Orange Legal Technologies recently posted their “Pricing Estimation Tool” on their Website which is an excellent tool that provides at least a framework for estimating the costs in e-discovery projects today. As far as I know, this is the only e-discovery vendor to offer any kind of tool like this, and I applaud Orange for doing so.

One of the most common complaints I hear from attorneys and litigation support professionals is that it’s so incredibly hard to get an accurate cost esitmate from vendors because everyone prices on different terms and models. Orange’s Pricing Estimation Tool may not be perfect (and perhaps a little biased towards their own services), but at least it’s  start.

The Webinar features my good friend Tom O’Connor who will most certainly provide a balanced and experienced voice on the topic.

Register for the Webinar at http://orangelt.us/2008/10/05/comparing-apples-and-oranges/.

But first, Judge Grimm took a few moments to discuss the process and effects of Federal Rule of Evidence 502 since he was so instrumental in it’s creation and eventual passage.

First, Judge Grimm stated that the new FRE 502 now completely eliminates the uncertainty as to the standard of waiver. Previously, depending upon the jurisdiction, you were either under a strict test, a more lenient (voluntary) test, or an intermediate reasonableness test. The substantive law in Maryland followed the intermediate reasonableness test, and that is what FRE 502 follows. Judge Grimm pointed out that FRE 502 is NOT restrictive to electronic evidence, unlike some of the amended Federal Rules of Civil Procedure that are only applicable to electronically stored information.

Judge Grimm continued that with FRE 502, we now have a unified standard that deals with privilege or work-product information which is an enormous benefit.

Judge Facciola then asked the question to the audience: “In light of FRE 502, how many of you STILL review every single piece of paper?” Over 3/4 of the room raised their hands and Judge Facciola pressed as to why. One audience member stated that there are some documents that you just don’t want the other side to see - it looks like a vulnerability, a chink in the armor. Laura Zubulake spoke up and confirmed this fear and stated that as a prior plaintiff, she would have been thrilled to see a document from the other side that was beneficial to her case, saying, “once it’s in my brain, it doesn’t go away.”

Another other audience member answered Judge Facciola by saying that it wasn’t a privilege issue, it was more about the fact that he just really wants to know what’s in the collection of documents - if the client can’t tell him, he doesn’t feel that he’s doing his job unless he thoroughly inspects every document in the collection to know what’s there.

Judge Hedges predicted that it will take at least 5 years before there is a general comfort level with FRE 502. Another audience member mentioned that a large corporate client has told him NOT to review every single piece of paper - that they would not pay for the time spent on such a review. The client didn’t think there was anything inside the document collection that would hurt them.

Judge Grimm then changed directions a bit and stated that the notion of a pre-litigation duty to preserve is a big concern for him. He believes that the duty to preserve is based on the same standard of proportionality found in FRCP 26(b)(2)(C). Judge Grimm fervently reminded the room that the duty to preserve is a COMMON LAW PRINCIPLE and is NOT a duty created by the court. He stated that it is a common law rule, and if you want to further define the problem, you should propose an FRE 503 rule or something similar. He continued, “you don’t NEED a court order [for preservation] because it’s a common law rule.”

Judge Grimm asked the room: “By a show of hands, how many of you say that preservation costs are the biggest burden today?” Over 3/4 of the room raised their hands. One audience member who works at a large New York City law firm and represents large corporations stated that they will continue to over-preserve because of their fear of sanctions similar to that found in the Qualcomm case.

The panel ended with repeated advice to TALK to the other side about discovery. They all repeatedly iterated that so many issues could be solved in the discovery phase if both sides just agreed to cooperate and became more open about their systems, and what they wanted to request. Judge Grimm mentioned his just authored opinion, Mancia v. Mayflower, which covers the topic of cooperation (Ralph Losey, another speaker at The Masters Conference, already has a great write up of the opinion).

Judge Facciola is a Magistrate Judge for the U.S. District Court - District of Columbia and has authored such sacred e-discovery opinions as:

• Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007)
• United States v. O’Keefe, No. 06-249 (D.D.C. Feb. 18, 2008)
• Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. March 7, 2008)
• Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)

Judge Facciola was introduced by Dan Regard of iDiscovery Solutions, Inc.as the “Italian Stallion of E-Discovery” and it appeared the Judge Facciola didn’t mind the name tag one bit. Judge Facciola launched right into a very insightful and entertaining hour long speech with a healthy dose of interaction with the audience.

Right off the bat, Judge Facciola mentioned he could not get into too many specifics about the O’Keefe matter since it was still pending. But he stated that he wanted to talk specifically about “leadership” in the e-discovery world, starting with the road leading up to the recently enacted Federal Rule of Evidence 502.

Judge Facciola mentioned the the enactment of FRE 502 was an “astonishing achievement” and assured the entire room that the States will follow in line, amending their own local rules of evidence.

He then shared his amazement with the virtually unlimited amount of storage available to the average consumer. Judge Facciola admitted that he is a big fan of Bruce Springsteen, and he recently purchased a 1TB external hard drive for $200 to hold his ever-growing collection of The Boss’s music. He commented, “if I can buy a 1TB for $200, imagine what Oracle can buy. These things [hard drives] are collecting information and almost defeating our intention to find out what’s on them!”

Judge Facciola said he regularly talked to people that help the lawyers like federal agents that collect information and they constantly bemoan the fact that they have no guidance whatsoever from the lawyers except “save everything.” These folks do not know what the record policy is, and they complain that when it hits the fan, the lawyer just comes down to their cubicles and says “give me all those evaluations.” Judge Facciola commented that “it’s hard to believe there is such a dereliction in our society about collecting and preserving information.”

Judge Facciola continued stating that “a lack of a records policy, combined with a lack of sensitivity to the problem, creates a perfect storm,” which has become evident in cases like Qualcomm. “Lawyers do not now have the luxury of waiting until everything goes wrong to get involved. The corporations need to make decisions NOW pursuant to lawyer guidelines. If this is not done, I’m afraid we’re going to be entering hopeless litigation with tools that are useless.”

Judge Facciola also stated that he hears time and time again from internal corporate counsel that they are treated like “file clerks.” They do not receive respect from their outside counsel and state that representations are routinely made to the court behind their backs, often about issues and information systems that are internal at the corporation.

Judge Facciola states that “this relationship cries out for leadership. It is not right for clients to be passive in this situation. Someone has to be responsible for clear lines of authority. Budgets must be stuck to, and reviewed on a monthly basis.”

Judge Facciola recounted a story when a lawyer appeared before him representing someone who had been “caught” by an FBI agent posing as a 12-year old using an instant messaging program. Judge Facciola asked the lawyer if the instant messaging session was logged. The lawyer replied, “your Honor, I don’t really understand all this computer stuff.” Judge Facciola first expressed sadly that they’re not allowed to hit counsel in the court room, but did say that he stopped the proceedings, called the lawyer over this his bench, and stated, “do you realize you just admitted that you are ineffective counsel on record?”

Throughout the keynote, Judge Facciola interacted with the audience, asking questions and taking a few towards the end. One of his last questions was if there were any ideas on how to modify FRCP 56(f) on Summary Judgment so that both sides can get more discovery to help move the issues along. No one raised their hands.

I’m obviously capitalizing on a popular upcoming Fall holiday, but I detail the important differences between a forensically-sound “image” of a hard drive and a “Ghost” copy.

Link to article.

• Shawnna Childress from Women in eDiscovery
• Christina Ayiotis from Computer Sciences Corporation
• Laura Zubulake
• Lisa Marie Ghezzi from The Dealy Strategy Group LLC
• Darcy Spruance from Kilpatrick Stockton

Ms. Zubulake started off the panel and immediately captivated the entire room. Ms. Zubulake walked the audience through the ups and downs of her three year ordeal in the Zubulake v. UBS Warburg case.

Ms. Zubulake emphasized that her case was not about e-discovery, but the gender discrimination she experienced while working for UBS Warburg.

She then sought to dispel a few myths about her case. She stated she has read many articles about her case that claim the adverse inference instruction was a prominent factor in the jury decision in her favor. She said this was not true and follow up interviews with jury members confirmed that they were swayed more by the e-mail evidence found in the backup tapes. (Sharon Nelson over on her Ride the Lightning blog discusses this a bit as well.)

Ms. Zubulake admitted that the decision to actually file her claim in February 2002 was one of the hardest decisions of her entire life. She greatly enjoyed her job, and begged her superiors to transfer her many times before her termination.

Discovery for the Zubulake case started in June 2002 and went through October 2004. Ms. Zubulake expressed her exasperation with the length of time that it took for discovery saying that some of the most important and relevant evidence was not even produced to her until early 2004.

Ms. Zubulake believes that the first decision was the most important opinion of all since it gave her the authority to search for e-mails which she knew were absolutely crucial to discovery.

Ms. Zubulake described how active she became in her case, even becoming a senior member of her legal team. She personally selected the five individuals (custodians) to search because she stated that she was in the best position to actually know what happened and who was involved.

Keywords became a very important aspect of her search and she mentioned that she now regrets she was not more “creative” in her keyword selection because she believes that she could have potentially found more relevant information.

The other panelists provided some interesting insight into various corporate e-discovery viewpoints, but all of them had a special word of empathy for Ms. Zubulake. Likewise, the audience had several questions for Ms. Zubulake that were delivered with a lot of respect.

In law school, we are taught to leave emotion out of our legal analysis. And while I know the Zubulake opinions backwards and forwards, and I’ve heard numerous people opine on the merits and facts of the case, hearing Ms. Zubulake tell her side of the story forced me to consider the impact of the case on a real person, rather than simply use the case as a ubiquitous guide for corporate e-discovery.

Ms. Zubulake detailed that she was un-employed for the 3 years during her case, and as a result “didn’t spend a dime” on anything. She mentioned the support of her mother throughout the ordeal, who was a legal secretary for many years.

And most telling for me personally, was hearing about the “technology” that Ms. Zubulake used during her case. She recounted that e-mails would be produced to her lawyer in hard copy. She would go to her lawyer’s office, make copies, and then take them home to her Dell computer to type information from each e-mail into a large Excel spreadsheet. She recorded information such as Bates number, author, recipient, cc, bcc, subject, body, etc. This was her document database/index and she mentioned that it helped tremendously when her legal team needed to pull up a particular document. And because she actually typed everything into the spreadsheet herself, Ms. Zubulake commented that she basically memorized every aspect of her case, and thus became the most valuable resource for her team.

Another telling comment from Ms. Zubulake: “Thank god for the Internet - that’s where I learned, and downloaded case law.”

One last question to Ms. Zubulake asked if there was a time she would have given up the fight. Her response that there were some down times; it was “not a perfect litigation, but I don’t have any regrets.”

• John Woods from Hunton & Williams LLP 
• Jeane Thomas from Crowell & Moring
• Julia Brickell from H5
• Dan Regard from iDiscovery Solutions, Inc.
• Gary Hayden from iDiscovery Solutions, Inc.
• John Rosenthal from Howrey LLP

The panel shared thoughts and best practices on developing search strategies for electronically stored information.

In my opinion, the real excitement came when an audience member asked the panel to name the tools they successfully use to achieve some of the best practices they were espousing. The panelists were understandably hesitant to name names in the presence of other vendors in the room, but relented and named some well-known vendors like Clearwell, Kroll Ontrack, Cataphora, Catalyst and the IDOL platform from Autonomy.

Towards the end, the discussion was directed at how to successfully work with corporate clients. One panelist lamented that corporate attorneys are sometimes pushed into using specific technology tools from the company’s IT department and those tools may not always be the best from a legal standpoint. An audience member reiterated the point stating that a corporate legal department has to answer to a lot of different departments and competing concerns at the corporation.

Next up was a panel entitled “Trends of the Financial Banking Services Sector” with Linda Riefberg from the Financial Industry Regulatory Authority (FINRA) and Laura Zubulake herself from the infamous e-discovery opinions.

I didn’t quite know what to expect from this panel, but FINRA’s Ms. Riefberg made some excellent points on e-discovery from a regulatory standpoint.

When Ms. Riefberg investigates a broker or securities trader, she goes through much of the same discovery process that we’re more used to seeing in the civil litigation context, although Ms. Riefberg pointed out that discovery is much broader in her investigations.

The biggest takeaway from her presentation is that just like in civil litigation, e-mail always holds the most damning evidence. And in her case, it’s almost always the personal e-mails that employees are sending to their family, friends, and outside acquaintances regarding inside trading or illegal financial tips. Ms. Riefberg stated that what is really incredible is that the broker houses are keeping these personal e-mails even though they only have a duty to keep official business records. But because they are kept, they are fair game for her investigation.

Laura Zubulake stated that in this session she was not going to discuss her famous case (that came later in the day) and proceeded to educate the audience on the simple basics of derivatives. Her point was that attorneys truly need to understand the language used by brokers and traders if they plan to appropriately and successfully represent such clients.

During the audience discussion period, Ms. Zubulake did make one telling comment:

… let’s not forget that “e-mails are written by people, and when markets collapse, people panic.”

Mr. Owen started off by telling a bit of history of how the survey got its start, and then proceeded to share some of his thoughts on the results (some of which were covered by Monica Bay on the EDDUpdate blog).

Mr. Owen spent some time on instant messaging (IM) reciting that 54% of the survey respondents stated that they allowed IM on their internal systems, mainly because they viewed IM as a productivity tool and enhancer. Some respondents logged IM activity while others did not. Mr. Owen noted that 24% of the respondents allow employees to attached documents and files to IMs, which favors the argument that instant messages are business records.

Over the last 3 years, Mr. Owen revealed that respondents have actually seen a dramatic reduction in e-discovery related disputes. Eighty-six percent of respondents reported that they rarely encountered an e-discovery issue, and 2/3 of respondents said they’ve never encountered an e-discovery issue.

On the topic of off-shore document review, Mr. Owen stated that only 2% of U.S. respondents have used off-shore document review services. Of those, 60% stated they were “somewhat satisfied” with the service, while the rest were “very satisfied” with the service.

I also plan to Twitter the events through my ediscoveryinfo Twitter account which will allow me to post short, frequent reports on the sessions as well as link to pictures taken at the conference. If you don’t already have a FREE Twitter account, just sign up and click the “Follow” button on the ediscoveryinfo page. (And if you’re interested in e-discovery news, be sure to also Follow the complexd Twitter account from Orange Legal Technologies.)

Tonight I got to briefly attend the “Kick-Off Party” hosted by Dan Regard of iDiscovery Solutions at his Dupont Circle home here in Washington D.C. I was able to say hello to Robert Childress of Wave Software, catch up with Kevin Carr of InterLegis, and generally rub shoulders with many of the speakers and participants at the conference.

The Conference starts tomorrow morning with a keynote address from Robert Owen, partner at Fulbright & Jaworski, LLP, as he details the findings from the just released Fulbright Fifth Annual Litigation Trends Survey.