Wireless Access Code:
9166703926
eDiscovery
A Path to Scale the Matterhorn of
Data and Rules and Come Out On Top
Progress
Progress
• 2003 – Chaos
• 2006 – Federal Rules
– Visibility for eDiscovery
– Need for education
• 2005-2012
– EDRM – common language
– Standards
– Guidelines
– Resources
Participation: 2005-2012
250+
organizations:
• United States
• Europe
• Asia/Pacific
1000+ individuals:
• Broad spectrum of eDiscovery
practitioners
• E-discovery service & software providers
• Law firms
• Corporations
• Individuals
• Industry Associations
• Educational Institutions
Participant types:
EDRM in 2012
The Move to the Left
Processing
Preservation
Information
Management
Review
Identification
Collection
Analysis
Production
Presentation
The Move to the Left
Processing
Preservation
Information Management
Identification
Review
Collection
Analysis
Production
Presentation
The Move to the Left
Bridging the gap between
IT, Legal, Compliance, and RIM
Contact information
Tom Gelbmann
Gelbmann & Associates, LLC
290 Grandview Avenue West
Roseville, MN 55113
(651) 483-0022
www.gelbmann.biz
http://edrm.net
http://www.apersee.com
Litigation Support:
Bridge Between IT and Lawyers
 Early Interpretation of EDRM
 IT Emphasis = Left Side
 Legal Emphasis = Right Side
 Emphasis Has Shifted Left for Everyone Involved
 Identification
 Preservation
 Collection
Identification
 When Litigation is Imminent...
 Identifying Relevant Data Sources AND Rule Out
Non-relevant Data Sources
 Process Entails a Series of Interviews (IT Staff,
Custodians, Legal Team, etc…) and Data Mapping
 End Goal is to Prepare a Defensible Collection
Action Plan
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Preservation
 Pension Committee v. Banc of America, 2010 WL
184312 (S.D.N.Y. Jan. 15, 2010)
 Failure to issue a written litigation hold;
 Failure to ease routine deletion of e-mail;
 Failure to collect ESI from key people;
 Failure to collect ESI from retained files of ex-
employees; and
 Failure to preserve back-up tapes if only source of
relevant information
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Litigation Hold: The Duty to Preserve
“A litigant has a duty to preserve evidence that it
knows or should know is relevant to imminent or
ongoing litigation.” US ex rel. Koch v. Koch
Industries, Inc., 197 F.R.D. 463, 482 (N.D. Okla.
1998)
“Once a party reasonably anticipates litigation, it
must suspend its routine document
retention/destruction policy and put in place a
‘litigation hold’ to ensure the preservation of relevant
documents.” Zubulake v. UBS Warburg LLC, 220
F.R.D. 212, 218 (S.D.N.Y. 2003)
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Preservation – What Not to Do
 Pringle v. William Adams, Jr. et al., SACV10 - 1656
JST (C.D. Cal 2010)
 Applicable in More and More Cases
 Sanctions
 Adverse Inference
 Case Dismissal
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Collection
 Self-collection – The Fox Guarding the Hen House?
 Green v. Blitz U.S.A., Inc, 2011 U.S. Dist. (E.D. Tex.
2011)
 Develop a Plan to Demonstrate Good Faith
 Enlist Good Vendor Assistance
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Why Such a BIG Deal?
 Reduce Risk Exposure
 Maximize Successful Lawyering
 Lack of In-house Expertise Translates to
Dependency on External Vendors and Associated
Costs
 Impact on Legal Staff Resources to Handle EDiscovery
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Trend Tracking - The Judiciary and
the Rules
 Trends Resulting in Modifications to Both Process of
E-Discovery and How Rules will be Shaped
 Five Years Ago - E-mail Biggest Challenge
 Today - Cloud Computing and Social Media
 Tomorrow - ?? - - Make Way for New Technology
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Cloud Computing
E-Discovery and Social Media
E-Discovery and Social Media
 Crispin v. Christian Audigier,
Inc., 717 F. Supp. 2d 965
(C.D. Cal. 2010)
 Stored Communications Act
(“SCA”) 18 U.S.C. Section
2701 (a) (1)
 Courts face challenge of
balancing intent and wave
of new technology
Predictive Coding
 Automated process that culls through electronic data
and focuses on non-keyword attributes such as
context or word frequency
 “Computer-assisted review is not a magic, Staples-
Easy-Button solution appropriate for all cases. The
technology exists and should be used where
appropriate.” Da Silva Moore v. Publicis Groupe et
al., 11-Civ.01279 (S.D.N.Y February 24, 2012)
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Judiciary Involvement
 Federal Advisory Committee on Rules of Civil
Procedure
 7th Circuit E-Discovery Pilot Program
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7th Circuit
E-Discovery Pilot Program
 Established in 2009
 Mission - Develop Pre-trial Litigation Principles
Governing E-Discovery to Reduce Cost and Burden
 Phase One
 October 2009 - March 2010
 Phase Two
 May 2010 - May 2012
 Phase Three
 In Progress
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Recommended Steps
 Establish a Unit Focused on Office-wide Support
 Educate Attorneys, Paralegals, Client Agencies
 Foster In-house E-Discovery Workgroup
 Legal
 IT
 Build In-house Capacity
 Identify Qualified Vendors for Advice and Support
 Research and Leverage Tools for Success
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Contact information
Lynette Vann
Manager, Southern California
Litigation Support
California Office of the Attorney General
213.897.7594
Lynette.Vann@doj.ca.gov
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LexisNexis® E-Discovery Solutions
Gain greater control over your cases with flexible, integrated software
and hosting options.
Flexibility
•Benefit from products that work together easily, helping you achieve more efficient,
effective investigation, analysis and collaboration.
•Integrate with third-party software applications, if desired.
•Maximize your resources by making the most of customized hosting for cases of
virtually any size and complexity.
Control
•Reduce the volume of data you process, review and store.
•Dramatically decrease investigation, analysis and collaboration costs related to
managing evidence.
Trust
•Count on a technology provider committed to ongoing innovation, transparent
pricing and prompt, reliable support—all with a focus on delivering the best solution
for your agency.
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LexisNexis Discovery Solutions Mapped to EDRM
Future Product Enhancements
Concordance® Evolution
(July 2012)
LAW PreDiscoveryTM & Early Data Analyzer
(Sept 2012)
Concordance ® 10
(Sept 2012)
• Filter data and eliminate duplicate,
irrelevant and non-responsive files
before processing and full review.
• Cut e-discovery and scanned
documents down to the 10 – 15%
most relevant documents
• Manage and review the
high volume of documents.
• Search, review, produce
and share documents
relevant to the case.
• Effectively capture, organize and
evaluate the relevant facts, players
and issues in a case.
• Develop your case strategy and
compile critical case knowledge
into a polished PDF report.
Litigation Hosting - Managed Technology Services
• TimeMap® allows you to transform
details from your investigation into
polished visual timelines to
communicate the sequence of events
in a case.
• Sanction® allows you to prepare
evidence necessary for managing &
presenting a case.
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The Discovery Data Funnel
Start with the complete dataset 
•Cull down data at the source
•Pass only the relevant data to be further refined and
processed
•Review data
•Send important case facts, manage all of your case
information and build your case strategy
•Prepare case facts & evidence for presentation
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LexisNexis® Discovery Workflow
LexisNexis® Early Data
Analyzer
REDUCE A GLOBAL
POPULATION OF
DATA DOWN TO A
MOUNTAIN
Cull Down Unresponsive
Data up to 80%
LAW PreDiscovery™
REDUCE A
MOUNTAIN OF
DATA TO A
HAYSTACK
Expand and Extract
Electronic Data (DVD’s,
Hard Drives, Flash Dives,
Etc.) to Ensure No Key
Documents are Missed.
Convert Native to Tiff,
Number With
Headers/Footers, OCR and
Export for Full Review
Concordance®
FIND THE NEEDLE IN
THE HAYSTACK
Search for Smoking
Guns While
Protecting Privileged
Data
CaseMap®
STORE YOUR
NEEDLE WITH THE
OTHER KEY PIECES
OF YOUR CASE
Store Key
Documents, Facts
and Research all in
one Central
Location
LexisNexis® Sanction®
PREPARE AND
PRESENT YOUR
NEEDLES
Prepare Evidence
Necessary for
Managing &
Presenting a Case
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Contact information
James Orcutt
Solution Specialist - LAW PreDiscovery™
eDiscovery & Litigation Management Solutions
LexisNexis
937-610-5151 (Direct)
913-314-6039 (Mobile)
http://law.lexisnexis.com/law-prediscovery
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Wireless Access Code:
9166703926