#ediscoveryeducation

This week’s blog is from BIA President Brian Schrader  

Unless you have been stranded on a desert island for the past several years, you’ve undoubtedly seen countless articles, whitepapers and even court opinions discussing how Technology Assisted Review (TAR) has changed – and continues to change – the eDiscovery landscape.  Indeed, it’s not just our industry but the entire world that is seeing incredible leaps and bounds in artificial intelligence, from self-driving cars to advanced analysis engines that can pour over thousands of data points to help speed and improve medical diagnosis.

Yet, more and more, we’re hearing about how humans still matter, and in fact, how humans often make analytics better.  In January, the New Yorker reported on how Netflix uses pretty amazing analytics to help determine what new original programming to develop (it’s truly a fascinating read).  But even with the sea of data Netflix analyzes, the final decisions still factor in a heavy dose of human analysis, namely in the form of Netflix’s CEO Ted Sarandos.

In his book The Signal and the Noise: Why Most Predictions Fail – but Some Don’t, author Nate Silver discussed how the National Weather Service has tracked and compared computer-only weather predictions versus those where humans review and contribute to those computer models.  The results, Silver reports, show that humans actually improve the accuracy of weather forecasts by up to 25% over computer-only predictions.

Just today, Wired reported on how the automotive supplier Delphi just completed a cross-country, 15-state, 3,400 mile test of a self-driving Audi Q5.  The article points out how quickly the technology is improving by contrasting that feat with a 2004 DARPA test where even the best self-driving car was only able to complete less than 8 miles of a 132 mile course, and that car got stuck and caught fire.  But even with such an amazing pace of advance across all industries, it’s still unlikely that we’ll completely be able to eliminate the driver anytime soon.  Even if and when we could potentially do so, it’s highly likely that humans simply won’t give up that x-factor that is the human element.

These lessons are not so different than those being learned by the legal industry when it comes to Technology Assisted Review.  Back in 2008, when there weren’t great commercial TAR solutions available, we created our own TAR solution with exactly that in mind – keep the humans, with the whole of their knowledge, expertise and experience, at the center of that solution. By doing so, we saw how combining knowledgeable, experienced experts with the latest and greatest analytics resulted in a better outcome than either could accomplish alone.

The overriding point across all of these experiences seems to be that, while analytics continues to advance by leaps and bounds, and improve (or at least impact) nearly every portion of our lives, we must not forget the crucial role that humans have played, and will likely continue to play for quite some time, in ensuring that the answers that come out of the black box du jour are the best and most accurate possible.  

Time flies when you're having fun!  On February 19th, we kick off our webinar series for 2015 with guest speaker and national expert Craig Ball, Esq. (details below).  This presentation will mark the 70th program presented in our industry-acclaimed Knowledge Leadership series of webinars and Private Briefings, with nearly 10,000 professionals attending these events.  The feedback from our attendees drives our agenda, and we invite you to check out and register for one or more of our upcoming webinars on our education page located here. As always, our programs arecomplimentary.    

An Ounce of Preservation is Worth a Pound of Cure: Top Tips for Preservation!

Date: 2/19/2015

Time: 1 PM Eastern / 12 Noon Central

We are kicking off our 2015 Knowledge Leadership Series of webinars with a bang. Joining us this month is national expert and speaker Craig Ball, Esq., joins Alon Israely, Esq., CISSP in a discussion of the latest issues and best practices for preservation.

A Legal Event Response Team is a group of key individuals, both inside and outside of an organization, that is tasked with preparing for, evaluating and managing an organization’s response to legal events, including litigations, regulatory investigations and other similar actions.  The Team is generally headed by the organization’s General Counsel or other senior management person and usually includes members from I.T., H.R., outside counsel and outside consultants or service providers.  Each of those members play a pivotal role in ensuring the Team has every aspect of the process covered.

The most effective Teams create a Legal Event Response Playbook (or eDiscovery Playbook) that provides clear and comprehensive guidelines and checklists that should be followed any time a legal event takes place.  From how to identify custodians and issue legal hold notices to taking steps to suspend automated data destruction policies and preserving, collecting and culling ESI, the Playbook should cover the entire process from beginning to end. 

While creating a Team and Playbook may seem like a large commitment, the reality is quite the opposite – and indeed is much less time and cost than required to handle each legal event ad hoc.  While it may take time for the Team to create their eDiscovery Playbook, the ROI on that effort can be surprising as costs generally plummet when the process is standardized across all legal events. 

Moreover, once created, it takes very little ongoing commitment to maintain.  We recommend that the Team meet quarterly or semi-annually to review, and if necessary revise, the Playbook to account for any modifications to internal systems and processes or changes in applicable laws or regulations.  When done right, the Team and the Playbook will help an organization drastically reduce its costs – and the frustrations – that too often define eDiscovery today.

What is CEDS?  The Certified eDiscovery Specialist examination is an independently administered examination which covers several major areas of the eDiscovery process including functions of project management, document review, preservation, data interrogation and budgeting.    It is a comprehensive, exhaustive examination that can take up to four hours to complete.   This test was meant to “separate the wheat from the chaff,” and when a professional presents themselves as CEDS certified, there is no doubt their knowledge of the eDiscovery process has been thoroughly tested.

We are fortunate at BIA to have executive sponsorship for the CEDS certification.  Our leadership takes the position that not only should we share our knowledge with the community (which we do via our Knowledge Leadership series of programs), but we should also continually educate ourselves and sit for those industry certifications that confirm our level of expertise such as the CISSP (Certified Information Systems Security Professional), CCFS (Certified Computer Forensics Specialist), and CEDS.

Several of BIA’s staff hold the CEDS certification including Adam Feinberg, Barry Schwartz, Esq. Daniel Rivera, Daniel Hardy, Lisa Prowse, Esq., Mark MacDonald and … as of August of this year, I joined my honored brethren as the newest CEDS certified member of the BIA team.  I thought it would be fun to devote our blog this week to this subject, and asked some of my team mates to share their thoughts about the CEDS test with you:    

Adam Feinberg, CCFS, CEDS, SVP Professional Services: "It was probably one of the hardest certification exams I have taken. It requires, IMHO, not just knowledge in the core domains, but also practical experience in those areas. A person who holds this certification, knows their stuff."

Barry Schwartz, Esq., CEDS, VP Advisory Services:  "Having taken the multi-state Bar exam quite a number of years ago, CEDS exam brought back less than fond memories!  It was a rigorous exam that in order to pass, requires excellent knowledge of both the various rules of evidence and procedure, but a deep understanding of the real world, only gained from hands-on experience.  One who has passed the exam and earned the certification certainly holds a credential that indicates mastery of the eDiscovery domain."

Daniel Hardy, Project Management:  "The CEDS examination was very challenging. It tried the test-taking skills developed in college, as well as all of the industry understanding learned over the years. Taking the exam brought to light how much I had to learn, but passing it validated knowledge previously gained. Litigation Technology professionals who pass this exam are well versed in eDiscovery."

And speaking for myself, I felt that the CEDS exam was an exhaustive test with a multitude of fact patterns to analyze and respond to appropriately.  I have no doubt that when someone tells me they are CEDS certified, that they have a deep understanding of eDiscovery and the processes surrounding the functions of project management, document review, preservation, data interrogation and budgeting.  It brings value to our client just as forensics and security certifications such as CISSP, CCFS do.  It confirms that our understanding of eDiscovery has been independently validated through a rigorous and detailed test.

For more information on ACEDS and the certification, visit the ACEDS website at www.aceds.org.

Robin Athlyn Thompson, CEDS

VP Marketing

This week's blog contributor is Brian Schrader, Esq., President of BIA.

During our numerous webinars and seminars on Legal Hold topics, there’s one point that often raises eyebrows more than any other: Issuing Legal Holds to Third Parties.  While it may seem like a limited or relatively novel topic, in the modern world of cloud storage, mobile devices and BYOD policies, not to mention the increase in freelancers, subcontractors and consultants, that exact issue is starting to get litigants into hot water more frequently – and often quite unexpectedly.

The underlying concept is pretty clear, but it’s often overlooked by litigants when it comes to third party resources.  FRCP 34(a)(1) clearly states that a party is responsible for all information in its “possession, custody or control…”.  It’s that last word that trips up most litigants (and their counsel). 

While many think that data in the possession of third parties is out of their control, the contracts with those parties often state just the opposite.  Indeed, in two cases – one dealing with a subcontractor and one dealing with technology provider – both came down to what the contracts provided.

In Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012) the Court, relying on contract provisions that defendant had put in its own contracts with its subcontractors, held that defendant had to assert a litigation hold on its present and former independent title agents because those contracts specifically stated that all work product created by those third parties was the property of the defendant – thus, they were in control, if not possession, of that information. 

The second case, Brown v. Tellermate Holdings, Ltd., 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014), has been used most often to highlight cloud data collections, but as we recently wrote in a blog focused just on this case, it too involved a question over who owned data stored in a third party cloud application (specifically, who owned Tellermate’s data that was in Salesforce.com).  While Tellermate’s counsel argued that the company had no control or ownership of the date, the Salesforce.com Master Subscription Agreement clearly stated otherwise, and Tellermate was sanctioned for not preserving the data that was clearly – and by explicit contractual terms – in Tellermate’s “control”.