#ediscoveryexperts

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.

Our team just had a great experience at LegalTech in New York where we talked about our solutions for eDiscovery problems with visitors to our booth. We're excited to be back here blogging about what's new, and sharing tips and best practices with all of you. So, what's new?

BIA announced the release of new real-time features to its flagship, cloud-based TotalDiscovery solution. With the introduction of these new features, customers will be able to move through the entire eDiscovery process more quickly and efficiently thanever before.  Read the entire press release here.

BIA also announced the impending release of new HTML5-based document viewers for TotalDiscovery.  With this release, customers will be able to view a wide variety of data types directly within TotalDiscovery without the need for additional software, viewers or other plug-ins.  Read the entire press release here.

This week’s blog contributor is Barry Schwartz, Esq., CEDS.  Barry is VP of Advisory Services for BIA.

Today, one can get lost with the ever-growing list of acronyms associated with “bring your own device” (see table of acronyms below).  Regardless of your BYOD implementation choice, one overriding notion exists:  Have a written policy that addresses your choice and have it acknowledged by each participant.  The policy must spell out expectations from both sides:  yours and the user’s.

Components of the policy include:

A summary of your implementation choice.  There are three basic strategies for BYOD implementation:  strictly business only, walled garden, and limited separation. 

User obligations in the event of an eDiscovery need.  Clearly stated, if the user is identified as an individual placed on a legal hold, the user must preserve all data on the device and promptly make the device available for collection/preservation, if requested, with recognition that personal information or data stored on the device may be collected along with any business data given the nature of such devices.

Expectation of privacy.  The policy should clearly state there is no expectation of privacy if one is using a device for business purposes even if that purpose is comingled with personal information and personal usage. 

Form of the policy.  In writing that clearly discusses what is acceptable use and what is not. 

Acknowledgment of the policy.  The user should acknowledge the policy in writing or by an acceptable electronic method.

Implementation choice has a significant impact on your written policy:

A “strictly business” selection is perhaps the easiest to implement from an employer’s perspective.  All business all the time: it is our device and we can do what we need to with it at any time and you pledge to cooperate.

The “walled garden” approach is similar on the business portion of the device, whether the device is partitioned or has strictly business-only applications functioning alongside personal ones or business applications where data is not stored locally on the device (cloud or virtual applications).  Here, the privacy implications must be clear in the policy.  Even though use of the device is segregated (business from personal), it is generally not possible in an eDiscovery collection to only capture business use data.

The “limited separation” is as it sounds.  Some use of the device is business oriented, while some is personal.  Applications on the device may be used for business or personal purposes.  Regardless of the use, the written policy should state that while it is recognized that you are using the device for both personal and business purposes, you understand that if called upon due to some business reason (litigation, investigation, regulatory requirement, etc.) you will cooperate and make the device available for inspection and/or preservation as requested.  The policy should further state that it is possible the device may be unavailable to you for some reasonable time period to allow for the inspection or preservation to occur.

A clear written policy reflecting your BYOD implementation, or not (COBO), will provide a framework for your company or organization that gives clarity and sets expectations for your users as personal device use expands to an ever-greater level. 

Here is one statistic that will help in recognizing the importance of such a policy: the rate of employee implementation of their own devices is approaching 40%; in the next 2 years it is expected to grow to over 80%.

Today's blog is from Alan Marks, Senior Vice-President of Product at BIA.

If you are a regular reader of this space, you may have noticed that it’s been a long time since I’ve posted a blog on new / upcoming features. Well, that’s because our development team has been deeply engaged, spending gobs of time bringing you THE NEXT REALLY BIG thing in TotalDiscovery. In fact, it may even be the next big thing in eDiscovery! And now, the time is getting so close, I’m jumping up and down as I type this blog post!  But it’s not quite time to spill all the beans, and so I can only tell you that SOMETHING BIG is coming. 

  Anyway, I’m allowed to give you one hint, which you may have picked up on, it’s about that most precious commodity, time. Ya know how minutes turn to hours, hours turn into days, days turn into…well, you get the idea. So, we’re going to do something about that (and nope, it doesn’t involve wormhole travel).

  When? Hmm, can’t tell you that either, but there is this big legal technology conference coming up in New York in February….

  Want to get an early preview? We’re still working out the details, but if you want to be one of the first to see, just let me know at [email protected].

  OK, that’s all I can say. Keep tuned to this space.

Alan Marks

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

  Recently we wrote about how proper Preservation & Collection efforts can serve as the “silver bullet” to any eDiscovery data spoliation claim  Now let’s talk about how targeted collections will, without question, save larger organizations millions of dollars.

First things first, if your organization is still forensically imaging entire hard drives in response to civil litigation, you probably need to stop doing that right now.  Hard drive imaging in legal matters is a practice that arose from essentially replicating what law enforcement did with computers in criminal matters, but it’s clearly overkill in civil matters.

When law enforcement wants to obtain digital assets, they get a warrant and generally seize everything in sight.  With rare exceptions, that just doesn’t happen in civil matters – and it shouldn’t.  But, speaking conceptually, if you are imaging hard drives, that’s basically what you are doing – taking every digital asset in sight, regardless of whether it will ever be useful in the litigation.

Another way to think about it is to compare collecting digital information to collecting paper files.  You would never go into your client’s office and blindly copy every piece of paper from every filing cabinet, desk drawer, garbage can and shredder, right?  Of course not!  You’d speak to the employees (a.k.a. custodians) and find out where the relevant information is most likely to exist, and target your paper collections to that.

Your approach to digital collections should be no different.  Just like you wouldn’t blindly copy every piece of paper in sight, you shouldn’t blindly copy every hard drive and other digital asset in sight.  Instead, you should target your data collections to that data most likely to contain relevant information – the user created data files.  That is not only defensible, but it can have a surprising impact on your costs, not to mention data security.

The first place you will see savings is in your costs for the data collection process itself.  Forensic imaging is much more disruptive and costly than targeted collections.  With forensic imaging, you often have to pay for expert services, or at the very least, the two-way shipping costs of remote forensic imaging solutions.  In addition to that are the soft costs that often include hours of employee disruption (and the loss of revenue and productivity tied to that) and the general apprehension caused by the entire process. 

Juxtaposed to that are targeted remote collections that have very little impact to employee productivity (usually 10-15 minutes), and generally no costs beyond a simple, low flat fee.  With our TotalDiscovery solution, the employee gets an email, clicks a link, walks through a brief wizard, and voila, the employee’s user data is identified, forensically copied and encrypted, and uploaded for processing and review – simple, fast and remarkably affordable.

Beyond the immediate direct costs of the collection is the sheer size and scope of the data leaving your organization with forensic imaging, which has both data security and cost implications.  It’s axiomatic that the less data leaving your organization, the better.  With forensic images, you can expect well over 250 GB per custodian, including all sorts of data you and your users don’t even really know about (including deleted data, partial file data and much more).  Compare that to an average of around 10 GB of user-created data being collected with a targeted data collection process, and the differences are readily apparent.

In short, if you are using forensic images as your collection method, it’s likely that more than 95% of what you are collecting will be trash.  Again, it’s like collecting every single piece of paper, only to decide later that the vast majority can be discarded.  You would never do that in the paper world, so why are so many organizations doing it with digital data?  Sure, it can be easy to just copy everything, but just because something seems easier, doesn’t make it right.

Of course, the more custodians you have, the more this issue becomes critical.  For example, if you have a case with 50 custodians, using forensic images means that you’ll end up with around 12 TB or more of data as your starting point, while targeted collections will result in probably about 500 GB.  Even if your eDiscovery vendor gives you a “cheap” option for culling those forensic images, it’s still wasted money – and often more important – a lot of wasted time.  And ask your CIO or IT manager if s/he is more comfortable with 500 GB leaving the organization or 12 TB – although, you probably already know the answer to that . . .

Now, as usual with any legal issue, there’s one caveat.  If you are really investigating some activity, dealing with a matter that has actual or even potential criminal ramifications, or you need to access deleted files, then a forensic image may be more appropriate.  But absent that – and the vast majority of data collections done for civil litigations fall outside those rather limited exceptions – targeted collections should be your default collection method.