The case for using machine coding and classification of documents in the eDiscovery review process has never been stronger.  As costs and ESI volumes continue to grow, machine coding promises faster, cheaper – and better.  Yet there remain many concerns about how to properly use these technologies, and the potential for risk when used incorrectly.  Hear what a prominent member of the Judiciary and members of the Bar have to say about the promising future – and their concerns for reaching it.

Speakers:

Honorable Andrew J. Peck, United States Magistrate Judge

Ed Larkin, Esq., Partner, Venable LLP

James D. Shook, Esq., Director of Compliance and eDiscovery team EMC

What it takes to have fun as a 30(b)6 witness – 3:15 pm – 4:15 pm

We have all heard horror stories, reviewed cases about organizations / defense teams who crashed and burned in court when they brought their ill-prepared, inarticulate, tech heads into the courtroom as “subject-matter-expert” (SME) / 30(b)6 witnesses in Federal Court on electronic records and eDiscovery matters.  Therefore, we have seen many examples of what not to do in those critical / do-or-die situations.  We at EMC thought it was about time someone showed you and explained what an example of an effective 30(b)6 witness looks like in addition, to what it took to prepare, what to do, what not to do and what was learned from the experience.  This session will employ a role-play learning method with a plaintiff as-well-as defense attorneys and our SME witness.

Speakers:

Thomas Reding, CRM

Heidi Maher, Esq.

Richard Vestuto, Esq., Vice President, Client Advisory Services, Merrill Corporation

Laws, Regulations, and the Cloud: The Confluence of eDiscovery with Pervasive Governance – 4:30 pm – 5:30 pm

Today, many organizations are looking to the Cloud for answers for controlling escalating information management costs.  However, organizations cannot just be focused on the perceived information technology infrastructure cost savings offered by the Cloud.  Organizations must be equally focused on laws, regulations and information governance issues.  If your organization has governance issues currently, then the Cloud will only exacerbate them.  Discover what the Cloud means to others and why it’s critical to place Pervasive Governance ahead of any Cloud initiative in your organization.

Speakers:

Fiona Schrader, Principle Product Manager Records Retention, Compliance, and Governance

Tom Reding, CRM, EMC – Principal eDiscovery and Compliance Practice

William O’Neil, Jr., Esq., EMC – Principal eDiscovery and Compliance Practice

RSVP and reserve your session seat @ EMC’s LegalTech Sessions

In this presentation, you will learn:

• How to Find the Goods and the Gold – How do we discover and collect content on the companies’ and and experts’ Twitter, Facebook, YouTube, and LinkedIn pages, or blogs?
• Issues with Privacy Laws and Privacy Walls – What privacy laws or regulations need to be considered when conducting discovery of social media content? How do they differ in different regions?
• The Importance of Social Media Policies – What type of policy and enforcement activities will help companies to take advantage of social media’s benefits while minimizing the risks it imposes on the business?

Discover the OnDemand Webinar

As the amount of electronically stored information (ESI) explodes in the enterprise, the eDiscovery process is at a critical point. The document review process is already the most expensive portion of the eDiscovery process, and the continuing explosion of data will make it impossible or prohibitively expensive to continue with the current human-based review method.

Technologies already exist to assist in the review process but the legal system is struggling to determine how and where these technologies can be used.

What you will learn:

Why the explosion of data and cost of review is creating a critical legal issue?

Caselaw and Federal Rules that relate to using technology to assist in document review?

An overview of the technologies that can make the document review process faster and less expensive and how those technologies can be reasonably deployed?

Register Now!

James D. Shook, Esq., EMC eDiscovery Expert

characterized by a shift to small form-factor, mobile devices and enhanced collaboration.  EMC’s own Jeetu Patel talked about and wrote an insightful blog post on this issue as part of the Momentum Conference at EMC World.

At its core, the Post-PC Era is about empowering individuals to be more efficient and productive by accessing content when they need it, from whatever device they wish to use, and enhancing the tools that enable them to get work done.  It’s also about collaboration with others, not just across the enterprise but with partners, customers and other parties that don’t live behind your corporate firewall.

That’s great for business – but what does the Post-PC Era mean for eDiscovery?  As a whole, the legal profession is still struggling mightily with eDiscovery in the current era.  And now we need to start thinking about a whole new paradigm of computing that creates new and unusual problems to solve?

Fortunately, while the Post-PC Era creates some tough new challenges, it will also bring some significant tools and benefits that should help us.  Let’s take a look at a few key areas.

Challenges

EDiscovery challenges presented by the Post-PC Era are many, but can be grouped into a few basic categories:

External ESI. A key concept of the Post-PC Era is that data is readily available at all times, and much of this data will be located outside the corporate firewall.  Much of this data will also be under the de facto control of third parties –Salesforce.com, Facebook, Twitter and others spring quickly to mind.  Even so, it will still be your responsibility for compliance and eDiscovery.  You may even decide to encrypt this eternal data at the client level for security purposes, before it is transmitted to the provider, making it far more complex to search.  Understanding how this data can be accessed and collected – both from a contractual standpoint and a technology perspective – will be critical.

Rich Media.  Although text information in its various forms, both old and new, remains important to eDiscovery, rich media (video, audio, etc.) becomes more prevalent every day.  But video and audio files tend to be large and difficult to search.  How can you tell if a 5-minute video is potentially relevant to your case?  Even if you had the ability to extract and convert the audio portion of that file to readable text, that’s probably not sufficient to determine relevance.  Will someone need to actually watch each video?  And if so, what do they look and listen for to determine relevance?  Worse still — if it costs about $20,000 for legal review of a gigabyte of data, how much will it cost to review a terabyte of video?

Esoteric ESI.  I actually lump several challenges into the “esoteric” category.  Let’s start with collaborative technologies — powerful tools that enable groups to share and work on the same data, in real time or asynchronously, enabling them to complete projects more quickly.  But these tools generate content that tends to blur the issues of authorship and ownership.  For example, if eight people collaborated on a document – three of which were partners and two were customers – who can be “charged” with the content of that document, and who owns it?  Could you use information against a party without proving that they wrote the specific section of the document, and how would you do that?   What would you need to authenticate such a document at trial?

The Blurring Of Personal and Work Lives. The line between the workday and one’s “post-work” or personal life is blurred (or for many, obliterated).  Largely because of that blur, many sites that were tied to our private lives (e.g. Facebook, Twitter) are beginning to include work-related repositories, and vice-versa (e.g. LinkedIn).  So what happens with data that I create in my personal Facebook account, when that data is directed to a work colleague and relates to a work issue?  What about private information that I generate on LinkedIn, which I normally use for work-related information?  Does it matter whether I’m posting during the “work day” or after work (whatever time that might be)?  We already know that using these tools after hours can cause issues with our non-exempt employees, who must be paid overtime if they are performing work tasks on off hours.  How can you monitor for those issues when those employees have so many ways and locations to do work when they choose?

Data Everywhere. Another Post-PC Era challenge is that data can (and is) located almost anywhere – and everywhere.  In his blog, Mr. Patel noted that knowledge workers have between three to seven devices; do you need to check all of those individually for ESI in an eDiscovery case?  What’s the best practice to collect data from a Blackberry, an iPad, a personal cell phone (with mixed personal/work content) and a laptop?  Good compliance practices may help to limit data that is solely located on a mobile device (i.e. it provides a window into the Cloud) but in most cases, data can be found everywhere.

The Benefits

But don’t despair!  The Post-PC Era offers some opportunities and leverage that we did not have before when handling eDiscovery issues.  Here are a few that will help:

Big data. The notion of “big data” is also driving the creation of more powerful and more accessible tools for intelligent, machine review and classification of data.  We’re not quite sure how these tools will be deployed to assist in the eDiscovery process, but they hold a great deal of promise.  Just think about this:  Instead of sending your 10 TB of collected data for review by humans, which would take months and cost millions – how much traction can you gain if that data can be crunched and classified by intelligent machines in a matter of hours!

The Cloud. Done correctly, the Cloud can be an incredible benefit for eDiscovery.  Having many mobile devices access common information stores implies that the information must be centrally located to provide access.  Companies that build or use infrastructure to maintain this information in a Cloud infrastructure will be able to better manage and secure their information.  Much as an email archive can make eDiscovery of email very simple, a good cloud infrastructure can make it easy to discover against large repositories of unstructured data.

Ubiquitous Connectivity. Frequently, eDiscovery is difficult because searching remote devices for content requires either physical proximity to the device, or using very slow connections.  (Think about how you would pull photos from an iPhone, or collect from laptops for employees working in the field or small offices using low-speed DSL; etc.).  Fortunately, another implication of the Post-PC Era is that the devices we use will have connectivity, and the speed and security of those connections will continue to increase.  This should make identification and collection of data on these devices, from a remote location, much easier to handle.

Federated Tools. A final implication of the Post-PC Era is that companies need to have a way to federate search and access to content.  Most businesses will need a method to look through company data stores to find records or to re-use content, so federated technology (one search spreading to all of the relevant repositories) is a must.  Since this is essentially a business requirement, there’s a good opportunity to build this technology directly into solutions – which can then be easily re-used for eDiscovery and Compliance purposes.

Conclusion

As usual, the key to cracking the eDiscovery challenges, in the Post-PC Era or otherwise, is to understand the technologies and then apply “legal common sense” (no – it’s not an oxymoron!) to the processes.  That will require legal to work well with IT, so make sure that your eDiscovery team is already cross-functional.

Discover More

James D. Shook, Esq., EMC eDiscovery expert

Published in DIGITAL DISCOVERY & E-EVIDENCE

Among lawyers, the word metadata is likely to conjure confusion, looks of disbelief, fear and–in rarer cases–a knowing smile. Metadata issues present some of the more vexing technical issues for litigation and e-discovery personnel. With metadata back squarely in the news from Judge Scheindlin’s opinion in National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 10 Civ. 3488, (S.D.N.Y., 2/3/11), which held that certain metadata must be included in productions under the Freedom of Information Act, it seems like a good time to revisit the issues.

Read the Full Article: Metadata is Closer Than It Appears

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

Part III

Faster, better, cheaper was the mantra at NASA as it set goals to improve quality, efficiency and better manage costs after several setbacks…it was a way to set goals and measure success from a “top down” approach of looking at it from all perspectives and seeking to better quantify risks & rewards in various programs…expect quality, but demand efficiency!!!

The Legal Profile:

An often overlooked link between the IT footprint and the FRCP is the notion of “source  mapping” or “mapping of sources” for the Rule 26f “Meet & Confer Conference” where the parties need to discuss & disclose potentially responsive ESI by “category or type”…if the organization understands what systems and repositories contain potentially responsive information, that ESI can be managed appropriately for the matter at hand and as an indicator as a source for future eDiscovery…most organizations have certain types of legal & regulatory challenges like employment, Intellectual property or other types of litigation and key regulatory issues which form a pattern of a “Profile”.

If these systems and applications are identified or “mapped” a categorization & classification of systems, data & ESI can be developed and used as an early assessment tool and a strategic tool to ensure proper preservation of ESI and notification of potential custodians.

Put another way, employment cases and Intellectual Property cases may share some common sources of ESI (email, file shares, collaborative spaces), but typically also have systems & repositories for business information related to the particular business function that is subject of the legal inquiry.  It is rare that all systems or applications would contain responsive ESI.

Here is an opportunity to move away from the “Hold All” order and develop a defensible response protocol for legal and regulatory matters and target responsive ESI and manage the non-responsive ESI according to standard business practices.  If you can’t find the handful of relevant ESI in the terabytes of data, then “retain all” may look like the “best option” in a bad situation.

Here is some hidden ROI:

Once Responsive ESI is identified, preserved & collected, it is a reasonable assumption that the non-responsive ESI is not subject to legal hold…but subject to ordinary lifecycle management (RM) or part of the organization’s GRC efforts within a sound Information Governance Program and only retained based on categorization & classification of information.

Leverage the opportunity to do some “house cleaing”…gain file visibility and perform file remediation…dispose of ESI that has outlived its useful life in a defensible, scalable manner.

Understanding all these different elements of the People, Process & Technology in your eDiscovery process is the key to controlling costs & mitigating risks.

If you would like to discuss this topic further…please give me a call or send an email @ ted.oneil at emc.com.

Discover More

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

Part II

Faster, better, cheaper was the mantra at NASA as it set goals to improve quality, efficiency and better manage costs after several setbacks…it was a way to set goals and measure success from a “top down” approach of looking at it from all perspectives and seeking to better quantify risks & rewards in various programs…expect quality, but demand efficiency!!!

Benchmarking: People, Process & Technology

Identifying all the key players in the legal & regulatory processes that request ESI (consumers) and why they need it…then find all the key players and stakeholders that identify, preserve & collect ESI and the tools currently in use to help to understand the processes and the level of effort associated with eDiscovery from an internal resource perspective as well as from the third party cost perspective…and to understand risk.

Each organization is unique…understanding who touches the process is critical…knowing this early saves resources in the long run!!

Most organizations face a mix of needs for ESI:

• Internal Audits & Board driven actions
• Regulatory Investigations
• State & Federal Litigation

Consumers of ESI may include:

• Human Resources
• Litigation Counsel
• Regulatory Affairs
• General Counsel
• Internal Audit

Personnel involved in Preservation & Collection of ESI may include:

• Security
• IT
• 3^rd Parties / Service Providers
• Custodians
• Legal Service Providers
• Outside Counsel
• Internal Counsel
• Human Resources

Understanding all these different elements of the People, Process & Technology in your eDiscovery process is the key to controlling costs & mitigating risks.

If you would like to discuss this topic further…please give me a call or send an email @ ted.oneil at emc.com.

Discover More

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

Part I

Faster, better, cheaper was the mantra at NASA as it set goals to improve quality, efficiency and better manage costs after several setbacks…it was a way to set goals and measure success from a “top down” approach of looking at it from all perspectives and seeking to better quantify risks & rewards in various programs…expect quality, but demand efficiency!!!

Faster, better, cheaper was clear theme from LegalTech 2011…good Information Governance makes good business sense!

The hidden Return On Investment in eDiscovery lies in understanding the entire spend…not just the obvious third party costs and understanding and quantifying risks in the current process.

I have been working with several clients in developing business cases and ROI models to frame the various challenges and drive strategic initiatives.  The key to success is having developed a “base-line” understanding of the current process & identifying all key players.  The nature of eDiscovery tends to affect IT, RM, the Business and of course, Legal.

As “beauty is in the eyes of the beholder”…all parts the organization affected by the process sees this from a different perspective should be included in the dialogue.

Key drivers in these initiatives is cost take-out and optimization of eDiscovery & regulatory compliance processes.  Understanding the current state of the process, people involved, key processes & technology to get visibility & control of the process…this is typically an evolution over time and requires a continued commitment to total quality management.

Best Practices that cut across the broad theme of Faster, better, cheaper:

• Identify all the “stakeholders” & process owners
• Identify all “Consumers” of ESI
• Define cost of current process
• Understand the organization’s “Legal Profile”
• Form cross-functional team to drive change

Understanding all these different elements of the People, Process & Technology in your eDiscovery process is the key to controlling costs & mitigating risks.

If you would like to discuss this topic further…please give me a call or send an email @ ted.oneil at emc.com.

Discover More

Thursday, June 9, 2011 – 11:00 AM EST

In this webinar you will learn:

Speaker: James D. Shook, Esq., CIPP

Director, E-Discovery and Compliance Practice
EMC Corporation

Jim Shook is a recognized authority on legal discovery and compliance issues related to electronic informa tion. On a regular basis, Mr. Shook discusses e-discovery, compliance, and privacy issues with companies throughout the world, sharing best practices, discussing challenges, and working to develop and deploy real-world solutions to these problems. He has also delivered expert consulting services in the compliance area, most recently in e-mail policy management and e-discovery preparedness.

Speaker: Brendan Schulman

eDiscovery Counsel
Kramer Levin

Mr. Schulman serves as Kramer Levin’s E-Discovery Counsel. In that capacity, he advises clients on the preservation, collection, processing, review and production of electronic information, with an emphasis on early case assessment and other cost-effective and defensible strategies. He also counsels attorneys and clients on effective discovery strategies and advocacy, with a view to emerging developments in this rapidly-evolving field. Mr. Schulman lectures and writes on electronic discovery and legal technology topics and is a member of The Sedona Conference Working Group 1 on Electronic Document Retention and Production and the American Bar Association E-Discovery and Digital Evidence Committee.

Moderator: Jeremy Evans

Of Counsel, Litigation Department
Paul Hastings

Jeremy Evans is an of counsel in the Litigation practice at Paul Hastings. Mr. Evans focuses his practice on civil and criminal antitrust matters, government and internal investigations, and complex commercial litigation cases.

Register Now!