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

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

Ed Larkin, Esq., Partner, Venable LLP

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

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

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

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

“Although the FRCP amendments were enacted back in late 2006, their practical application is an evolving process for business, information technology, and legal professionals, as both  Discovery technologies and case law mature.”, notes David Yerich, Esq., Director of eDiscovery at Minneapolis based UnitedHealth Group and Advisory Board Member of CEDS.  “At its core eDiscovery is about technology, and technology is constantly evolving.  Taking a wait-and-see strategy, for the proverbial eDiscovery dust to settle, before addressing an organization’s litigation needs around electronically stored information (ESI), isn’t a good risk reduction strategy.  Judicial eDiscovery expectations around handling the ever changing types of ESI continue to increase. So by remaining static and not moving your organization forward, you are actually falling behind.”  Yerich notes that LegalTech is a great event to explore and learn about these risks, and potential ways to help minimize them.  “The LegalTech event offers a huge number of opportunities to discuss emerging legal challenges, showcase new technologies, and share best practices, so frontline business managers can develop concrete plans to help reduce litigation exposure in managing ESI.  I’m looking forward to attending.”

The LegalTech Session:

Overcoming the FUD to Bring More e-Discovery 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, UnitedHealth Group

Ian Campbell, Co-founder and Chief Business Development Officer, iCONECT Development, LLC

James D. Shook, Esq., Director eDiscovery and Compliance Practice,  EMC Corp.

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

“The day-to-day use of cyber risk intelligence is no longer just for government agencies – it’s a required competency for corporate survival,” said Art Coviello, Executive Chairman of RSA.  “The tempo and serious nature of recent attacks calls for urgent and bold countermeasures that position organizations not only to detect advanced threats, but also to predict how attacks may occur so they can take steps to help mitigate risk and impact. Combating advanced threats requires a new security mindset and vastly improved practices for gathering, sharing and acting on cyber risk intelligence.”

The LegalTech Session:

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 the Six Steps 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

Register for the LegalTech CLE Session with Andrew Cohen and Branden Williams

RSA PressRelease ——

“Leading Chief Security Officers Outline Roadmap to Combat Advanced Threats”

RSA Sponsored CISO Panel Highlights Intelligence-Driven Security
as Strategic Game Changer in Battling Cyber Foes

BEDFORD, MA — January 17, 2012 —RSA, The Security Division of EMC (NYSE:EMC), released new insights from a group of the world’s leading chief security officers, designed to help corporations and governments dramatically improve visibility into advanced threats ranging from industrial espionage and disruption of business and financial operations to sabotage of corporate infrastructure.

The research report is the ninth in a series from the Security for Business Innovation Council (SBIC), and provides both business and technology executives with specific recommendations on how to develop an intelligence-driven approach to counter advanced threats.  Based on the real-world experiences of 17 top global information security leaders, the report provides a playbook for enterprise security executives who wish to leverage the universe of intelligence data available to help detect, predict and mitigate cyber attacks.

“The day-to-day use of cyber risk intelligence is no longer just for government agencies – it’s a required competency for corporate survival,” said Art Coviello, Executive Chairman of RSA.  “The tempo and serious nature of recent attacks calls for urgent and bold countermeasures that position organizations not only to detect advanced threats, but also to predict how attacks may occur so they can take steps to help mitigate risk and impact. Combating advanced threats requires a new security mindset and vastly improved practices for gathering, sharing and acting on cyber risk intelligence.”

Intelligence-Driven Security: a New Defense Doctrine for Advanced Threats

The SBIC is a group of top security leaders from Global 1000 enterprises convened by RSA to discuss top-of-mind security concerns and opportunities.  In the group’s latest report, “Getting Ahead of Advanced Threats: Achieving Intelligence-Driven Information Security,” the Council advocates for a new defense doctrine for combating advanced threats.  Called “intelligence-driven information security,” this collaborative, big data approach includes:

·         The consistent collection of reliable and actionable cyber-risk data from a range of government, industry, commercial, and internal sources to gain a more complete understanding of risks and potential exposures.
·         Ongoing research on prospective cyber adversaries to develop knowledge of attack motivations, favored techniques and known activities.
·         The growth of new skills within the information security team focused on the production of intelligence.
·         A process for efficient analysis, fusion, and management of cyber-risk data from multiple sources to develop actionable intelligence.
·         Full visibility into actual conditions within IT environments, including insight that can identify normal versus abnormal system and end user behavior.
·         Informed risk decisions and defensive strategies based on comprehensive knowledge of the threats and the organization’s own security posture.
·         Best practices to share useful threat information such as attack indicators with other organizations.

“It can be hard to digest having to develop a multi-year plan to learn who your adversaries are and how they’re going to steal from you,” said Tim McKnight, Vice President and Chief Information Security Officer, Northrop Grumman.  “Quarter-by-quarter, you may not see any losses.  It could be years until you see the losses – when all of a sudden, out of the blue, a company in another part of the world becomes the leader in your space, having subsidized itself with your R&D investments.”

The Council’s new report lays out a six-step roadmap to achieving intelligence-driven information security:

·         Step 1: Start with the Basics
Inventory strategic assets, strengthen incident-response processes and perform comprehensive risk assessments.
·         Step 2. Make the Case
Communicate the benefits of an intelligence-driven security program to executive management and key stakeholders.  Identifying “quick wins” to prove value out of the gate is essential for gaining broad organizational support, including funding.
·         Step 3. Find the Right People
Look for professionals who can blend technical security acumen with analytical thinking and relationship-building skills.
·         Step 4. Build Sources
Determine what data from external or internal sources would help detect, predict or lessen the chances for a targeted attack; evaluate sources on an ongoing basis.
·         Step 5: Define a Process
Codify a standardized methodology to produce actionable intelligence, ensure an appropriate and timely response and develop attack countermeasures.
·         Step 6: Implement Automation
Find opportunities to automate the analysis and management of large volumes of data from multiple sources.

PDF copies of “Getting Ahead of Advanced Threats: Achieving Intelligence-driven Information Security,” are available for download from the Security for Business Innovation Council website at http://www.RSA.com/securityforinnovation.

About the Security for Business Innovation Council

The Security for Business Innovation Council is a group of Global 1000 security executives committed to advancing information security worldwide by sharing their diverse professional experiences and insights.

Council members contributing to this report include:

·         Marene N. Allison, Worldwide Vice President of Information Security, Johnson & Johnson
·         Anish Bhimani, Chief Information Risk Officer, JPMorgan Chase
·         William Boni, Vice President and Chief Information Security Officer, Corporate Information Security, T-Mobile USA
·         Roland Cloutier, Vice President, Chief Security Officer, Automatic Data Processing, Inc.
·         Dave Cullinane, Chief Information Security Officer and Vice President, Global Fraud, Risk & Security, eBay
·         Dr. Martijn Dekker, Senior Vice President, Chief Information Security Officer, ABN Amro
·         Professor Paul Dorey, Founder and Director, CSO Confidential and Former Chief Information Security Officer, BP
·         Renee Guttmann, Chief Information Security Officer, The Coca-Cola Company
·         David Kent, Vice President, Global Risk and Business Resources, Genzyme
·         Petri Kuivala, Chief Information Security Officer, Nokia
·         Dave Martin, Chief Security Officer, EMC Corporation
·         Timothy McKnight, Vice President and Chief Information Security Officer, Northrop Grumman
·         Felix Mohan, Senior Vice President and Chief Information Security Officer, Airtel
·         Robert Rodger, Group Head of Infrastructure Security, HSBC Holdings Plc.
·         Ralph Salomon, Vice President, IT Security & Risk Office, Global IT, SAP AG
·         Vishal Salvi, Chief Information Security Officer and Senior Vice President, HDFC Bank Limited

This report also includes expertise from guest contributor William Pelgrin, President & CEO, Center for Internet Security; Chair, Multi-State Information Sharing and Analysis Center (MS-ISAC); and Chair, National Council of ISACs (NCI).

About RSA

RSA, The Security Division of EMC, is the premier provider of security, risk and compliance management solutions for business acceleration. RSA helps the world’s leading organizations solve their most complex and sensitive security challenges. These challenges include managing organizational risk, safeguarding mobile access and collaboration, proving compliance and securing virtual and cloud environments.
Combining business-critical controls in identity assurance, encryption & key management, SIEM, Data Loss Prevention, Continuous Network Monitoring, and Fraud Protection with industry leading eGRC capabilities and robust consulting services, RSA brings visibility and trust to millions of user identities, the transactions that they perform and the data that is generated. For more information, please visit www.RSA.com and www.EMC.com.

About EMC

EMC Corporation (NYSE: EMC) is the world’s leading developer and provider of information infrastructure technology and solutions that enable organizations of all sizes to transform the way they compete and create value from their information.  Information about EMC’s products and services can be found at www.EMC.com.

# # #
RSA and EMC are either registered trademarks or trademarks of EMC Corporation in the United States and/or other countries.  All other company and product names may be trademarks of their respective owners.

“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

Thursday, September 15, 2011

Speakers: Edwin M. Larkin, Esq. – Partner Venable, LLP  & James D. Shook, Esq. – Director of the eDiscovery and Compliance Team at EMC Corp.

Networking & breakfast:  8:00 – 8:30 a.m. EDT
Program: 8:30 – 10:00 a.m. EDT

In litigation matters, you are responsible for any relevant data that is in your “care, custody or control.” But what happens when that data is stored in “The Cloud”? Traditional notions of ownership and control no longer apply in the same manner as they have for physical goods, such as paper documents. What happens to your data – and your obligation to a court or regulator – when that provider will no longer access “your” data because they have terminated your account for non-payment or alleged mis-use? What if your provider needs 3 weeks to collect your data, but you have to respond within 3 days?

Join our panelists for a thought-provoking discussion in which we will discuss:

·         the basic framework of regulatory and compliance issues that you need to know when you entrust your data with a third party;

·         questions to ask and contract terms to consider when you are entering into a “cloud” agreement; and

·         different types of cloud models to consider that might fit your needs.

Location:

Vanderbilt Suites
Metlife Building
200 Park Ave. at E 45th St.
New York, NY 10166

Please email NYEvents@Venable.com by August 25 to register for this event.

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!

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

James D. Shook, Esq., EMC eDiscovery Expert

The review of documents is one of the most expensive components of the eDiscovery process.  Cost estimates range to 70% of the overall cost of eDiscovery, with many stories where millions of dollars were spent on the review process in a single matter.  It’s also been a people-focused, linear process, one that tends to be somewhat inflexible when 20 million documents are left to be reviewed before a court-imposed deadline that is only 10 days away.

So it’s no surprise that the idea of having a machine handle documents review is taking the legal community by storm.  Machine review promises to be faster, less expensive and more predictable than human review.  Machine review projects can be planned very specifically since the review rate is a known variable (which doesn’t get sick, take too many breaks, go on a vacation or jump to a newer project with higher pay) and imminent deadlines can be met merely by adding more processing power.

There’s no question that machine review is a needed tool.  The growth of electronically stored information (ESI) is not slowing, and we are rapidly reaching the point where there simply will not be enough people with legal training to review documents in a case.  After all, it’s just simple math.  If we assume that a case in the future involves 20 TB of data (an enormous case today but perhaps more common in the next 5-10 years), there would be about 1.5 billion pages of information to review.  If someone can review even a page per minute, and we throw 1000 people at the problem, the project would take 1000 years.  Do you have 10,000 people available?  Then it will only take you 100 years to get this work done – will that meet the court-imposed deadlines?

Clearly, something has to give.  Fortunately, we have a number of technologies and processes that can assist.

Technologies.  There are a number of machine review technologies that are currently available.  They fall roughly into just a few categories:

Auto or Predictive Coding.  Automatic coding technologies are very promising.  Using a baseline of documents – which today may exist of a core set of documents that have been carefully reviewed by humans – the technology finds other documents that are similar in important ways.  This technology might be used to find all documents that are privileged, or all documents that might be responsive to a specific issue, such as documents that support a claim that a contract was breached.

Grouping or clustering.  Recognizing patterns, clustering technologies review a corpus of documents and puts individual documents into categories according to different issues or clustering terms.  This technology can be used to speed review by clustering common documents to speed another stage of review by humans, and can even serve to review documents for relevancy to certain issues.

Advanced Search.  While “search” may seem like a dated technology compared to machine review, creative counsel are using it in new and important ways.  Mindful of Judge Grimm’s admonition in Victor Stanley v. Creative Pipe Inc., 250 FRD 251 (D. Md. May 29, 200) that attorneys could use some technical and scientific assistance in developing search terms, many are doing just that.  A well-designed, statistically supported search, with sampling to confirm its validity, remains a powerful tool.

De-Duplication and Near De-Duplication.  A lot of data in the enterprise is duplicative.  Every saved email generally results in at least a few copies, and everyone seems to save the same documents to laptops, desktops and fileshares.  Near duplicates –  documents where just a few words have changed – are also prevalent, but unless they reside in a document management or versioning system, they can be very difficult to locate.  With hash algorithms, locating duplicate files is a straightforward activity.  Near-dupe technologies are not yet as prevalent, but also very promising in reducing or at least categorizing this information for easier review, whether by humans or machines in a multi-step process.

Current Uses. While auto coding is promising, I would be surprised if it became the answer to this problem.  Instead, auto coding and other methods of machine review are more likely to become important pieces of an overall answer.  There are some real world limitations that may continue to limit the use of these technologies, which we will look at in the context of some current use cases.

Privilege.  Protecting the attorney-client privilege through review can be an enormous cost.  Even with the modifications to Rule 502 of the Federal Rules of Evidence, which grants parties some leniency in protecting attorney-client privilege if they mistakenly produce privileged documents, there remains a lot of uncertainty.  One of the central tenets in recovering privileged documents – a “clawback” – is that the documents slipped through despite a reasonable and diligent review process.  Today, whether any form of machine review is a diligent process remains an open question.  And if the other party objects, what type of evidence would convince a court that the process is suitably diligent?  Would a Daubert hearing be necessary – and if so, how many attorneys could effectively conduct one on this issue?  Further, there’s always the concern that even privileged documents that are retrieved do not “unring the bell” – meaning that the other party has seen the document and you can’t wipe their memory (yet….).  That’s a concern that clients also need to be made aware of before using technologies as part of the review process.

Relevance.  Another use case for the technology is in locating documents that are similar to an initial set with relevance to issues in the case.  A small initial set of documents that are relevant to a specific issue in the case would be fed to the software, which would then find all “similar” documents.  These could all be produced in a set as being responsive to a particular issue in the case.  Again, there’s nothing in the rules that specifically argues for or against this type of review.

A strong argument in favor of machine relevancy review is that human review – the current standard – is not infallible, and recent surveys and projects have shown that machine review may well be more accurate.  However, this is not yet an established “fact”.  Further, each vendor who provides a tool for machine review would have a different approach to the problem, and validation of any specific technology would need to take this issue into account.  So far there’s no method for such a validation process.

The Future.  So what will happen?  A few things seem clear.  First, there’s just no way that our human-based, linear review process can last much longer.  The rate of data growth continues to accelerate, so the fact that human review is expensive will soon be joined by an even more severe limitation – in large cases, there may simply not be enough time available to review the documents.  Second, machine review is catching on, particularly in cases where both parties are motivated and interested in deploying these technologies.  Third, some guidance from the bench will be helpful in making lawyers – and clients – more comfortable in using a machine review process.  There are at least a few judges who are interested in having a case before them so that they can do just that.  (See Karl Schieneman’s ESI Bytes Podcast “Will Judges Think It Is Okay To Use Clustering and Suggestive coding Tools”, available at www.esibytes.com).  Finally, there are some bright and motivated people that have been working on this issue for years (See the Trec Legal Track; the eDiscovery Institute, www.ediscoveryinstitute.org).  While it may be a gradual process for complete acceptance, some knowledge of these tools should already be in your eDiscovery toolbox.

Discover More