Masters Conference 2010 ~ Cloud Computing: Discovery, Compliance, Litigation Risks and Solutions

On day 2 of the Masters Conference there was a very well attended session on Cloud Computing. Carolyn Depko, director of media relations for Edge Legal Marketing attended this session and shared some notes. What is “The Cloud”? What is cloud computing? Many different types, sizes, shapes, etc. of cloud computing but some shared features/characteristics: “Cloud Computing” -Shared Servers -Many Locations -Unspecified Geographical Locations “Dedicated Cloud” -Company Dedicated Servers -Locations May Be Limited -Locations May Be Specified & Known “Hybrid Cloud” A combination of cloud and dedicated cloud. Biggest issue with cloud computing – Giving Up Control Biggest Benefit – Cost Savings and scalability BUT understanding the risks is key. Make sure all “stakeholders” are involved and understand the benefits and risks for them specifically. The risks and questions to ask: 1) Preservation a) How will the data in the cloud environment be preserved? b) What is the method of preservation? c) What is the speed/scalability of the method? d) Is it all or nothing and if it can be limited what are the blind spots? 2) Data Authenticity a) Will you be able to authenticate your data? b) Has the cloud provider developed a procedure for inputting data? c) Has the cloud provider built-in safeguards to ensure accuracy & identify errors? d) Do you know the processes that were applied to the data? 3) Litigation a) Can moving data to the cloud expose you to new litigation? b) Who is liable for data breaches? c) Are we going to see claims alleging negligent protection of data or negligent hiring of a cloud provider? 4) Compliance & Regulatory Issues Additional topics discussed: 1) Many service provider “don’t get” the needs and requirements of companies. 2) MANY questions need to be asked of your service provider on many different levels and angles. 3) VERY IMPORTANT to “test” the security and deliverables that were agreed upon. Quality Assurance testing and auditing are VERY important. Is your service provider producing accurate results? 4) Best Practice Standards – Can we get Best Practice Guidelines developed for this industry?

Masters Conference 2010 ~ International Judicial Panel on eDiscovery/eDisclosure

On day two of the Masters Conference, Chris Dale, UK's e-Disclosure Information Project; Justice Clifford Einstein, Supreme Court, New South Wales; Senior Master Steven Whitaker, Senior Master of the Senior courts of England and Wales, Queen's Bench Division held an "International Judicial Panel" and here are a few take-away's from their fabulous discussion! The UK & England - The term for e-discovery in the UK is e-Disclosure - The “English rule on cost recovery.” – the “winning” party gets reimbursed for their discovery costs. - Master Whitaker – the scope of disclosure is different in the UK. There’s poor case management and very little judicial training. - The ESI Questionnaire – Using the ESI Questionnaire as a tactical tool. It is a helpful guide to issues which might arise and of which only some may be relevant to a given case. Both parties agree to use it OR the use can be ordered by the court. - The UK’s view is if you don’t find the smoking gun too bad. Australian Discovery - Discussion on the Australian rules of e-discovery and the differences/similarities. Justice Clifford Einstein says judges want to get to the heart of the case. They don’t have time to review volumes of unnecessary information. He also commented that he was glad to see (evident from the Masters Conference particularly) that the development and advancement of e-discovery technology has worked in the benefit of the profession. - The law is meant to be for everyone but the legal system is moving towards favoring the “bigger” guy not the small guy. There will be no room for the small, average person to bring a case because of the costs and the cases involving the largest sums of money seem to be first heard. - Australian approach to judicial education/training on technology – each Judge when appointed goes to school for about a week and is taught by peers with the most experience and grasp on current technologies being used. - Requirement in Australia for electronic production of documents in all cases where the number of documents exceed 200 so virtually all cases involve electronic discovery. Question from Craig Ball: What is in place in England/South Wales that encourages or prohibits the opponent to produce in native format? Response from Whitaker: There must be an agreement on format established early on. Conclusion Courts need to reign in the e-discovery and early intervention by the court is essential.

Masters Conference 2010 ~ Views from the W Hotel

I lived and worked in Washington DC in the summer when I was going for my undergraduate degree. Some of the best moments were when we'd go to the top of the W (formerly the Washington Hotel) to take in some of the best views of the city! In this video you will first see the White House, then the Washington Monument. You can see other national monuments from the W, but they are at a distance. The W was where many of the speakers and attendees stayed for Masters Conference 2010.

Masters Conference 2010 ~ Judicial Expectation in e-Discovery

Carolyn Depko, director of media relations for Edge Legal Marketing, session notes from the Masters Conference 2010.

Judicial Expectation in e-Discovery

Day 1

Speakers:

Judge Joy Conti - JC

Judge John M. Facciola - FAC

Q – How much of a problem is e-discovery for you?

JC – Certainly in some cases it’s a big problem. BUT the key is having an open dialogue.  Open dialogue is very important. Having provisions in place is also important.  Her court’s 26F report includes specific questions and a check list regarding discovery and preservation. Unfortunately today many attorneys are not taking seriously the issues that can come up during discovery.

FAC – On the Federal level, experiences particular aspects and developments unique to the government and government involvement.  Several being 1) the U.S. as a defendant 2) the gov’t as a holder of a lot of information in cases & suits and 3) the gov’t as the “demander” of information.

FAC – A trend and a more frequent occurrence of Judges questioning the amount of money that is being spent on e-discovery and wondering WHY the money and time is being spent. Is it worth it? 

JC – Education for Judges is key and welcomed.  She loves groups such as “Friends of e-Discovery” and any program available to her and fellow judiciary colleagues that help to educate and keep her abreast of technological developments, e-discovery processes and methodologies used in capturing data and search and e-discovery tools.

JC – Highly recommends getting to know the judges on your state and federal benches.  Reach out to a couple about opportunities to meet with them and discuss e-discovery issues and developments. Hopefully those couple can get their colleagues involved.  Education is important to the judicial community.

KEY/top-of-mind topics and issues: Cooperation and proportionality

JC – Cooperation is something Judges can take more control of and get involved in earlier. Proportionality – the parties need to discuss first and then go to the judge with issues and opinions on costs and requests. 

It’s important to come with the mindset of cooperation. It saves A LOT of time and Money.  It just makes sense. Parties need to BE PRACTICAL.  What needs to be considered: What is the most economical way to get the information we need in this case.

FAC – Commenting on the issues that arise when the two parties are not on the same level of “understanding” in terms of the technology available. When the levels of knowledge regarding the e-discovery process, tools and costs are very different – it can create a lot of issues and the judges often need to step in and make suggestions about methodology and solutions. The difference in knowledge is a deterrent to cooperation because one party just “doesn’t get it.”

Development of a Special Masters Board where the members will work pro bono to mediate and educate parties in a case on e-discovery processes available and get some agreement.

Q – In terms of the duty to preserve for corporations, are you seeing that issue come up more or how are you currently handling the preservation issues?

JC – Companies need to handle/discuss preservation in the cooperation stage. And if there’s an issue with preservation and agreeing on terms it is important to come to the court with the issues early. The earlier the better to get any issues straightened out.

FAC – Has no patience for companies that make NO effort to preserve what they should and/or keep WAY too much information and then they say the costs to produce and process that data will just be too much.

JC – Has less sympathy for companies that have arbitrary deletion policies of 2 weeks. Why do you have that policy?  Does it make sense? And if there’s no good reasoning behind that policy she’s not happy about it. Where is the justification for the policies? Why are you not saving e-mails for at least 1-2 months instead of 2 weeks?

Communication between IT & management IS KEY.

FAC – The IT staff and management should know one another.  He can’t believe after 15 years or so this disconnect is getting worse not better.  Where is the cooperation between IT and management?  The management needs to know what their firms/company’s retention terms and policies are BEFORE a litigious situation. 

FAC – He wants/needs “proof” from an expert that a cost/request is too “burdensome.”  He wants something tangible to back up that statement.

Daubert Challenges

JC – IT folks are VERY up front and honest.  When IT can get together and discuss what will be delivered and how parties can avoid the “dueling experts” in court. 

FAC – It’s important to “head it off at the pass.”  Agree to the terms, process, experts early on.

Communication between Counsel 

JC – Important for counsel to communicate with one another and target the necessary information.  How many employees’ e-mail do you REALLY need?  Identify what employees are really relevant and involved in the case.  Be realistic about how much information needs to be collected.

Words for tomorrow?

JC – Privacy, Indemnification; using third parties

FAC – Protective orders; “Free Discovery” – the generational divide as younger people are not as protective of privacy.

Catalyst and Wave Software Automate Data Transfer for Leading E-Discovery Products

Catalyst Repository Systems, Inc., a pioneer in providing hosted document repositories for e-discovery and other complex legal matters, today announced automation of  data file formatting and export between the Catalyst CR review platform and Wave Software’s Trident Pro Native Review Bridge (NRB) module. This effort, which is now featured in the most recent version of Trident Pro, results in a dramatically streamlined electronic file exporting process that loads data files from Trident Pro directly into Catalyst Fast Track. To learn more, visit http://www.catalystsecure.com/news/449-catalyst-and-wave-software-partner.html

By Guest Blogger: Catalyst Repository Systems