E-Discovery Crashes the Computer Forensics Show

Kevin L. Nichols
Principal, KLN Consulting Group

By: Kevin L. Nichols
The Recorder
November 18, 2010



On Nov. 1 and 2, Fort Mason in San Francisco housed a high-profile group of presenters at the Computer Forensics Show. The show’s purpose was to introduce the latest advancements in the forensics marketplace. A broad range of topics was discussed, such as e-discovery cost management, project budgeting, managing the technical aspects of document reviews, and corporate counsel’s perspective of e-discovery; however, two topics stood out at providing cutting-edge trends in the legal industry.

The first presentation was “Avoiding E-Discovery Landmines” by Eric J. Sinrod of Duane Morris in San Francisco. Its general purpose was to provide a comprehensive overview of how failing to effectively respond to electronic discovery can lead to severe monetary sanctions and adverse case results. According to Sinrod, in light of the aftermath of the changes to Federal Rules of Civil Procedure, Rules 16(b) and 26(f), parties are having a difficult time reaching consensus with the required “meet and confer” process as it relates to e-discovery. Failure to adhere to production obligations can lead to serious sanctions, sometimes in the millions of dollars. Moreover, with the broadening of the definition of the terms “documents” and “data compilations,” parties are also having to agree on how to produce such items as voice mail messages, social networking communications, instant messages, blogs, backup tapes, etc., which can be very costly.

To combat these changes, Sinrod offered several strategies that companies can implement to reduce their exposure while complying with the federal rules. The first is implementing strong retention policies and executing them. Under FRCP 37(f), a company will not ordinarily be sanctioned for deleting e-mails if it is done as part of a “routine, good faith, operation.” Thus, if companies create and execute short-term retention policies they can reduce the likelihood of having to produce outdated e-mails and other electronically stored information. However, if a “litigation hold” is put in place, or the company is aware of potential litigation and purposely continues to purge or delete ESI, a firm retention policy may not protect it from charges of spoliation and sanctions.

Unfortunately, neither having a large, robust IT department, nor the cost/complexity of retrieving ESI from backup tapes spare parties from having to produce it. The cost of production is sometimes in the hundreds of thousands of dollars and ESI must oftentimes be produced within 30 days. In certain circumstances, where the cost of complying with e-discovery requests is high, but the results are unlikely to yield relevant or a highly probative evidence, parties are able to shift the cost of e-discovery to the opposing side. This is not the norm, however, and parties are typically expected to bear their own costs.

Sanctions can be costly. By way of example, Sinrod referenced z4 Technologies v. Microsoft Corp., 507 F.3d 1340 (2007) where Microsoft failed to disclose and produce certain e-mails, and the judge ordered it to pay $25 million in additional damages and an extra $2 million in attorneys fees for litigation misconduct. To avoid sanctions for withholding presumably privileged ESI, an attorney can play an integral part of the company’s infrastructure as counsel, but not as a businessperson. Sinrod made a distinction between communications that are truly attorney-client privileged and those where attorneys are merely being copied on, or present at business meetings where they are giving non-legal advice. If ESI is truly privileged, in most cases, it does not have to be produced.

Sinrod explained that most companies are not prepared to handle the obligations required by the FRCP amendments. Thus, he recommended companies establish these five practices:

• client counseling — refining client’s “Record Retention Policy” to address ESI;

• reasonable anticipation of litigation — knowing when to create a “litigation hold” regarding ESI;

• “meet and confer” obligations — developing comprehensive confidentiality agreements that include detailed “clawback” provisions under the Federal Rules of Evidence, Rule 502, which allows the party to retrieve any documents that were inadvertently produced;

• discovery response — developing collection procedures, considering hiring a consultant for guidance, or contracting with outside vendors to assist with collection, processing, review, and production of the ESI;

• avoiding pitfalls — rather than fearing technology, using it to your advantage, trusting and relying on the “experts” on your team, i.e., paralegals who know the facts, the litigation support managers who know the IT of the production, and vendors/consultants who know a combination of both to assist you in your production.

The second notable presentation was given by Herbert Roitblat, Ph.D., chief technology officer at OrcaTec LLC. Titled “Cost Effective E-Discovery Processes,” it was based primarily on a study conducted by the Electronic Discovery Institute and published in the Journal of the American Society for Information Science and Technology.

Roitblat introduced a methodology of “predictive coding” that can reduce the overall cost of e-discovery by 90 percent or more. The study substantiates Roiblat’s claim by comparing the evaluated relative effectiveness of two computer-assisted categorization systems and two human review teams. Specifically, the study compared an original categorization obtained as part of a response to a Department of Justice request and produced by having one or more attorneys review each document and a production by an automated categorization system.

The results illustrated that machine categorization was no less accurate in identifying responsive documents than human reviewers. Roitblat argued that using “predictive coding” based on these intelligent categorizations can remove a tremendous amount of nonresponsive documents just as easily as human reviewers at a fraction of the cost. This would allow legal counsel to spend the time and utilize their most skilled attorneys to conduct the substantive review. He advocates using conventional e-discovery methods such as culling, de-NISTing (getting rid of system files such as “.exe” and other extensions during processing), deduping (getting rid of exact duplicates of documents), near duping (getting rid of near duplicates) and sometimes “key word searching.” He argues, however, that predictive coding is far more reliable than this method. Using the above, in conjunction with predictive coding, can reduce 1.3 terabytes of ESI to 30 gigabytes for review, at a fraction of most “per gigabyte” or other pricing models.

Companies can learn how to empower themselves by avoiding the landmines of e-discovery and by exploring other technologies like predictive coding. At the end of the day, as our world becomes more technological, the need for advanced technologies for effective representation will increase as well, together with legal standards and laws.

Kevin L. Nichols is the principal of KLN Consulting Group located in San Francisco.

Weathering the Storm: Using Social Networking Sites to Uncover the Hidden Job Opportunities

Reprinted with permission via American Bar Association Business Law Corporate Counsel eNewsletter, July 16, 2009

By: Pang Ly, Esq. and Kevin L. Nichols1
Some social networking sites (“SNS”) are still in their teenage phase: crushes, gossip, sports stats, and local flavor are their typical posts. Most SNS’ casual approach to communicating is not the standard communication style among lawyers particularly when “communicating” in writing. How then as legal professionals can we appropriately utilize the tool for job searching? By understanding and finessing the social features particular to each SNS, you can effectively use the SNS tools in a focused manner for your own ends. Make sure the social networking you engage in achieves two goals: (1) identifies persons of interest (“POI”) and (2) reveals networking opportunities.

LinkedIn, Facebook, Twitter, and JDSupra are four commonly used SNS which you can easily dabble in and employ for your own purposes including a job search.

LinkedIn is the most professionally focused SNS with its online resume functionality. Anything you would include in your resume and experience section, you can certainly enhance with LinkedIn’s features including showcasing glowing recommendations from colleagues, clients, or past employers as part of your profile. Indeed, you can send an email containing LinkedIn standard text requesting a recommendation or choose to write your own request for a recommendation.

This SNS’s underlying goal is to reduce the “6 Degrees of Separation” by allowing individual members to mine the connections of existing relationships and request introductions to meet potential employers, clients, or other resourceful people. Rather than cold calling companies, etc., LinkedIn facilitates introductions that broaden your contacts. You can easily find people who you went to school with or have worked with and add them to your network. You can easily upload your contacts from other sources such as Gmail or Yahoo. LinkedIn also has job postings, calendar of events, and updates about your contacts so you can keep current.

Practical Tips:
1. Your LinkedIn account should have a professional headshot, detailed resume, solid recommendations, and a careful edit of interests. Employers glean a lot of information from the profile listing, so show off a little and put your best foot forward. Warning: do not get too personal here – save that for Facebook if you want to go there.
2. A useful function of LinkedIn is the contact settings “expertise requests”. This enables you to identify a person as a specialist in their field, and regardless of whether the person is outside of your network, the setting is an excellent icebreaker by facilitating an easy introduction. People appreciate having their knowledge valued and are eager to share about their practice. Once you have identified a POI, then schedule an informational interview. If nothing else, you will make a new friend.
3. Ask a contact to forward your resume to HR. Oftentimes a firm will have an
opening and, instead of blindly sending your resume to HR, LinkedIn can help
you identify a POI in the company. For example, a law firm just posted an
advertisement for a senior associate because the previous one, whom is in your network, was recruited in-house. You ask your contact to forward a detailed introduction to the hiring manager about you and your ability to fill the vacancy. Assuming that their departure was a pleasant one, you have spectacular inroad to a position that no one else would have. 4. Ask for introductions. Really extend yourself and ask your existing contacts to introduce you to POIs. LinkedIn makes it easy to get third parties introduced into your network.
5. Keep track of events or job posting within your area of interest.

Facebook (“FB”) is perhaps the most popular SNS today with many features to keep friends and family current about your life. Individuals can post events, share photos, play games, post relevant articles, YouTube clips, and other video, and create groups for worthy causes or networking. Members are able to update their “status” by sharing their moods or current activity, to which others may comment and respond accordingly. This SNS tends to be less professionally oriented, however, many professionals maintain both a work oriented LinkedIn page and a friends and family/interest group oriented Facebook page. Thus checking out and being open to both SNS provides a way in which to become better acquainted with your professional contacts. FB also has many settings to address privacy concerns; the settings allow you to manage who has what level of access to your personal
information and details of your life which are on display. Manage appropriately!

Practical Tips:
1. By updating your status, you can let your network know that you are looking for a particular opportunity and those who frequently read what is going on in other’s lives, can respond to you with either referrals, connections, or helpful information that you may use to achieve your goals.
2. Belonging to the professional groups, alumni associations, affinity groups, etc., you can learn about social mixers and events that can allow you to meet the right people and open up the appropriate doors for you to walk through.
3. Search for POIs. You may be pleasantly surprised to find that you actually know someone who can put in a good word for you.
4. Look for events posted regarding your practice areas. Even bar associations and groups have FB listing networking functions.
5. Sometimes receiving “friend requests” from bosses or co-workers can be unsettling so please visit http://www.examiner.com/x-11864-Office-PoliticsExaminer~y2009m6d23-The-politics-of-Facebook-friends-from-your-job for some helpful tips.

Twitter is a site that allows individuals to post short, roughly 160 character messages, containing their thoughts, services, needs, feelings, etc. to their “followers” as well as the rest of the universe. This is like sending an instant message to everyone you know and depending on your settings, the entire world. Thus, it has upsides and downsides. Recently, it has grown in popularity due to celebrities such as Ashton Kutcher’s race to beat CNN to 1,000,000 followers, or Oprah Winfrey sending her first “tweet” (message) on her show. Even President Obama tweets!

Millions of people read each others tweets and links to various articles, pictures, and other content on the web. A more focused Twitter for legal professionals is LexTweet which gathers legal tweets. However, it is difficult to measure how effective this tool is with advancing your career as unlike LinkedIn and FB, Twitter is one way conversation. It can help keep you on people’s minds if you use it to provide focused information that they want to see; you can think of it as targeted direct marketing lite.

Practical Tips:
1. Update your status and let your network know that you are looking for a particular opportunity.
2. Keep posts professional because tweets are searchable.
3. For a handbook on how to use Twitter, please visit

JD Supra
JD Supra is a SNS focused on the legal community and allows lawyers to showcase their work product. Its motto is: “Give Content. Get Noticed.” and is intended for lawyers to really highlight their legal acumen and the SNS is a searchable database of court filings, decisions, and articles submitted by the individual members. Employers will appreciate reviewing your work product and evaluating your abilities. This can be used for marketing yourself by reminding people of the client alerts or talks you have given recently. Providing value is key.

Practical Tips:
1. Remember that everything that you post is being “published” and discoverable. That being said put your best article, case or result out there. Prior work is a great way to sell your skills to a potential employer. Remember to keep it current.
2. Identify POIs and make networking connections.
With the working understanding of SNS, make sure to use it in an overall diligent job search.

SNS can be leads on hidden job opportunities and they can also enhance your ability to
positively stand out from other candidates. Here are some great jobs posting sites to get you started, and you just might find that dream job:

1. The Association of Corporate Counsel: http://www.acca.com
2. http://www.lawjobs.com
3. Worldwide Legal directory, see its Law Employment Center: http://www.hg.org
4. The Ladders: http://law.theladders.com
5. Minority Corporate Counsel Association’s job bank:
6. Corporate Counsel Women of Color http://www.ccwomenofcolor.org/
7. http://www.indeed.com
1 Pang Ly, Esq. is a founding member and current President of the Society of Asian Women Leaders (SAWL) and President & CEO of Legal Presence LLC. Kevin L. Nichols is President & CEO of KLN Publishing, LLC. The information in this article is a general description of social networking sites and is not intended to provide specific [legal] advice nor is it intended to create an attorney-client relationship. Because of its generality, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Printed with permission of Pang Ly, Esq. and Kevin L. Nichols. Copyright ©2009. All Rights Reserved.