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These are just a few of the issues that any General Counsel should be considering when their company looks into utilizing a cloud provider. The cloud is that nebulous place where data is stored, off-premises, in a (hopefully) secure, reasonably accessible environment. Cloud-based solutions can be great options for IT: Low cost to implement, no capital expenditures, less man-power needed to support the systems, etc. But as the poor GC above started thinking about, there are many legal ramifications to hosting data in the cloud.

The real challenge from a Discovery perspective comes when it’s time to try to retrieve the data. There are tons of articles out there (Google is your friend!) that discuss the legal issues around cloud providers and Discovery. They discuss ownership, accessibility, third-party access and control of the data. Under the Federal Rules of Civil Procedure, a party to litigation is expected to preserve and be able to produce ESI that is in its “possession, custody or control.” Obviously, the question comes up; is your data that’s stored in the cloud in your control? It really depends on the situation and how the cloud provider has provided that control. I think equally import is the practical question: how do I collect data from the cloud?

Some providers will allow a fairly good amount of access to your data, but what happens when it’s more challenging to access that data? What if you want to cull that data prior to collection? You may be out of luck depending on your situation. Microsoft has a (somewhat) new offering called Office 365. If your organization is either using this system or planning to, a question you should be asking is how easily can you collect data from the Microsoft hosted Exchange system? Microsoft doesn’t make it easy to access the back-end, nor offers any type of automated utility. There are third-party tools that allow admins to bulk extract data, but it is going to be painfully slow. Microsoft puts speed restrictions on downloading data from their public cloud. Imagine having to extract a terabyte of info over the Internet; it could take a while! Not to mention since access is limited, forensic examination would be even more challenging. This is one example of the types of issues organizations will face when considering cloud solutions. If you are involved in frequent litigation, it’s best to include an Discovery provider familiar with these issues and tools.

The most practical advice we can give when it comes to working with a cloud provider is this: Make sure you have asked all of the questions you need to with regard to access and control of your data once its in the cloud. Does the cloud provider even know about Discovery? Also, enlist the help of a knowledgeable Discovery provider. We have been through this before and asking the right questions of the cloud provider may be the difference between an easy collection and a missed deadline, sanctions and endless frustration. Making sure you’ve asked these questions in advance will help when it comes time for the fire drill.

Author

Adam Rubinger, JD
Director of Discovery Management
arubinger@nightowldiscovery.com

Custodian self-collection is a particular collection method that has drawn extensive judicial scrutiny. It is where the custodian is left to subjectively identify, manually preserve and collect (drag and drop) their own ESI. It is often confused with the practice of allowing the custodian to initiate an automated collection using a portable collection device.

Portable collection technology has been around for a long time and is used when the target computer cannot be accessed via a corporate network, the connection is too slow to collect the ESI over a network and/or the company has no available defensible collection technology. Normally, a portable collection device is connected to a USB port to conduct a pre-defined automated collection directed by corporate counsel. The custodian is not allowed to make any judgment calls about evidence location or what to collect.

On the other hand, when a custodian is allowed “free rein” to determine what is or is not relevant to a litigation hold, the risk of spoliation increases dramatically because of possible bias on the part of the custodian, misinterpretation of often complicated hold instructions, and/or failure to recall where the evidence is located on the target hard drive. Allowing the custodian to manually move – drag and drop – the ESI identified by them to be relevant;  will most likely cause the destruction of relevant metadata. For this reason, the courts show no tolerance for this type of self-collection.

For example, in Samsung Electronics v. Rambus 439 F.Supp 2d 524 (E.D. Va 2006) the court determined that the defendants lack of “systematic and effective process”  to collect and preserve relevant ESI directly led to spoliation. In Cache La Pudre Feeds, LLC v. Land O’Lakes, Inc. 244 F.R.D. 614 (D.Colo. 2007) the court reprimanded defendant for simply directing employees to produce relevant information, and rely on those same employees to exercise their discretion in determining what information to save.

Additionally, in National Day Laborer Organizing Network et al. v. United States Immigration and Customs Enforcement Agency, et al. (SDNY, July 13, 2012), Scheindlin admonished that “most custodians cannot be ‘trusted’ to run effective searches. See also Google Inc. American Blind & Wallpaper Factory, Inc. 2007 WL 1848665 (N.D. Cal. June 2007).

In all these cases, the party failed to use a systematic and defensible preservation process and instead left it to their employees to subjectively identify, manually preserve and collect potentially relevant ESI.

Portable collection technology is a proven defensible and systematic process where the collections are pre-defined by the software and not the custodian; facilitating a systematic and uniform collection among [all] custodians.  Unlike custodian self-collections, the software properly preserve’s all metadata and the complete file path identifying where the evidence was located on the target drive. It creates a complete collection log including time of collection, the defined collection criteria, the identity of the target computer and any exceptions or errors to the collection.

NightOwl recently released the nVelope portable Collection Kit which allows anyone to defensibly collect active data from any computer for discovery, backup or investigations. The nVelope Collection Kit doesn’t affect any data on the investigated computer, quickly collects the defined data, and securely stores it in encrypted form on the 1 TB nVelope Collection kit.

To read the review in Law technology news, click here or for more information, contact Albert Barsocchini by email at abarsocchini@nightowldiscovery.com or by phone at 612.337.0448.

Author

Albert Barsocchini
Director of Strategic Consulting
abarsocchini@nightowldiscovery.com

Albert has over 25 years of global legal and technology experience in Discovery, data protection and privacy, and digital investigations. He has extensive experience briefing to executive and senior leadership in time critical situations and performing well in high pressure, high visibility environments.

Albert is a member of the ALM Law Technology News’ advisory board and frequent contributor to ALM, a Certified Discovery Specialist, CIPP and Encase Certified.

Clawback agreements are more than just a legal inoculation against malpractice; such orders are becoming increasingly important in limiting the costs of privilege and work product review. Yet clawback agreements are still rare.

Federal Rule of Evidence 502(d) gives a federal court the power to enter clawback orders, and as the advisory committee notes to 502(d) indicate, the parties don’t even have to agree on the clawback order for the court to enter it.

Additionally, there is a split whether clawback agreements afford ironclad protection against privilege waiver if they are not coupled with effective due diligence. Some Courts look at the reasonableness of the steps taken to prevent inadvertent disclosure to see if a ruling of waiver is appropriate.

Is it malpractice to not use a clawback? Legal malpractice is a state law claim, so the standard will vary from state to state. Additionally, there would need to be harm resulting from the failure to enter into a clawback agreement.

Questions remain about what happens when privileged is waived for a key document and the client loses the case? What happens if a client is forced to incur a large amount of legal fees litigating a privilege issue that may have been avoided by a clawback order?

Using an order or an agreement without a privilege review could also raise ethical concerns. Rule 1.6 of the ABA Model Rules of Professional Conduct, specifies: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

A well-crafted clawback agreement memorialized by an order provides the parties with both a safety net and potential cost savings as well. District Judge Browning of the District of New Mexico stated in a recent opinion that the clawback train has left the station and all lawyers need to be on board.

Author

Albert Barsocchini
Director of Strategic Consulting
albert@nightowldms.com

Albert has over 25 years of global legal and technology experience in Discovery, data protection and privacy, and digital investigations. He has extensive experience briefing to executive and senior leadership in time critical situations and performing well in high pressure, high visibility environments.

Albert is a member of the ALM Law Technology News’ advisory board and frequent contributor to ALM, a Certified Discovery Specialist, CIPP and Encase Certified.

There are quite a few technology providers that offer a CAR solution, each has their own strengths. For the most part, these tools do pretty much the same thing. An expert reviewer starts the process by creating a control set (a gold standard of what makes a document either relevant and non-relevant). This allows the system to compare all other documents against the control set. Then the reviewer goes through a series of review sessions to further train the system against the control set. As the system is being trained, the algorithms are able to then predict the potential responsiveness of the remaining documents. Once the system has learned all it can, it will then tag the responsiveness of the remaining documents. The legal team can then make decisions on what to do with the predictions.

This type of computer learning system is helpful in several ways; it can significantly reduce the cost of review, reduce the number of documents reviewed, and in some cases, provide a better rate of precision, recall and accuracy than traditional human review. How the system calculates precision and recall is easily quantified and can be used during negotiations with opposing counsel and the court.

There are some significant nuances and choices that need to be made when embarking on a CAR exercise. What level of recall is desired? What is an acceptable level of confidence interval (or error margin)? What should be done with the documents once the systems has completed the prediction? These questions should be discussed as part of the overall legal strategy. The technology can support these questions with statistics, which will help the decision on these and many other questions.

Having a technology partner that not only understands the technology, but the legal implications is critical to a successful use of CAR. The statistics are confusing and correct choices need to be made in order to ensure reasonableness and legal defensibility. Having a partner who has gone through the exercise, knows the current case law and can be a guide through the process, will ensure that the benefits (reduced cost, risk and time) are fully realized.

Author

“This is an important strategic initiative for NightOwl; Kroll Ontrack is a long-standing leader in ediscovery solutions,” said Andrea Wallack, CEO, NightOwl Discovery. “Offering the Kroll Ontrack platform expands our ability to serve clients with a wide range of eDiscovery needs.”

“The flexibility and expertise that are the hallmark of NightOwl’s client services group, combined with the Kroll Ontrack advanced software platform, will offer customers a highly responsive, trusted and cost-efficient option for managing eDiscovery for any size matter,” said Tom Palladino, president, NightOwl Discovery.

Through the partnership, NightOwl clients will benefit from the following Kroll Ontrack advantages:

• Robust Processing and Production: Unmatched ability to meet complex client requirements, including processing and producing over 7,000 file types and scaling to more than 6 million documents with 52 million pages of electronic data per day.
• Industry-Leading Data Center: Physical security 365x24x7 coupled with stringent security protocols, including bio-metric hand scanning to identify approved personnel, and fully redundant power ensure world-class data storage.
• Award-Winning Review Technology: Complete with rich technology assisted review (TAR) functionality known as intelligent review technology (IRT), where documents are automatically distributed to review teams according to sophisticated specifications and then prioritized and categorized using a hybrid solution of human reviewers and smart technology, the Ontrack® Inview™ review tool maximizes review speed, consistency and accuracy.

“I rely on the NightOwl team for expert discovery services. They understand my needs for clear communication, quick response and flexibility,” said Leif T. Simonson, partner, Faegre Baker Daniels. “The combination of NightOwl’s team and Kroll Ontrack’s technology offers me outstanding service and performance – all in one cost-effective solution.”

“Too often clients are forced to choose between managed service providers they have great relationships with and software providers that offer choice technology,” said Dean Hager, president and CEO, Kroll Ontrack. “Through partnerships, clients don’t have to choose. They get the best of both worlds – leading software and support to exceed their expectations and needs.”

For more information about this joint offering, visit www.nightowldiscovery.com or www.krollontrack.com.

About NightOwl Discovery
NightOwl Discovery is a leading national provider of discovery management services. NightOwl brings the most advanced tools in the industry together with a highly responsive client service team to help customers identify, collect, manage, review and produce electronically stored information. In addition, NightOwl’s professional services group offers strategic discovery consulting, technology selection, and corporate discovery technology support and optimization. For more information about NightOwl Discovery please visit: www.nightowldiscovery.com.

About Kroll Ontrack Inc.
Kroll Ontrack provides technology-driven services and software to help legal, corporate and government entities as well as consumers manage, recover, backup, search, analyze and produce data efficiently and cost-effectively. In addition to its award-winning suite of software, Kroll Ontrack provides data recovery, data backup, data destruction, electronic discovery and document review. Kroll Ontrack is a subsidiary of Altegrity, an industry-leading provider of information solutions. For more information about Kroll Ontrack and its offerings please visit: www.krollontrack.com.

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Media Contacts
Albert Barsocchini
abarsocchini@nightowldiscovery.com, 415-456-8318

Kaitlin Shinkle
kshinkle@krollontrack.com, 952-516-3581

“nVelope was specifically designed for ease of use and defensibility of the collection,” said  Tom Palladino, President of NightOwl.  “Our customers have been asking for an affordable simple to use collection kit and we delivered.”

“I have studied all available portable collection devices on the market and nVelope is by far the easiest one to use – no training required,” said Albert Barsocchini, Director of Strategic Consulting at NightOwl, who helped design nVelope.  “When the USB device is plugged into a computer, the user has three choices:  Collect all, Collect selected folders or Smart collection – collect selected folders and data types.”

NightOwl plans to license nVelope as part of its  nVision^TM managed service program and as a standalone collection kit.

About NightOwl
NightOwl Discovery is a leading national provider of discovery management services.  NightOwl brings the most advanced tools and highest level of customer service in the industry together to help our customers identify, collect, manage, review and produce electronically stored information (ESI).  In addition, NightOwl’s professional services group offers strategic discovery consulting, corporate discovery technology support and comprehensive trial consulting.  NightOwl’s mission is to provide its customers with the right solution to fit both their legal and business needs.  For more information, please visit www.nightowldms.com.

Contact Information
Scott Sterkel
Director of Marketing
NightOwl Discovery
(612) 337-0448
ssterkel@nightowldms.com

F.R.C.P. 30(b)(6) authorizes a party to demand the deposition of a corporation or public entity, rather than a specific person. The deposition notice must specify the subject matter for the deposition with “reasonable particularity”. The deponent’s testimony represents the knowledge of the entity, not the person being deposed. By placing the burden of identifying responsive witnesses on the organization, the rule streamlines the discovery process and facilitates meaningful deposition.

To that end, the corporation must designate one or more persons to testify on its behalf regarding “matters known or reasonably available to the organization” which pertain to the specified topics. The resulting testimony binds the company and may be used by the discovering party for any purpose.

The designation of the 30b6 witness is one of the most important decisions a corporation will make during discovery – that witness will speak for the entire organization and will bind it in the current litigation and future as well.

The witness may be called to testify on a wide variety of topics including qualifications and organizational structure, information systems, software and email, records management, alternative sources of electronic information, legacy systems, backup and restoration procedures, production of ESI in other lawsuits. In fact, it may require more than one witness to give meaningful testimony, especially for large corporations.

The witness can be either an employee or outside expert. That person does not need personal knowledge or be the most knowledgeable within the corporation; only that he or she possess institutional knowledge on all relevant information reasonable available to the corporation to adequately respond to the questions and categories identified in the notice.

Preparation of the witness should be thorough. If possible, use the same battle hardened witness each time. Since witness preparation is discoverable, be careful what that witness is exposed to both as an employee and during preparation. For example exposing a 30b6 witness to privilege documents may create subject matter waiver of the specific privilege. Additionally, that witness may also become a fact witness besides a 30b6 designee, which can cause additional problems e.g. broadening the scope of the examination. For these reasons, most companies decide to outsource this witness to vendors like NightOwl.

The 30b6 witness is a critically important resource for both the requesting and responding party in e-discovery. Having a properly prepared witness can make the difference between keeping on point with the merits of the case instead of chasing discovery ghosts.

NightOwl provides 30b6 witnesses services to our corporate customers. To learn more how we can assist you in this area, contact Albert Barsocchini, albert@nightowldms.com.

NightOwl’s Professional Consulting Group

NightOwl’s professional consulting group offers high level strategic thinking by expert attorneys and discovery professionals to build best practices for managing a wide range of discovery and data management challenges. Our team will help assess, optimize workflow, decision making and technology to provide you with a cost-effective and defensible strategy. For information or to schedule a consultation contact, Albert Barsocchini – albert@nightowldms.com.

nVision

NightOwl is leading the way in both simplifying the process of discovery and delivering new flexible pricing models. Our new subscription based bundled and fully managed program nVision is unique to the industry. Make your discovery cost-predictable and cost-effective. To learn more about this new program, and other fully managed discovery options contact Adam Rubinger –  arubinger@nightowldms.com.

Author

Albert Barsocchini
Director of Strategic Consulting
albert@nightowldms.com

Albert has over 25 years of global legal and technology experience in Discovery, data protection and privacy, and digital investigations. He has extensive experience briefing to executive and senior leadership in time critical situations and performing well in high pressure, high visibility environments.

Albert is a member of the ALM Law Technology News’ advisory board and frequent contributor to ALM, a Certified Discovery Specialist, CIPP and Encase Certified.

This 60-minute seminar will provide in-house counsel with best practice tips on how to mitigate the risk of these types of lawsuits as well as prepare for and defend them in court.

1. Proactive strategy for mitigating risk of lawsuits

a. Looking at the label through a litigation lens
1.) Promotional puffery vs. actionable misrepresentation
2.) Choice of law strategy

b. Defending the label from a substantive and class perspective

c. Ongoing client counseling concerns
1.) Individual officer liability
2.) Government actions
3.) E-discovery
4.) Client education and inter-departmental communication

2. E-discovery issues and best practices

Presenters:

Kristen E. Polovoy is Of Counsel at Montgomery, McCracken, Walker & Rhoads, LLP

Sara M. Turner is a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (Birmingham)

Albert Barsocchini is Director of Strategic Consulting at NightOwl Discovery

Michael Hayes is a founding Co-Chair of the E-Discovery Group at Montgomery, McCracken and a partner in the firm’s litigation department

As more affordable and easy to use technology became available and outsourcing prices sky rocketed, bringing eDiscovery in house was touted as a way for law firms to increase revenues, control cost and deliver better and more efficient legal services to their clients.

Recently, there has been a shift back to outsourcing. The reasons for this include: software vendors finding it difficult to deliver on all their promises; that bringing eDiscovery in house is not as easy as they were first lead to believe; underestimating the real cost of training, support and maintenance; the technology is evolving quickly; realizing that technology assisted review requires highly skilled people; and that outsourcing costs are coming down dramatically.

Additionally, employees trained on a particular technology are jumping ship for more pay and greener pastures elsewhere; which requires a law firm to restart the education process all over again at considerable expense.

For these reasons, law firms are now understandably cautious about investing in technology that is rapidly evolving. They realize that outsourcing discovery services for their clients can be more cost effective than in-sourcing, it allows firms to deliver “best of breed” technology to their clients, and they get top expert advice from vendors that are conducting eDiscovery on a daily basis.

Downward pricing pressures will continue to intensify into 2013 and is an indicator that the outsourcing and managed service trend will continue to grow. Law firms are taking advantage of it and are now able to deliver high quality expert services to their clients at a very reasonable and predictable cost.

NightOwl’s Professional Consulting Group

NightOwl’s professional consulting group offers high level strategic thinking by expert attorneys and discovery professionals to build best practices for managing a wide range of discovery and data management challenges. Our team will help assess, optimize workflow, decision making and technology to provide you with a cost-effective and defensible strategy. For information or to schedule a consultation contact, Albert Barsocchini – albert@nightowldms.com.

Author

Albert Barsocchini
Director of Strategic Consulting
albert@nightowldms.com

Albert has over 25 years of global legal and technology experience in Discovery, data protection and privacy, and digital investigations. He has extensive experience briefing to executive and senior leadership in time critical situations and performing well in high pressure, high visibility environments.

Albert is a member of the ALM Law Technology News’ advisory board and frequent contributor to ALM, a Certified Discovery Specialist, CIPP and Encase Certified.