All About eDiscovery

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It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated with relevant technology.  And, relevant technology is not limited to electronic dockets (i.e., NYSCEF, and ECF) and preserving text messages a client sends about his/her representation.  Rather, relevant technology includes today’s world of social media including Facebook, Twitter, Instagram, and Snap Chat to name a few.  Today’s blog is intended to highlight a few of…
Angela Lawrence (“Lawrence”) was a plaintiff in a civil rights action that alleged officers of the New York City Police Department (“NYPD”) entered her home in August 2014 without a warrant, pushed her to the ground, damaged her property, and stole $1,000 in cash.   In September 2016, Lawrence provided photographs to her attorney (“Leventhal”) that she claimed depicted the condition of her apartment several days after the incident and which appeared consistent with Lawrence’s recitation…
“Self-collection” refers to the situation in which the custodians of information potentially relevant to a legal proceeding undertake to identify and collect that information on their own and provide the collected content to counsel. The typical self-collection situation involves some limited instruction or oversight from counsel (in-house or outside).  For example, outside counsel issues a litigation hold notice identifying various topics and potentially responsive data.   A recipient of that notice undertakes to review his/her paper files,…
On October 1, 2018, a new Rule (specifically, a new subdivision to existing Rule 11-e) of the Commercial Division Rules, will go into effect.  Rule 11-e governs Responses and Objections to Document Requests.  The new subdivision, promulgated by administrative Order of Chief Administrative Judge Lawrence K. Marks, governs the use of technology-assisted review (“TAR”) in the discovery process.  The new subdivision (f) states: The parties are encouraged to use the most efficient means to review…
In a recent decision out of Oklahoma (Curtis v. Progressive N. Ins. Co., No. CIV-17-1076-C [W.D. Okla. June 13, 2018]), District Judge Robin J. Cauthron ruled that non-party ESI subpoenaed pursuant to Rule 45 was not subject to the 100 mile-limitation found in the Rule.  Specifically, the Court held there is “no violation of the 100-mile limitation,” as the non-party “subpoena at issue does not require the travel or attendance of any witnesses…
The American Bar Association Ethics 20/20 Commission and Rule 1.1 provide that a lawyer’s duty of competence “[t]o maintain the requisite knowledge and skill, [requires] a lawyer [to] keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology.”  The New York County Lawyers’ Association Professional Ethics Committee Formal Opinion 749 (Feb. 21, 2017) echoes Rule 1.1 and discusses a lawyer’s “ethical duty of technological competence.”  Therefore, in…
In my December 2016 blog post, I wrote about how developing effective key words is very much an iterative and thought intensive process.  This message was recently reaffirmed by a decision out of the Southern District of Ohio, wherein the Judge reminded us that the process of identifying search terms it not merely one of guesswork.  Rather, it requires deliberative thought, testing and refining such that the searches yield target-rich and proportionate results. In…
In 2016, Florida became the first state to mandate technology training for lawyers, when it adopted a rule requiring lawyers to complete three hours of CLE every three years “in approved technology programs.”  The requirement went into effect on January 1, 2017.  On April 20, 2018, the North Carolina State Bar Council approved a proposed amendment to the lawyer’s annual CLE requirement.  That amendment, if enacted, would mandate that one hour of the required twelve…
When tasked with a document review project, there are various analytic tools available to streamline the process in order to improve efficiency and accuracy.  We’ve already discussed certain of these tools (see April 26 post discussing predictive coding and May 16 post discussing email threading).  Today’s post focuses on another, interrelated tool: document clustering. What is Document Clustering? As you can imagine, the way in which a cache of documents is organized for review can…
The April 26 blog post discussed predictive coding as one of many analytical tools available to empower attorneys to work smarter, thereby reducing discovery costs and allowing attorneys to focus sooner on the data most relevant to the litigation. Another tool in the litigator’s arsenal that can promote efficiency during document review is email threading. According to The Radicati Group, the average employee sends 36 emails per day. That extrapolates to approximately 10,000 emails…