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Slide Materials
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Trends in the Last Year”
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Michele C.S. Lange, Esq.
Director, Thought Leadership & Industry
Relations, Kroll Ontrack
mlange@krollontrack.com
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• Nationally-recognized expert in ediscovery,
computer forensics and legal technologies
• Engages in industry relations, conducts legal
and market research to drive Kroll Ontrack’s
legal technology product and service
offerings
• Assists clients with integrating case strategy,
from ESI preservation to litigation tactics
• Co-authored the ABA book “Electronic
Evidence and Discovery: What Every Lawyer
Should Know”
Andrea S. Gibson, Esq.
Product Director, Kroll Ontrack
• Leverages expertise in discovery law,
technology and methodologies to build
cutting-edge ediscovery software and
processes
• Experienced litigator and legal consultant:
practiced law at Eccleston & Wolf (Baltimore)
and served on ediscovery teams in toxic tort,
antitrust and products liability cases
asgibson@krollontrack.com
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Pop Culture News 2012
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In This Issue
 2012 Case Law Overview
 2012 Year in Review
» Top Five Stories:
1. TAR Approved by the Judiciary
2. Social Media in Ediscovery
3. August 2012 Ethics Rules Amendments
4. Cloud Computing
5. The Era of “Big Data” is Here!
 Looking Ahead: Ediscovery News in 2013
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2012 Case Law Overview
 In 2012, Kroll Ontrack summarized 70 salient ediscovery opinions—
apportioned by topic as follows:
•
•
•
•
•
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Sanctions (32%) for spoliation, production
disputes and noncompliance with court
orders
Procedural Issues (29%) such as search
protocols, cooperation, production and
privilege
Discoverability & Admissibility (16%) of
specific types of information, such as
corporate e-mail stores and social media
data
Cost Considerations (14%) such as
shifting and taxation of costs
Technology-Assisted Review (TAR)
(9%), predictive coding, and other
advanced search technologies
Themes from 2012 Case Law
 Trends in notable 2012 ediscovery
opinions:
» Preservation, spoliation and sanctions still the most
common topic, but the total number of cases
addressing it decreased significantly compared to
2011
» Cases addressing procedural issues, such as
search protocols, cooperation and production saw
the greatest increase
 Going forward in 2013…
» As litigants embrace emerging technologies, courts will have higher
expectations from counsel to develop and explain thoughtful collection,
search, and production protocols before considering sanctions
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Ediscovery News 2012
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Technology-Assisted Review (TAR)
 For the first time ever, TAR Addressed and Approved by the
Judiciary in 2012
» “Counsel no longer have to worry about being the first ‘guinea pig’ for judicial
acceptance of computer-assisted review … [TAR] can now be considered judicially
approved for use in appropriate cases.”
– Da Silva Moore v. Publicis Groupe, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012)
 Following Da Silva Moore, several other courts approved TAR
» Global Aerospace, Inc. V. Landow Aviation & In re Actos (Pioglitazone)
Products Liability litigation – Both cases with large document corpuses, detailed
search, sampling and quality control protocols
» EORHB, Inc. v. HOA Holdings, LLC – a Delaware court of chancery orders sua
sponte that parties share same ediscovery provider for TAR
» Kleen Products – hearings to evaluate benefits of TAR
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Understanding TAR
 Vernacular: Ediscovery community loves this technology, but not sure
what to call it yet—TAR? IRT? Predictive Coding? Computer-Assisted
Review? Machine Learning?
 Eventually, the industry will decide on a standard
term, but for now two things are critical:
» (1) The technology behind the lingo; and
» (2) That you, your firm, your adversary and the court
actually know what you mean when you say
“technology-assisted review.”
 Da Silva Moore strongly emphasized implementing
an appropriate process, so knowing the technology
and covering your bases is paramount
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Understanding TAR
 Key concepts and metrics you must grasp before leveraging TAR:
Precision
All documents
Fraction of relevant documents within
retrieved results – a measure of exactness
Recall
Fraction of retrieved relevant documents within
the total relevant documents – a measure of
completeness
F-Measure
Harmonic mean of precision and recall
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Hot
Not
Understanding TAR
 Key concepts and metrics you must grasp before leveraging TAR:
Precision
Fraction of relevant documents within
retrieved results – a measure of exactness
Recall
Fraction of retrieved relevant documents within
the total relevant documents – a measure of
completeness
1) Perfect
Recall; Low
precision
F-Measure
Harmonic mean of precision and recall
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Hot
Not
Understanding TAR
 Key concepts and metrics you must grasp before leveraging TAR:
Precision
Fraction of relevant documents within
retrieved results – a measure of exactness
Recall
Fraction of retrieved relevant documents within
the total relevant documents – a measure of
completeness
2) Low
Recall;
Perfect
Precision
F-Measure
Harmonic mean of precision and recall
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Hot
Not
Understanding TAR
 Key concepts and metrics you must grasp before leveraging TAR:
Precision
Fraction of relevant documents within
retrieved results – a measure of exactness
Recall
Fraction of retrieved relevant documents within
the total relevant documents – a measure of
completeness
3) Arguably
good recall
and precision
F-Measure
Harmonic mean of precision and recall
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Hot
Not
Understanding TAR
 The TAR process, generally:
  Pay close attention to evolving case law and best practices, both of
which are in relative infancy at this point.
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Social Media
 2012 cemented social media as staples in
everyday communication:
» Facebook surpassed 1 billion users
» Twitter surpassed 500 million
Typical websites now offer 4+
links to share on social media.
 80% of companies are currently using social media to communicate
with potential clients and drive new business.
 Many companies now leverage internal social media platforms:
 Social media isn’t going away, and it’s no longer feasible to ignore
it in the personal or professional realm…
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Social Media – Ediscovery Issues
 Discoverability: Courts settled that social media is discoverable, but not
how much is discoverable
Broad
Narrow
Mailhoit v. Home
Depot U.S.A., Inc.
The Federal Rules do
not grant a “generalized
right to rummage at will
through information [a
person] has limited from
public view” absent a
Rule 34 showing of
“reasonable
particularity” in request
for data.
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Private
Sections?
E.E.O.C. v. Original
Honeybaked Ham Co.
of Georgia Inc.
Reasoned that social
media data was the
logical equivalent of an
“everything about me”
folder with a bevy of
relevant information.
Social Media – Ediscovery Issues
 Obligations to preserve and collect apply to Social Media, but:
» Data changes very frequently and stored on third-party servers
» Security and privacy setting may block access
» Few reliable technologies for social media preservation
 Start early and obtain consent before collecting!!!
 Contents of these sites are not self-authenticating
» Proactively obtain as much evidence as possible
– subscriber reports from the platform provider
– relevant metadata, such as when and where it was posted
 Laws and practices frequently changing, pay close attention to
evolving case law and best practices!!!
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ABA Amends Ethics Rules in August 2012
 The ABA House of Delegates approved recommendations
sponsored by the ABA Commission on Ethics 20/20
» Of special interest to ediscovery practitioners is Recommendation
105A, which amends existing rules as follows:
 Rule 1.1 – Comment [8] adds an attorney’s duty to stay informed about changes
in practice and relevant litigation technology
 Rule 1.6 – Adds section (c), identifying duty to prevent inadvertent disclosure of
confidential client information
 Rule 4.4 – Adds “electronically stored information” to provision about sending
prompt notice when lawyer receives third party information
 The connection between ediscovery and current ethics rules is
growing stronger with each case issued
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Rule 1.1, Cmt. [8] – Maintaining Competence
“To maintain the requisite
knowledge and skill, a lawyer
should keep abreast of changes
in the law and its practice,
including the benefits and
risks associated with relevant
technology…”
 Ability to Examine and produce ESI is central to managing
ediscovery: Duty requires competence in locating, reviewing, and
producing ESI in litigation and regulatory work!!!
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Rule 1.6 – Confidentiality of Information
“(c) A lawyer shall make
reasonable efforts to prevent the
inadvertent disclosure of, or
unauthorized access to,
information relating to the
representation of a client.”
 Large data volumes make protecting privilege more difficult, but
counsel must familiarize themselves with Fed. R. Evid. 502 and consider
entering protective orders, quick peek, and clawback agreements
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Rule 4.4 – Respect for Rights of Third Persons
“(b) A lawyer who receives a document or
electronically stored information relating to
the representation of the lawyer’s client
and knows or reasonably should know
that the document or electronically
stored information was inadvertently
sent shall promptly notify the sender.”
 Comments explicitly state: “metadata in electronic documents
creates an obligation under this Rule only if the receiving lawyer knows
or reasonably should know that the metadata was inadvertently sent to
the receiving lawyer.”
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Cloud Computing – What is it?
Examples of cloud
platforms:
These platforms contain ESI potentially relevant to litigation!
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Why Are We Talking About the Cloud?
Potential Benefits of the Cloud:
 Simplicity:
 Possibility of…
» Fast deployment
» Infinite scalability and resources
» Uptime commitments
» Collaboration across systems
» Minimal expertise requirements
 Cost Savings:
 Flexibility:
» No hardware investment
» Rapid Market adaptation
» No refresh cycles
» Platform independence
» No maintenance or upgrades costs
» Ubiquitous access models
 ….“That ediscovery will live primarily in the cloud isn't a question of
whether but when.”
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-August 2011 Legal Technology News
The Cloud’s Dual Impact on Ediscovery
1. Information governance (IG)
» Storing information in the Cloud (e.g., hosted email archiving)
– Raises significant preservation and collection issues
2. Processing and review
» Ediscovery processing will almost always be lower cost and more efficient in
the Cloud
– More elasticity and scale; no upfront hardware investment
– If you review documents in an online review tool you already depend on the cloud to
facilitate ediscovery
– Added benefit of third-party experts and project managers
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Mitigating Cloud Risks
Risk
Mitigation Tactic
Location
Keep data within specific data centers or countries
Accessibility
Understand the process for getting data out of the cloud; ensure
confidentiality is protected from other cloud tenants
Preservation
Clarify service agreements for how litigation holds will be implemented in
the cloud
Security
Ask who is going to have access to the data and what security measures
will be provided
Integrity
Inquire about the company's experience, reputation, financial stability
and disaster recovery plans
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The Era of BIG
DATA is Here!!!
 The total amount of global data in 2012

predicted to reach 2.7 zettabytes.
Source: IDC, “The Digital Universe” (2011)
 It is projected that organizations will

Wait… how much?
…a Zettabyte is approximately
one trillion gigabytes!!!
need to deal with 50 times more
information by 2020 than they're
managing today.
Source: IDC, “The Digital Universe” (2011)
 From a litigation perspective, 1 in every

3 corporations involved in ediscovery
averaged more than 2.5 terabytes of
data per legal matter in 2011. That’s a
20% increase in the last 3 years.
Source: IDC, “Leveraging Cloud-Based Delivery Capabilities for
Do-It-Yourself (DIY) eDiscovery” (February 2012)
Source: Cisco, The Internet in 2015 is the Dawn of the Zettabyte
Era
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Big Data = Big Headaches for Unprepared Attorneys
 Many sanction awards in 2012 stemmed from counsel trying to
keep pace with the era of “big data.”
» Coquina Invs. v. Rothstein, 2012 WL , 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012) Over 200 defense attorneys tasked with collecting, reviewing and producing ESI
constituted “a case of too many cooks spoiling the broth,” amounting to
insufficient production, a finding of gross negligence, and sanctions.
 Courts were all over the map regarding appropriate preservation
and spoliation standards in “big data.”
» Chin v. Port Auth. N.Y. & N.J., 2012 WL 2760776 (2d. Cir. July 10, 2012) – Not
negligence per se; diverged from Zubulake and favored a case-by-case analysis
» Voom Holdings LLC v. Echostar Satellite LLC, 2012 WL 265833 (N.Y. A. Div. Jan.
31, 2012) – Applied Zubulake; failing to implement hold an automatic deletion of email amounted to gross negligence
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Ediscovery News in 2013?
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