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eDiscoveryDaily

Rule 37(e) Amended Again – eDiscovery Trends

Last month, we discussed significant changes made to Rule 37(e), which had been hotly debated (as reflected in our recent thought leader series) and was the source of many of the 2,354 public comments filed regarding the recent proposed rules changes.  Earlier this month (on April 10th and 11th), the Advisory Committee on Civil Rules met to review proposed amendments to the Rules of Civil Procedure, including recommended changes to those proposed amendments as published for public comment and further changes were made to Rule 37(e).

Discussion regarding Rule 37(e) occurred on the second day of the two-day meeting and a final version of the proposed amended rule was presented for the consideration of the full Advisory Committee (also known as the “Duke Subcommittee”), which was ultimately approved by that committee without opposition and will now be submitted to the Standing Committee for its review and potential approval.  Here is the new, much simpler, proposed rule:

(e)  FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION.  If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

(1)  Upon a finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

(2)  Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation:

(A)  presume that the lost information was unfavorable to the party;

(B)  instruct the jury that it may or must presume the information was unfavorable to the party; or

(C)  dismiss the action or enter a default judgment.

During the meetings, the Advisory Committee also unanimously approved proposed amendments to Rules 1, 4, 16, 26, and 34.  The proposed amendments will be considered at the next meeting of the Standing Committee on May 29-30.

The full report of the meetings including the text of the proposed amendments to rules 1, 4, 16, 26, and 34 are available in the Advisory Committee’s 580 page(!) Agenda Book here.  Discussion of Rule 37(e) starts on page 369 – you can click on Tab 3 in the Agenda to jump straight to that section.

Click here, here, here and here for previous posts on this blog regarding the proposed rules changes.

So, what do you think? Are the latest changes an improvement?  Will there be more changes? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Why the Blog was Down — eDiscovery Downtime
If you’ve tried to access the blog for the past couple of days, you’ve experienced a lot of difficulty and, for parts of Monday and Tuesday, got an indication that the URL didn’t exist.  Here’s why:

According to Typepad, our platform for hosting the blog, “Beginning Thursday evening, Typepad was hit with a distributed denial of service (DDoS) off and on through today. A DDoS attack is an attempt to make services unavailable, but in no way was your Typepad account compromised. All information in your Typepad account is secure, including billing information. The attack on Typepad was similar to an attack on Basecamp which you can read about here.

The Typepad blogs and application have been restored. We put in place some roadblocks to mitigate the attack, but we are on high alert as attackers change their tactics regularly.”

Typepad reported that originally on Friday, then was hit with another attack on Sunday that left our blog down until yesterday afternoon.  It has been up since then.

Hopefully, the blog will continue to be up and accessible.  We’re continuing to monitor the situation and will provide an update if anything changes regarding the DDoS attack that Typepad has encountered.  Thanks for your patience and thanks for reading the blog!

Use of a Bulk File Changer to Manipulate Metadata Leads to Sanctions for Defendant – eDiscovery Case Law
In T&E Investment Group, LLC v. Faulkner, Nos. 11-CV-0724-P, 3:11-CV-1558-P (N.D. Tex. Feb. 12, 2014), Texas District Judge Jorge A. Solis upheld the earlier recommendation of the Magistrate Judge to order an adverse inference sanction, along with monetary sanctions, against the defendant for manipulation of metadata.

In this litigation, it had been ordered that “a third party independent computer forensic expert jointly selected by the parties shall be permitted by defendants to have access to all of the computers used by the defendants during the year 2011, wherever located, for examination of their hard drives.” After examining the three computers produced by the defendants, the expert determined that one of the computers produced by an individual defendant had been manipulated.

In his report, the expert specifically stated that the defendant “created a new profile on PCL-03, copied data to it, and used a bulk file changer to alter the data in an apparent ‘attempt to make it look like that was his computer that he used all the time’.” It was noted that the majority of the manipulated data was not related to the issues of the lawsuit. Further, the expert “believed that someone used the bulk file changer to hide the existence of a computer that had not been produced in this case,” and identified the computer that was not produced as “Alienware.”

Evidence in the expert’s report indicated that the last use of the Alienware computer had been inside the individual defendant’s home, the day after defendants were ordered to produce all computers relevant to the litigation. Additionally, the report found that the missing computer had been connected to the computer identified as PCL-03, which contained the manipulated data. And further, evidence indicated that during the relevant time period, the defendant had sent emails from the Alienware computer.

The defendant testified that he had used the bulk fire changer only to attempt to “set them as read only,” allegedly so they could not be deleted, and further categorized the copied files as “a multitude of things related to our investor files, a lot of photos, PDFs, Word documents, just standard stuff that we update our investor base with.” However, it was ultimately concluded that this testimony was false.

The plaintiffs requested sanctions, and limited consideration to the three specific computers produced by the defendants, while denying the defendants’ objection to consideration of the absent Alienware computer because “a finding that Defendants manipulated data on PCL-03 in order to avoid production of the Alienware computer or any other relevant evidence remains a viable ground for sanctions.”

Broadly, the Magistrate Judge ruled that the defendants had a duty to preserve “the evidence at issue, including PCL-03, the Alienware computer, and any other computer used by Defendants in 2011 in their possession, custody, or control.” Additionally, it was deemed that despite the individual defendant’s insistence that the unproduced computer was not within his home, the “evidence overwhelmingly support[ed]” the determination of the expert with regards to the manipulated data and the existence and use of the Alienware computer.

It was ruled that the individual defendant “acted in bad faith” by altering the metadata on PCL-03 to make it appear that he had used the computer “for a number of years,” and that he had made false statements to the court about manipulating the data, and further that it was done “in the context” of the defendant’s failure to produce the Alienware computer. While the Magistrate Judge concluded that the plaintiffs had not been “irreparably prejudiced,” requisite prejudice was established because “a reasonable fact finder could conclude” that there was relevant information contained on the non-produced computer, and that spoliation had occurred. Therefore, the Magistrate Judge recommended that the jury be “given a spoliation instruction that would entitle the jury to draw an adverse inference that a party who intentionally spoliated evidence did so in order to conceal evidence that was unfavorable to that party.” In addition, a recommendation was made for monetary sanctions of $27,500.

Judge Solis, upon conducting a de novo review and hearing objections from the defendants, accepted the recommendations of the Magistrate Judge in imposing both the adverse inference and monetary sanctions against the defendants.

So, what do you think? Are adverse sanctions sufficient to suggest electronic evidence that is not present due to data manipulation? Should a more stringent order be placed in cases where it is determined that evidence has been deliberately not produced? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

New California Proposed Opinion Requires eDiscovery Competence – eDiscovery Trends
If a new proposed opinion in California is adopted, attorneys in that state had better be sufficiently skilled in eDiscovery, hire technical consultants or competent counsel that is sufficiently skilled, or decline representation in cases where eDiscovery is required.

The California State Bar Standing Committee on Professional Responsibility & Conduct has released Proposed Formal Opinion Interim No. 11-0004, which is designed to establish an attorney’s ethical duties in the handling of discovery of electronically stored information.  As stated on the first page of the opinion:

“Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.”

The proposed ethics opinion includes a hypothetical situation in which a lawyer agrees to opposing counsel’s search of his client’s database using agreed-upon terms with that lawyer mistakenly thinking that a clawback agreement offered by opposing counsel is broader than it is, and will allow him to pull back anything, not just protected ESI, so long as he asserts it was “inadvertently” produced.  Ultimately, the lawyer learns the search produced privileged information and also showed that his client had deleted some potentially relevant documents as part of a regular document retention policy, breaching his duty of competence and his duty to maintain client confidences and to protect privileged information.  Oops!

The remainder of the proposed eight page opinion discusses those very attorney duties regarding ESI, including the duty of competence and the duty of confidentiality.

The committee is requesting comments on the proposed opinion through June 24.  For more information and where to direct comments, click here.

So, what do you think? Are ethics opinions like this needed to establish competency requirements for attorneys? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiffs Triumph in Second Motion to Enforce Court Ordered Production of Email Attachments – eDiscovery Case Law
In Skepnek v. Roper & Twardowsky, LLC, 11-4102-KHV (D. Kan. Jan. 27, 2014), Kansas Magistrate Judge James P. O’Hara ruled on a second motion filed by the plaintiffs to enforce a discovery order that was not followed completely by the defendants – specifically, the plaintiffs sought to compel the production of email attachments that were not produced along with the emails themselves.

The defendants opposed the motion to enforce, first by claiming that the plaintiffs had failed to meet and confer with them regarding the production of the Electronically Stored Information (ESI). While federal rules state that a party filing a motion has a duty to confer with opposing counsel, the local rules for this district expand upon that duty, specifically stating that “a ‘reasonable effort’ to confer means more than mailing or faxing a letter to the opposing party” and that the parties must in good faith “converse, confer, compare views, consult and deliberate, or in good faith attempt to do so.”

Judge O’Hara noted that the opposing parties had exchanged correspondence and held a telephone conference in attempt to resolve this discovery dispute without the court’s intervention, and ruled that the plaintiffs had made a reasonable effort to confer with regard to producing email attachments.

The defendants also objected that the plaintiffs had waived their right to object to the form of production, which was at issue in that it resulted in emails being produced with the attachments missing. The defendants had been ordered to produce “all internal communications among defendants…that pertain to Requests for Production Nos. 6, 7, 10, and 11,” as well as “all electronic communications between Angela Roper, Kenneth Thyne or anyone else associated with Roper & Twardowsky, LLC and the fifteen individuals listed by defendants in their motion.” These emails had been produced in PDF format, which did not result in the attachments being produced.

The plaintiffs suggested that if the ESI had been produced in native format, the attachments would have been included in production. Here, the defendants countered that they have always produced documents in PDF format, including emails, and that it would be “duplicative and burdensome to comply with plaintiffs’ request.” Further, the defendants had claimed that their “e-mail server search was not capable of producing the attachments to the e-mails,” but offered to produce specific attachments requested by the plaintiffs.

Judge O’Hara noted that producing attachments that have not previously been produced is not duplicative, and questioned why the defendants would be able to “produce specific attachments upon request,” when they claimed it was “impossible” to include all of the attachments. Additionally, the defendants did not offer evidence that producing the attachments would be burdensome, and the plaintiffs had not requested re-production of all documents. Instead, they “point[ed] out that one way defendants could [produce the missing attachments] is by producing the e-mails in their native format.”

Stating that the defendants “do not have the leisure of picking and choosing what responsive documents to produce,” Judge O’Hara ordered the defendants to produce all relevant communications, including attachments. No sanctions were imposed, since “both parties are at fault to some degree for failing to adequately confer early on regarding the production of ESI,” but the defendants’ request to have the plaintiffs pay for their production time was denied.

So, what do you think? Should a phone conference constitute a reasonable effort to confer with regard to the production format of ESI? Is PDF ever an appropriate format to produce email communications when attachments are relevant to the litigation at issue? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Daughter’s Facebook Post Voids $80,000 Settlement – eDiscovery Trends

My boss reminded me that we haven’t had a good social media disaster story in a while, so here goes.  I know it’s a few weeks old, but it’s still a good story if you haven’t heard it.

As reported a few weeks ago on CNN, the former head of a private preparatory school in Miami lost out an $80,000 discrimination settlement after his daughter boasted about it on Facebook.

When Patrick Snay, the former head of Gulliver Preparatory School, filed an age discrimination complaint when his 2010-11 contract wasn’t renewed, the school and Snay came to an agreement in which Snay would be paid $10,000 in back pay, as well as an $80,000 settlement.

He was all set.  Then, his daughter posted a comment to Facebook, as follows:

“Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

And, she sent it to her 1,200 Facebook followers, which included many current and former Gulliver students and word got back to school officials.

The problem?   It seems that Snay had a confidentiality agreement which stated that neither Snay nor his wife could speak about the settlement to anyone except for his attorneys and other professional advisers.  That included their daughter.  Within a few days, Gulliver Schools sent a letter to Snay’s attorneys stating that Snay had broken the confidentiality agreement and that he would not be receiving the $80,000 settlement.

Snay filed a motion to enforce the settlement and initially won in a Circuit Court ruling. However, the school appealed and the Third District Court of Appeals for the State of Florida agreed that Snay had, in fact, violated confidentiality and reversed the Circuit Court ruling.  Goodbye $80,000.

Sometimes the case is lost even after it’s won.

That’s why it’s important to think before you hit send.  Even if you’re still in grade school.

So, what do you think? Have you seen any cases lately that turned on social media evidence? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff Sanctioned for Spoliation of Digital Evidence in Sexual Harassment Lawsuit – eDiscovery Case Law
In Calderon v. Corporacion Puertorrique a de Salud, No. 12-1006 (FAB) (D.P.R. Jan. 16, 2014), the plaintiff was found to have violated his duty to preserve evidence during the discovery phase of this sexual harassment lawsuit. Sanctions were imposed, though not to the extent requested by the defendants.

The discovery dispute began over the Electronically Stored Information (ESI) produced by the plaintiff, which were in the form of messages from his phone exchanged between the plaintiff and a particular identified email address belonging to an unknown person who was alleged to be the harasser. The plaintiff produced relevant messages to the defendants, but also admitted that some of the messages had been deleted from his phone. In response, the defendants filed a motion in limine that sought to have all of the messages excluded, and requesting that the case be dismissed.

While the motion in limine was still pending, the defendants received ESI from the plaintiff’s phone service provider, which contained the plaintiff’s phone and text messages spanning the time period relevant to the case. These records showed that at least 38 messages, including some from the alleged harasser and others that were “the numerous text messages that [plaintiff] sent in response” were not among those messages produced by the plaintiff to the defendants. Therefore, the defendants filed a supplemental motion based on the missing messages that asked to sanction the plaintiff by dismissing the case, since spoliation of evidence had occurred.

The plaintiff filed a motion to quash, with the argument that the defendants had subpoenaed the plaintiff’s service provider before the discovery deadline, and had not given adequate pre-service notice. Therefore, the plaintiff claimed that the subpoena which resulted in the discovery of missing messages should be quashed as procedurally defective. However, it was noted that had the defendants given notice of the subpoena and the plaintiff objected, the subpoena would not have been quashed. Further, the late disclosure of the defendants’ receipt of phone records was determined to be harmless to the plaintiff.

In considering the motions, District Judge Francisco A. Besosa found that spoliation had indeed occurred. This was based on discovery of the 38 messages the plaintiff had deleted, some of which had included photos that were also not produced by the plaintiff. Additionally, the plaintiff’s records revealed that he had “reasonably foresaw litigation and had a duty to preserve relevant evidence,” because the plaintiff had contacted his attorney via his phone prior to the point where he admitted to “forwarding some messages…so that he ‘would be able to print’ them.” Judge Besosa stated that this constituted “conscious abandonment of potentially useful evidence” and indicated that the plaintiff believed the deleted messages would not help his side of the case.

While spoliation had been found to occur, Judge Besosa declined to sanction the plaintiff by dismissing the case, citing that dismissal of an entire lawsuit as a sanction is generally reserved for extreme cases, as cited in Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir. 2006), which stated: “[I]t has long been our rule that a case should not be dismissed with prejudice except when a plaintiff’s misconduct is particularly egregious or extreme.” Instead, Judge Besosa ruled that an adverse inference instruction to the jury was the most appropriate sanction for this case.

So, what do you think? Should the court consider quashing evidence that would not have been likely quashed during normal proceedings, if a party obtains such evidence outside of established processes? Are adverse inference instructions truly sufficient to exclude or caution against potential spoliation of evidence? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Litigation Support Professionals Are Certifiable, Too – eDiscovery Trends

We’ve covered programs from The Organization of Legal Professionals (OLP) in the past, including this prior post regarding their certification program for eDiscovery project management.  Now, the OLP has announced that it has finalized preparations for a new Litigation Support Certification Exam.

As announced on their site, the Certified Litigation Support Certification Exam (CLSP®), developed in conjunction with Pearson Learning Solutions, a $7 billion company that specializes in certification examinations for a wide variety of industries, incorporates content created by OLP members including eDiscovery and legal technology lawyers, consultants and experts. According to the announcement, OLP is the first organization to offer a Litigation Support Certification Exam.

The exam and prep course aren’t just for anybody who can study and take a test, candidates must complete an application form found in the Candidate Handbook and demonstrate prior work experience and/or education.  The requirements for demonstrating prior experience depend on whether or not you hold a J.D., baccalaureate degree, A.A./A.S. degree and/or are employed in the position of attorney or paralegal.  Specific eligibility requirements can be found here.

According to Chere Estrin, President of the OLP, the prep course offers self-paced, 24×7 accessible online learning tools and resources so learners can work at their own pace and schedule. Each course requires about 4 hours of dedicated study time. The course curriculum is comprised of all important and relevant learning objectives as identified by top legal field professionals and that cover all vital aspects ensuring knowledge development while best preparing the learner for the certification exam.

The topics covered are quite comprehensive and include:

  • Technology Topics including: Media, Hardware, Software and Terminology
  • Appropriate Uses of Software
  • eDiscovery Topics including: eDiscovery Definitions, File Extensions and Terminology
  • Case Law Topics including: Legal Procedure and Rulings, FRCP, The Sedona Conference and Other Resources
  • Legal Project Management Topics including: Information Management, Backup, Records Management and Legal Hold
  • Cost Controls and Budget Metrics
  • Early Case Assessment Topics including: Early Case Assessment, Matter Life Cycle, Matter Planning and Software Applications
  • Metadata Topics including: Metadata Forensics
  • Data Storage Topics including: Data Processing and Document Coding
  • Best Practices Topics including: Production Format, Records Retention
  • Risk Control and Management
  • Search Tools Topics including Software Applications, Review Tools, Forensics, Authentication and Hardware/Software

The cost for the prep course is $695 for OLP members ($895 for non-members) and the cost of the exam is $395 for OLP members ($595 for non-members) – individual membership is $125 per year, so it pays to be a member if you’re going to sign up for either the prep course or the exam.  Candidates for the exam will be able to schedule the date of the examination starting May 15, 2014 through the purchase of a voucher.  The exam will be administered in a secured facility in over 1,000 global locations including the U.S., Canada, Australia, the UK, Japan, Europe, Mexico, Puerto Rico, Brazil, Venezuela, and South Africa.

For more information about the CLSP® prep course and exam, click here.  You can also download the Candidate Handbook, available here.

So, what do you think?  Are you a litigation support professional?  If so, does the idea of a certification program appeal to you?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Searching for Individuals Isn’t as Straightforward as You Think – eDiscovery Best Practices

I’ve recently worked with a couple of clients who proposed search terms for key individuals that were a bit limited, so I thought this was an appropriate topic to revisit.

When looking for documents in your collection that mention key individuals, conducting a name search for those individuals isn’t always as straightforward as you might think.  There are potentially a number of different ways names could be represented and if you don’t account for each one of them, you might fail to retrieve key responsive documents – OR retrieve way too many non-responsive documents.  Here are some considerations for conducting name searches.

The Ever-Limited Phrase Search vs. Proximity Searching

Routinely, when clients give me their preliminary search term lists to review, they will always include names of individuals that they want to search for, like this:

  • “Jim Smith”
  • “Doug Austin”

Phrase searches are the most limited alternative for searching because the search must exactly match the phrase.  For example, a phrase search of “Jim Smith” won’t retrieve “Smith, Jim” if his name appears that way in the documents.

That’s why I prefer to use a proximity search for individual names, it catches several variations and expands the recall of the search.  Proximity searching is simply looking for two or more words that appear close to each other in the document.  A proximity search for “Jim within 3 words of Smith” will retrieve “Jim Smith”, “Smith, Jim”, and even “Jim T. Smith”.  Proximity searching is also a more precise option in most cases than “AND” searches – Doug AND Austin will retrieve any document where someone named Doug is in (or traveling to) Austin whereas “Doug within 3 words of Austin” will ensure those words are near each other, making is much more likely they’re responsive to the name search.

Accounting for Name Variations

Proximity searches won’t always account for all variations in a person’s name.  What are other variations of the name “Jim”?  How about “James” or “Jimmy”?  Or even “Jimbo”?  I have a friend named “James” who is also called “Jim” by some of his other friends and “Jimmy” by a few of his other friends.  Also, some documents may refer to him by his initials – i.e., “J.T. Smith”.  All are potential variations to search for in your collection.

Common name derivations like those above can be deduced in many cases, but you may not always know the middle name or initial.  If so, it may take performing a search of just the last name and sampling several documents until you are able to determine that middle initial for searching (this may also enable you to identify nicknames like “JayDog”, which could be important given the frequently informal tone of emails, even business emails).

Applying the proximity and name variation concepts into our search, we might perform something like this to get our “Jim Smith” documents:

(jim OR jimmy OR james OR “j.t.”) w/3 Smith, where “w/3” is “within 3 words of”.  This is the syntax you would use to perform the search in OnDemand®, CloudNine Discovery’s online review tool.

That’s a bit more inclusive than the “Jim Smith” phrase search the client originally gave me.

BTW, why did I use “jim OR jimmy” instead of the wildcard “jim*”?  Because wildcard searches could yield additional terms I might not want (e.g., Joe Smith jimmied the lock).  Don’t get wild with wildcards!  Using the specific variations you want (e.g., “jim OR jimmy”) is often best, though you should always test your terms (and variations of those terms) to maximize the balance between recall and precision.

Of course, there’s another way to retrieve documents that mention key individuals – through their email addresses.  We’ll touch on that topic next week.

So, what do you think?  How do you handle searching for key individuals within your document collections?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Cloud Security Fears Diminish With Experience – eDiscovery Trends

One of the more common trends identified by thought leaders in our recently concluded thought leader series was the continued emergence of the cloud as a viable solution to manage corporate big data.  One reason for that appears to be greater acceptance of cloud security.  Now, there’s a survey that seems to confirm that trend.

According to a recent survey of 1,068 companies conducted by RightScale, Inc. (referenced in the Forbes article Cloud Security Fears Diminish With Experience, Survey Shows, by Joe McKendrick), concern about cloud security diminish as users gain more experience using cloud-based services.  According to the survey, “security remains the most-often cited challenge among Cloud Beginners (31 percent) but decreases to the fifth most cited (13 percent) among Cloud Focused organizations. As organizations become more experienced in cloud security options and best practices, the less of a concern cloud security becomes”.

Other key findings of the survey include:

  • 94 percent of respondent organizations are using the cloud in some form, with 29 percent using the public cloud only, 7 percent using private clouds only and 58 percent using both public and private clouds;
  • 74 percent of enterprises have a hybrid cloud strategy and more than half of those are already using both public and private cloud;
  • Less than a third of organizations have defined such critical aspects of governance as which clouds can be used, disaster recovery approaches, and cost management;
  • The number of respondents who regard cloud security as a significant challenge has decreased among both cloud beginners and cloud pros;
  • The cloud “maturity” of respondents ranged from 24 percent who either have no plans to deploy cloud solutions (6 percent) or are only in the planning stage (18 percent) to 47 percent that either have multiple projects or applications already deployed in the cloud (25 percent) or are heavily using cloud infrastructure and are looking to optimize cloud operations as well as cloud costs (22 percent).

You can download the 20 page survey report, chock full of graphs and statistics, here.  It’s a very interesting read.

So, what do you think? How many cloud-based applications does your organization use? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.