New Changes In Federal Rules of Civil Procedure (FRCP)

Within the realm of eDiscovery, the Federal Rules of Civil Procedure (FRCP) become important to understand and follow. Numerous court judgments have been seen in recent times, where Judges have levied heavy fines and penalties upon parties who did not abide by these rules.

Several Rules have been amended as part of the changes effective today, with the changes ranging from promotion of cooperation (Rule 1) and proportionality (Rule 26(b)(1)) to failure to preserve electronically stored information (Rule 37(e)) .  Here is a list of key Rules changed:

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• Rule 1. Scope and Purpose
• Rule 4. Summons
• Rule 16. Pretrial Conferences; Scheduling; Management
• Rule 26. Duty to Disclose; General Provisions Governing Discovery
• Rule 30. Depositions by Oral Examination
• Rule 31. Depositions by Written Questions
• Rule 33. Interrogatories to Parties
• Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
• Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

Noteworthy changes are in Rule 26:

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(b) Discovery Scope and Limits.

(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Information within this scope of discovery need not be admissible in evidence to be discoverable.

(2) Limitations on Frequency and Extent.

(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

(c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending —

or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(d) Timing and Sequence of Discovery.

(2) Early Rule 34 Requests.

(A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered: (i) to that party by any other party, and (ii) by that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

(3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and

witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.

(f) Conference of the Parties; Planning for Discovery.

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;

(D) any issues about claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert these claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;

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Avoiding the Seven Pitfalls of Legacy eDiscovery Platforms

The litigation discovery process has never been as costly, complex and critical as it is today. The sheer volume of electronic data to be culled and analyzed for each and every discovery production has grown exponentially over the last two decades, and that pace is not slowing. Gartner predicts that in a four-year span, revenue in the ediscovery market will nearly double. [1] Yet, even as computing power increases to meet data volume, legal professionals are frustrated with their current ediscovery platform’s performance.

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With the experience of having reviewed nearly 100 million documents since 2014, the Thomson Reuters Legal Managed Services team has identified the seven pitfalls most frequently experienced with current ediscovery solutions and what legal professionals should look out for when considering their ediscovery needs.

• Unreliable Software: Legal professionals using outdated platforms are often frustrated by system crashes as multiple users log on. Such platforms were built utilizing old technology and have been cobbled together over time, making the underlying technology overly complex and, in turn, unreliable. Outdated platforms are not well equipped to handle the uploading of additional files and the consistent need for system refreshes as new data emerges. The infrastructure of today’s systems must be backed by robust technology with the scale to support the increasing volume of data and high demand for a nonlinear process that matches the nonlinear nature of litigation. When considering a new solution, legal professionals should demand guarantees around system performance and up-time. 

• Unpredictable Pricing: Law firms and in-house legal teams are under immense pressure to contain litigation costs. Existing ediscovery solutions often rely on complex pricing structures that charge users piecemeal for common tasks or additional users, resulting in unpredictable costs. Ediscovery solutions with a predictable and transparent pricing model will allow firms to better plan for and manage costs. Inquiring upfront about how a vendor handles new data and potential overage charges can help legal professionals properly manage budgets and expectations with clients. The bottom line is important to all parties involved.

• Inaccurate Search Results: Law firms and legal professionals put their reputations on the line with every discovery production. Too often, existing software prioritizes speed over comprehensive and reliable accuracy. When results are not complete or accurate, legal professionals running the search may need to complete significant extra work or they face the risk of missing information. An advanced system should not only ensure speed, but the full set of relevant results – each time a search is conducted – so users can be confident in their findings.

• Slow Search Functions: The other side of the “speed vs. accuracy” coin is that some platforms cannot deliver accurate results quickly, leading to unacceptable slow-downs in the ediscovery process. The old adage is true: time is money. A search in an ediscovery platform should be intuitive to how attorneys think and work. When selecting a platform, purchasers should ask the provider if the system uses a distributed-server architecture, which provides scale and ensures search speed is the same regardless of whether the dataset they are searching is 1GB or 100TB.

• Complex User Interface: As mainstream consumer technology becomes increasingly user-friendly, legal technology has failed to keep up. The importance of ediscovery to today’s legal process cannot be understated, so it is critical that solutions are easy for users to navigate. Legal professionals can determine this quickly by looking at the software’s interface. If navigating the interface’s system without help is a challenge, it will be difficult for the rest of the team, as well.

• Lack of Security Features: Some newer ediscovery platforms tout streamlined interfaces and speedy search capabilities. However, these platforms often lack the powerful infrastructure and critical security features of more traditional (and, unfortunately, less streamlined) solutions. These features are critical, especially amid growing concerns over cybersecurity, and an advanced system should make these features available in a streamlined package. 

• Inadequate Support: Legal professionals do not have time to wait on hold for their ediscovery solution’s support team to resolve an issue, nor do they have the time to bring inexperienced case managers up to speed. An easy-to-use system backed by a consistent, ACEDs certified support team who can work around a litigator’s schedule and needs ultimately saves time and resources.

Legal professionals deserve a platform that addresses all of their needs with none of the pitfalls that too often come with existing ediscovery solutions. By partnering with a provider that understands their needs, legal professionals can regain confidence and control over the discovery process, protecting their reputations and better serving their clients.

Credits: abovethelaw.com

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Buying a New E-Discovery Platform?

Law firm e-discovery experts on the eight questions firms should ask themselves before investing in an e-discovery platform.

So you’re looking to get in line with the 21st century and undertake an initiative to upgrade your e-discovery software. That’s good; if your law firm isn’t using the best e-discovery software, then it is losing out on crucial efficiencies that mean higher costs and time wasted—a non-starter when it comes to litigation.

But what exactly does the best software mean? It doesn’t necessarily mean the most costly—many firms would be better served saving costs if they don’t have a need for the high-end e-discovery model. It doesn’t necessarily mean the fanciest gadgets—if your firm’s attorneys won’t use the high-end analytics, for example, why pay extra for them? It may not even be the most robust—can your firm’s hardware (i.e. desktops and laptops) even handle the software in question?

We reached out to two prominent e-discovery attorneys: Gareth Evans of Gibson Dunn and John Rosenthal of Winston & Strawn, to get their takes on the eight questions firms should ask themselves before investing in an e-discovery platform.

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1. What do your attorneys actually use?

When researching a new system for use at Gibson Dunn, Evans said, “What we were most focused one was collecting information from our own attorneys.” This included not only which platforms his attorneys were actually using, but also how well they liked them. The method for collecting this information doesn’t need to be high-tech—Gibson Dunn used a SurveyMonkey poll—but it does have to be comprehensive in figuring out likes and dislikes.

And, Evans added, finding the reasons for those likes and dislikes is important too. He noted that in some situations that he encountered, an attorney vehemently disliked a certain platform... only to find that there was nothing wrong with the software itself, just with the vendor that delivered it.

2. How will people use the technology?

Once research is done into the platforms available and attorney likes and dislikes, it’s important to nail down how the attorneys are actually planning on using the platform. If attorneys would like greater insight into the data analytics and plan to spend time researching a case through the system, the firm should know that. Ditto if the attorneys prefer ease-of-use and would only use baseline functionality.

Rosenthal noted that while the capabilities touted by one e-discovery vendor may sound excellent, 60 percent of e-discovery costs are incurred through attorney time. As a result, efficiency should be the key driver. “Non-attorneys tend to focus on the pure e-discovery aspects, without focusing on the single most important part—how to use the technology to expedite the review, maintain quality and reduce costs,” Rosenthal said. “The non-attorneys, therefore, need to spend more time understanding the objectives of the case team and then help develop processes around the technology re achieve those objectives. Sounds simple—it is not.”

3. What are the platforms’ data analytics capabilities, and do we need them?

One of the increasingly common features of many e-discovery platforms is the use of data analytics—many vendors are touting the use of analytics as a great differentiator. And, in a perfect world, law firm technologists would love if every attorney in the firm learned how to utilize data analytics to leverage greater efficiencies in the discovery process. But we don’t live in a perfect world, and before paying for the latest and greatest data analytics, firms should align its own priorities with that of the platform.

As Evans said of the Gibson Dunn selection process, “Certain of us are power users and would have been into the high-powered analytics, but that would have been overkill.” Instead, he said, the firm went with a more basic platform, with the opportunity to use a more robust platform as needed for those more familiar with the technology or as a larger case demands.

Rosenthal added, “For overwhelming majority of reviews, the most sophisticated analytics such as predictive coding will not be used. It is important to consider other types of analytics that can be used in the average review such as key word listing and search term analytics; email analytics (URL, Domain, timing gaps): threading; near duping; and clustering. Each of these can be used on any review to reduce volume and increase efficiency.”

4. Can the firm’s preexisting technology handle the new platform?

You may have purchased the latest and greatest new e-discovery software, but if the firm’s Windows 2000-running laptops don’t have the processing power to handle it, that software investment just turned into an entire revamping of the firm’s IT department. As a result, Evans said that bringing the firm’s IT department into the process to help answer this question is crucial. They have the expertise to answer more definitively whether the platform’s specific specs are a good fit technologically with the firm’s hardware and other software. And not only will they be helping implement the technology in question, but they will also be the ones that many attorneys turn to if something with the platform goes wrong. Firm decision-makers, then, should include the time and effort of the IT department into their cost calculations.

5. Should I choose just one platform, or should I look at multiple to handle different parts of the process?

This one shouldn’t even be a question, Rosenthal said. It all comes back to the three keys of IT system success: people, process and technology. And without one of those legs of the tripod, a duplicable process in this case, e-discovery crumbles.

He explained, “No brainer—one platform—one process. Volume is the enemy. Only through using people, process and technology at each stage of the EDRM can you ultimately reduce the volume that is subject to review and, thus, the overall cost of the review. By using one platform with a consistent tool set you have the ability to develop work flows to develop a consistent, repeatable and defensible process for attacking the volume. If you are on a different tool set for each review, it is difficult to bring a consistent workflow and process to bear on the problem.”

6. What cost does the firm prefer, and what costs are actually present?

“Cost is a deceptive term when it comes to e-discovery platforms because there are components to cost that may not be obvious in the vendor’s proposal,” Rosenthal said. He noted that there are often external costs to operate the software, such as internal IT and project management resources will be required that might not be included in the basic cost of the hardware/software. Geographic considerations may also be a concern for firms that handle cases in a number of different jurisdictions.

He also added that it is “important to consider variable costs. For example, some vendors might charge by seat to a certain level with burst or penalty fees over that level. The choice is then paying the penalties or stepping up the next level, with the risk that you need to purchase to peak demand, with many licenses sitting on the shelf.”

7. How long is the contract for?

One consideration of the contract isn’t just the cost, but also the length, Evans explained. While many firms look only at costs, they may be locking themselves into a long-term deal without realizing it. This can go one of two ways—it creates a partnership between the vendor and firm which leads to more specialized service, or it locks the firm into a contract while technological advances happen all around them.

“Technology advances very quickly, and contracts change as well. There can be a real downside in being locked into a longer term contract,” Evans cautioned. He said that while Gibson Dunn has not completed the purchasing process for a few years, he has heard anecdotally that some vendors are beginning to push for longer term contracts. While this ask may not be a deal-breaker, it certainly should be an area that the firm brings up in negotiations and keeps an eye on come contract signing day.

8. Where will the data reside?

Finally, Evans noted that perhaps the most pressing question in today’s e-discovery environment is also one of the newer ones. With data security looming large on the radar of not only law firms but their clients as well, firms need to make some tough decisions as to whether they want to hold all of the data entering the platform behind their own firewall, or whether they would feel more comfortable using a platform’s cloud storage.

Most major vendors currently offer cloud solution, Evans noted, with the option to rent software and space. He said that in order to properly assess the firm’s capabilities, decision makers should engage a knowledgeable expert—either internally or externally if need be—to ask some key questions: “What will make more economic sense and data security sense? Is your data security robust enough to protect your clients’ data, or are you better off hosting it in the cloud with the security of a vendor?”

Credits: legaltechnews.com

Global eDiscovery market passes $10 billion

The eDiscovery process of extracting data for regulatory or legal purposes is generally seen as a bit of a niche in the IT field.

However, a new study by research specialists IDC forecasts that the market for worldwide eDiscovery services reached $8.2 billion at the end of 2015. This combined with an eDiscovery software market of just over $2 billion means the global eDiscovery market has passed the $10 billion threshold.

"Increased litigation and regulation coupled with expanding use cases for eDiscovery software will continue to drive moderate growth in the worldwide eDiscovery market," says Sean Pike, Program Director in IDC's Security Products group and leader of IDC's eDiscovery and Information Governance research program. "The data solution market, however, is maturing rapidly as buyers search for automation to solve well-defined problems. To meet maturing needs, eDiscovery solution and service providers are already creating robust strategies to use existing search and analytics competencies to compete in the white hot content analytics and cognitive solution markets".

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The Americas region is still the largest market for eDiscovery, and is expected to remain so, but there's been a growth in international demand over the past year. Europe and Asia are both seeing an uptick in demand for eDiscovery services. By 2019, IDC expects Europe to make up almost 23 percent of the market and Asia just over seven percent.

There's also been some consolidation in the market with service providers and technology solution companies pairing off. In addition solution providers are buying capabilities as bolt-on functionality for existing products or services, in an effort to gain or hold onto market share. Software and service provider companies see analytics companies as posing the largest threat to existing market opportunity.

Courtesy: betanews.com

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Litigation Support Services

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Litigation Support Services

Datascribe Litigation Support Services team is managed by and consists of highly trained law professionals. Our Litigation Services includes Document Review, Litigation Coding, Deposition Summary,  Legal Transcription and Updating Case Management tools.

What advantages do LPO firms offer for Litigation Support Services?

Law firms and Attorneys may have various advantages in the area of litigation support services for their preparation of court proceedings. The Legal Process Outsourcing firms offer professional assistance through well trained and experienced associates. These LPO’s usually have specialized professionals who can provide support for wide range of services for the cases which involves pre and post-trial preparation. To execute these services for litigation support to the clients, the LPO firms usually have a strategic methodology and software solutions to provide customized solutions.

The LPO firms offer a range of services under litigation support flagship to meet the varying needs of diversified attorneys and law firms:

·          Managing documents by using effective solutions like:

o    Document coding and indexing.

o    Document review.

o    Electronic discovery.

·          Pre-trial proceedings like:

o    Research and drafting of documents such as pleadings, motions and responses.

o    Document discovery such as interrogatories and answers, notices for production of documents, preparation of subpoenas.

o    Summarization of deposition transcripts.

·          Case management solutions like:

o    Legal transcription.

o    Management of lawsuits by case management tools like Summation, Concordance, CaseLogistix, Ringtail, iConect, CaseMap, Catalyst etc.

There are various technology based processes that include tools for online web-based review, managing documents and assessing cases. With the huge volume of data and documents to handle, having the appropriate process solutions, software and technology is essential to thoroughly and successfully prepare for legal proceedings.

The advantages and benefits could be realized based on following features:

·          Access to qualified and trained professionals and resources to handle assignments;

·          Tangible cost savings due to outsourcing expertise rather than paying additional staff;

·          The ability of legal professionals to compete with other party in a better way by having ample time for case or trial preparation;

·          Engaging support services based on project schedules, customized needs and demands;

·          Better time management and faster turnaround of projects.

The most important aspect of the litigation process involves having the right information, effective documentation, useful evidence and comprehensive preparation. By outsourcing the range of services to LPO’s for litigation support services, the law firms (small or large) and solo attorneys will surely be better equipped to successfully prosecute different types of cases.