Intermountain ediscovery Conference 2012

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1 Intermountain ediscovery Conference 2012 From Technology Assisted Review to Twi6er: What Clients, Law Firms, and Vendors Need to Know David Horrigan, 451 Research

2 451 Research Global research analyst firm A division of The 451 Group 451 founded in 1999, 200+ staff Daily qualitaive & quanitaive research 1,000+ clients served PublicaIons, analyst advice, global events

3 David Horrigan Analyst, ediscovery and InformaIon Governance, at 451 Research ALorney licensed in Washington, D.C. Prior experience as in- house counsel on technology and media issues and as a reporter for The Law Journal and Law Technology News

4 Today s PresentaIon An Overview of ediscovery Legal and Business Developments Technological Developments Technology Assisted Review Keyword Chaos PredicIve Coding, TAR, CAR, or MAR? Social Media and ediscovery The Law of Facebook The Law of TwiLer

5 An Overview of ediscovery

6 An Overview of ediscovery DefiniIon of Discovery The pre- trial devices that can be used by one party to obtain facts and about the case from another party in order to assist the party s for trial. See also DeposiIon; Fishing trip or expedi=on Source: Black s Law DicIonary (6th Ed.)

7 An Overview of ediscovery efile edate ecommerce ediscovery

8 An Overview of ediscovery 2006 Amendments Federal Rules of Civil Procedure Amended Rules 16, 26, 33, 34, 37, and 45 Introduced Electronically Stored Informa=on (ESI) Important Provisions: Ini=al Disclosures, Rule 26(a)(1)(B) Meet and Confer, Rule 26(f) Form of Produc=on, Rule 34(b) Reasonably Accessible, Undue Burden Cost, Rule 26(b)(2) Clawback Light, Rule 26(b)(5)(b) Safe Harbor for Good Faith, Rou=ne Destruc=on, Rule 37(f)

9 An Overview of ediscovery 2008 Enactment Federal Rule of Evidence 502 Limits Waivers of A[orney- Client Privilege and Work Product Doctrine Rule 502(b)- No Waiver for Uninten=onal Disclosure if: Reasonable a[empts to prevent disclosure, Rule 502(b)(2) AND Prompt, reasonable steps to rec=fy error, Rule 502(b)(3)

10 An Overview of ediscovery Electronic Discovery Reference Model (EDRM)

11 An Overview of ediscovery Informa=on Governance Reference Model (IGRM)

12 An Overview of ediscovery Sample ediscovery Costs $17,183 in an Intellectual Property Case $27.1 Million in a Product Liability Case $1.8 Million Median Cost $20,000 per GB in About a Third of Cases $900,000 per GB in One Case (Less than a DVD) Source: Rand CorporaIon, 2012

13 An Overview of ediscovery Breakdown of ediscovery Costs Review 73% Processing 19% CollecIon 8% Source: Rand CorporaIon, 2012

14 Technology Assisted Review

15 Technology Assisted Review An Exercise in Keyword Chaos

16 Technology Assisted Review

17 Technology Assisted Review

18 Technology Assisted Review

19 Technology Assisted Review

20 Technology Assisted Review

21 Technology Assisted Review

22 Technology Assisted Review

23 Technology Assisted Review Just what is: Technology Assisted Review Predic=ve Coding Computer Assisted Review Machine Assisted Review???

24 Technology Assisted Review The HAL 2001 Nightmare?

25 Technology Assisted Review Every person who uses uses coding, even if they do not realize it. The "spam filter" is an example of coding. - - U.S. Magistrate Judge Andrew Peck in Da Silva Moore v. Publicis Groupe

26 Technology Assisted Review Predic've Coding: The use of an i.e., learning process in which lawyers and technologists train sosware using computer algorithms to classify legal documents.

27 Technology Assisted Review Defining Some Legal Concepts Responsiveness: Does the document respond to the opposing party s request? Basically, is it relevant? NR is slang for non- responsive. Legal Hold: A procedure to freeze everything to prevent the destrucion or spoliaion of responsive documents. Privileged: A term used loosely to refer to a document subject to either the a0orney- client privilege or the work product doctrine. Privilege Log: A detailed list provided to opposing counsel describing documents withheld for privilege. Clawback: A beauiful thing. A provision in the Federal Rules lelng you get back privileged documents you ve produced by mistake.

28 Technology Assisted Review Defining Some Technical Concepts Recall: The fracion of relevant documents idenified during a review. Basically, did the review find all the relevant documents? Precision: The fracion of idenified documents that are actually relevant. Basically, how precise was the review in returning only relevant documents? Did it also bring you a bunch of garbage? F 1 : The mean of a review s recall and precision. A mathemaical formula taking in account the importance of both recall and precision. Overlap: The number of documents idenified as relevant by two independent reviewers divided by the number either ID as relevant. Basically, a measurement on how much the reviewers agree.

29 Technology Assisted Review The Seed Set Dilemma

30 Technology Assisted Review Notable Current Cases: Da Silva Moore v. Publicis Groupe SA, No. 11- CV (S.D.N.Y. filed Feb. 24, 2011) Kleen Prods. LLC v. Packaging Corp. of Am., No. 1:11- CV ALC- AJP (N.D. Ill. filed Sept. 9, 2010) Global Aerospace, Inc. v. Landow Avia'on, L.P., No. CL (Va. Cir. Ct. Loudoun Co. Apr. 23, 2012)

31 Technology Assisted Review The Law of Social Media

32 The Law of Social Media The Legal Challenge of Social Media as illustrated by

33 The Law of Social Media The Legal Differences: Facebook Twi[er SharePoint or Dropbox

34 The Law of Social Media Ques=ons: Who Owns the Data? A Reasonable Expecta=on of Privacy? How Should the Data be Accessed? Do Employers Have the Right to Access? Legal Limita=ons

35 The Law of Social Media Notable Current Cases: Douglas v. Riverwalk Grill, LLC, No (E.D. Mich. Aug. 24, 2012) People v. Harris, No. 2011NY (Cr. Ct. of City of N.Y.) PhoneDog v. Kravitz, No. C MEJ (N.D. Cal. Jan. 30, 2012)

36 David Horrigan:

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