To download a copy: Click Here
-------------------------------------------Electronically stored information is increasing exponentially, and bills from law firms and discovery vendors to deal with this vast sea of data escalate significantly each year. Jason Baron, the director of litigation at the National Archives and Records Administration, believes that ESI is growing so fast that even with unlimited funds and human resources it will soon be impossible for humans to review these large document populations.[FOOTNOTE 1] Still, lawyers faced with potential malpractice claims and sanctions are loath to try new methods for handling the problem. It is time for change.
The traditional means used by litigators to address ESI is the application of keywords and Boolean search terms to identify relevant and non-privileged materials.[FOOTNOTE 2] While acknowledging that this method is unquestionably deficient, a recent article published in this publication concluded that "the available evidence suggests that keyword and Boolean searches remain the state of the art and the most appropriate search technology for most cases."[FOOTNOTE 3] We agree that, in a perfect world, if the parties can nevertheless meet and confer, and agree upon keywords to reduce the population to manageable proportions, the traditional judgmental method can be made to work. However, this is an imperfect world where plaintiffs and defendants do not always agree, and are not always equally motivated, to reduce costs. In fact, it is often quite the opposite. Moreover, even where the sides use judgmental sampling to agree upon keywords, the costs nevertheless usually remain too high.
THE JUDGMENTAL APPROACH
The judgmental approach to keywords ultimately fails because of "recall" and "precision." "Recall" measures how completely a process captures target data. "Precision" measures efficiency - the amount of irrelevant data captured along with the target data. Keywords, as judgmentally used by lawyers, recall too little, while capturing much that is irrelevant. An early landmark empirical study by David Blair and M.E. Maron[FOOTNOTE 4] showed that while lawyers thought they were retrieving about 75 percent of the relevant data, the true results were more like 20 percent. A subsequent study, conducted by the Text REtrieval Conference,[FOOTNOTE 5] confirmed this result, finding that only 22 percent of relevant documents were recalled using keyword search techniques, as opposed to approximately 78 percent found by other search techniques.[FOOTNOTE 6] Many lawyers will also tell you that it is common for reviewers to find only 10 to 40 percent of the recalled documents to be relevant, meaning lawyers are reading mostly junk.
To Continue Reading: Click Here
-------------------------------------------
Source: law.com
By: Wayne C. Matus and John E. Davis
To download a copy: Click Here
-------------------------------------------
Source: Fulbright.com
Of the many burdens litigators must shoulder, among the most irksome may be disputes over what documents are confidential and what agreements and markings are necessary to keep them that way.
These confidentiality issues have become more pressing in the era of e-discovery, as ever-burgeoning masses of electronically stored information inundate the discovery process. Determining and demarcating the confidentiality of ESI may overwhelm harried counsel who must review their client's data before producing it to an opponent.
A recent decision in the Southern District of Indiana offers an economical, common-sense approach to confidentiality -- one that practitioners and courts alike should consider.
In Containment Technologies Group Inc. v. American Society of Health System Pharmacists, No. 07 Civ. 997, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008), the plaintiff claimed that an article written and published by the defendants, which compared an "aseptic isolator" medical device manufactured by the plaintiff with competing products, was defamatory.
When discovery commenced, the defendants requested the production of documents concerning the plaintiff's testing and design of its isolator. The plaintiff objected to producing the documents without a protective order, arguing that some of the requested documents contained proprietary information. The parties were unable to agree on the terms of such an order. And so, the plaintiff moved for application of its proposed protective order and the defendants moved to compel production -- and also submitted a dueling version of the protective order along with their motion.
The core of the parties' dispute was whether the protective order would include a provision, as the defendants insisted, requiring that "entire documents only be stamped confidential if indeed the entire document is confidential, and otherwise [that] only those portions or pages that are confidential be marked as such"; the defendants based this argument on language in Citizens First National Bank of Princeton v. Cincinnati Insurance Co., an opinion by the U.S. Court of Appeals for the Seventh Circuit that states: "a document that contains trade secrets may also contain material that is not a trade secret, in which case all that would be required to protect a party's interest in trade secrecy would be redaction of portions of the document."[FOOTNOTE 1]
To Continue Reading: Click HereA reporter recently interviewed me about in-car GPS navigation systems as evidence. Aside from vehicle tracking devices planted on suspect vehicles, neither of us could point to more than a few matters where GPS evidence played a role in court; yet, its untapped value to criminal and civil cases is enormous. Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went next.
GPS-enabled personal travel assistants store both waypoints and typed destinations, distinguishing a suspect who claims coincidental presence from one who entered the address of the crime scene. Some units offer hands-free phone interfaces, recording frequently called numbers and holding unique identifiers for each linked telephone, enabling prosecutors to more persuasively tie the navigation system to a particular user.
With many units costing under $150, these marvelous devices are appearing on more dashboards and will be appearing in more courtrooms; but the reporter was thinking too small. There will soon be a location-enabled device in near-constant use by almost every man, woman, 'tween and 'teen in the U.S. And it won't be on dashboards. It's as close as your cell phone.
To Continue Reading: Click HereIf a lawsuit crops up, agency IT departments might need to produce files, including wikis, blogs and voice mail
GOVERNMENT AGENCIES can no longer remain unaware of the legal implications of their new technologies.
In June 2007, the U.S. Court of Federal Claims chastised the Justice Department and the Army for failing to properly preserve electronic records, in the case of United Medical Supply Co. v. United States (77 Fed. Cl. 257).
United Medical claimed the Army had failed to adhere to the terms of a procurement contract with the company by ordering supplies from other vendors. When the suit was brought, the Army Defense Supply Center’s legal team sent e-mail messages to the medical facilities asking them to save any electronic documentation relevant to the case. However, many of those facilities never got the electronic dispatches and routinely destroyed the records, in the process destroying the government’s line of defense.
For the judge, the failure to establish proper procedures to save and identify electronic records constituted reckless disregard by the federal government. As a result, Justice could not cross-examine the plaintiff ’s expert regarding destruction of evidence and had to reimburse the plaintiff for additional e-discovery costs.
Companies around the world that are struggling to come to grips with controlling and classifying the years of data they have accumulated throughout their enterprises, are turning to automated data discovery, collection and classification tools for help.
That's according to Derek Street, product manager at SecureData Security. He says that the biggest challenges that companies face as they try to control the data scattered throughout their systems is knowing where this data is and then classifying it to enforce restrictions about who may use the data and how they may use it.
Says Street: “Most companies have vast volumes of data spread across their systems, ranging in format from structured information in databases to reams of unstructured data such as documents, image files and even multimedia files. The data may be housed on enterprise systems in the data centre or on hard drives on end-user devices such as notebooks and desktops.
“Not knowing where all of this enterprise data is and what various files contain can create security risks since the organisation may mishandle sensitive or confidential information. Finding and securing this information without automated tools is challenging and time-consuming.”
Some digital forensic tools help enterprises manage this challenge by reading and recording information about the files in the IT environment – including elements such as the type of file, when it was created and last accessed, and who has access to the file. This information allows companies to manage their data according to clearly defined risk management policies
To Continue Reading: Click HereTo Continue Reading: Click Here
-------------------------------------------
Source: businesswire.com
For More Info On This Event: Click Here
-------------------------------------------
Source: law.com
