Lawyers Hold Ultimate Responsibility for eDiscovery Processes: Are You Prepared?

December 7, 2012

Sometimes risk management as related to eDiscovery takes on new levels of quality control. As I read a recent Metropolitan Corporate Counsel article, “Risk Management and Quality Control of E-Discovery Vendors” the complexity of eDiscovery was driven home.

Understanding the capabilities, quality and costs related to using eDiscovery vendors is an important responsibility. The reason being, the attorney has ultimate responsibility.

This article offers some very good reminders about what should be asked, inspected and known about your vendors. It is more than a processing capability. Is the data truly secure? Is your vendor using other providers?

As the article points out:

The consequences are steep for failing to be fully engaged with e-discovery vendors. In J-M Mfg. Co., Inc. v. McDermott Will & Emery, No. BC 462 832 (Cal. App. Dep’t Super. Ct. L.A. Cnty. filed June 2, 2011), the defendant faced a legal malpractice suit when it allegedly did not carefully review the work of contract attorneys at an e-discovery vendor, resulting in the production of almost 4,000 privileged documents to the federal government in a whistleblower suit.

The need to be involved and to understand the capabilities of your vendors is important. Understanding in-house processes is just as important. The dimensions of where information is stored, how it is accessed and the management involved are critical components of knowing what, when, how and who related to eDiscovery processes.

Constance Ard, December 7, 2012

The Cost of Exposure and the Importance of Information Management in a World of Big Data

December 4, 2012

We have been hearing the phrase “information overload” since I began my career, too many years ago to say here. And the trend continues and now the ruling phrase is big data.

This document/infographic from Open Text gives you a head shake to what is happening with information both in the enterprise and on the open web.  To say that information volume is exploding is kind of like saying I had too many sides at Thanksgiving, an understatement. 

As stated in this document from IBM, we are creating more data daily:

Every day, we create 2.5 quintillion bytes of data — so much that 90% of the data in the world today has been created in the last two years alone.

Imagine trying to find the right information at just the right time. This just might require a bit of knowhow and some really capable technological tools. Now imagine doing that for a discovery requests that requires production in a timely fashion.

If you have a system that is well organized, well managed and implemented systematically you might not sweat this new reality. However, if like many organizations, you don’t always follow the records retention policy, your users keep information in non-secure devices and an email thread goes to more than the people that need to know you might have a bit of a production nightmare in front of you.

Volume alone should drive corporations to thinking about the strategic implementation and use of information governance policies. Add the cost that can accumulate from a poorly managed response to an eDiscovery request and it just makes sense that you look at ways to incorporate information management into your risk mitigation processes.

Constance Ard, December 4, 2012

To Hold or Not to Hold: Litigation Holds and Burdensome Production

March 16, 2011

This links to an interesting discussion of the burdensome and costly argument in an eDiscovery production.  This points to the need to preserve whether or not the information is required to produce.

“In the courts view, whether defendants had deleted e-mail that should have been preserved was a relevant factor in determining whether it would be prohibitively burdensome or expensive to retrieve the archived e-mail.”

Handling the litigation hold correctly is a good way to avoid costly issues as litigation progresses.  Understanding the possible places information could reside, identifying the possible parties of interest and taking appropriate preservation actions seem to make for happier judges.

Spoliation is mucky ground.  Keeping your  processes updated will let you stay high and dry and there will be no debate on what and when to hold data near.  A bit of upfront preparation will save you from an unnecessary dip in the quicksand and keep you on the good side of the law.

Constance Ard March 15, 2011

Is the Shininess of E-Discovery dulling?

November 2, 2010

E-discovery has been the hot topic in litigation and law firm expansion for a few years now.  When reading this article last week I thought that perhaps the wow factor was fading from e-discovery and that the next big thing was around the corner.

I don’t think that the power of e-discovery is waning I just think that as the Legal Project Management article by Mr. Easton points out, it is a matter of standard business. Standard business is however, not always able to handle the complexities of e-discovery.  The business model must adjust and experts outside of the firm may be needed on occasion.

Think about electronically stored information.  Where is it, how is it accessed and how well are the standards of records management policies handling the diversity of storage and access methods?

Let’s take cloud computing as an example.  Policies put in place for a traditional workplace where the employee creates, accesses and stores information within the company network are, in all likelihood, sufficient to protect the employer from adverse e-discovery management risks.  However, workers do not always work within those constraints.  In fact there’s a new book out talking about how to overcome the employer bureaucracy in order to increase work efficiency. (Author’s note: I’ve only read a review of the book, not the  actual book so no affirmation of content beyond the review is presumed.)

Workers share files through cloud options such as Dropbox, or other similar services, they access materials for work purposes through personal mobile computing devices.  They do work such as  responding to emails, research and document drafting on their personal computing machines and then place that information in the cloud for easy access from work, home or play.

Add in factors such as companies using more cloud computing for storage and content backup  and the world of e-discovery is given another layer of consideration.  Time limits, storage limits and security are all issues related to cloud computing that impact e-discovery.


Peeling the Layers of e-Discovery


So while I think e-discovery is becoming a normal part of the business model for law firms, the related complexity is not completely understood.  The shininess may be dulling but the onion like layers underneath the sheen of proper protection and preparation for an e-discovery request are seemingly endless.  You might be able to cut it all up and dissect it but you can still peel a layer back for yet another issue.

Constance Ard


For the record your social media content maybe a record

October 11, 2010

Social media is booming and companies are hurrying to get on board the social media train.  However, many companies and organizations are not real sure how to use these new forms of communication and are not sure really how to handle to the content created for these outlets.

Does your business have a Facebook page, does it use Twitter to keep their customers updated or does it have a LinkedIn page?  If it does what type of content is being created and sent out for mass consumption? Should any of that content be saved or archived for future reference or could you produce it if needed?

There are several third party products and websites out there that can help out with this. I am not push anyone solution (but examples are the Fire Fox add-on for FB and the Outlook plugin called TwInbox).

This is not to say that your social media content is worthy of saving. However, you may want to look at what is being posted and see if the content does rise to the level of a record and needs to be saved.

Miller Montague

Models Address Social Media

March 3, 2010

Last fall I presented at the Kentucky Bar Association’s CLE, the Kentucky Law Update, on the topic of Social Media.  My co-presenter, Stuart Adams, and I did the presentation in a variety of cities throughout the state starting in September and ending in December.  By the time we finished we had revamped our original notes, because the September version was out-of-date.

(photo from

One of the things we discussed was the impact that jurors have on the outcome of cases when they engage in social networking.  It seems that the don’t talk about it mantra of olden days didn’t always translate when it came down to discussing, commenting and posting about an ongoing trial in the days of mobile social media use.

And this phenomenon is being addressed in a variety of manners.  The latest is the drafted Model Jury Instructions on the Use of Electronic Technology to Conduct Research on or Communicate About a Case (December 2009).  This effort combined with individual efforts by bar associations throughout the nation may rein in the misuse and subsequent mistrials of social networking in the judicial process.

The good news is that this Model and the implementation of strategic social media policies within law firms and other judicial system agents is getting in front of the problem.  Proactiveness  is a much better defense in this game.

Hat tip to the Law Librarian Blog

Social Networking and Judicial Ethics: Another Restriction on the Books

December 13, 2009

In Florida a recent Ethics opinion limits social networking site communication and interaction with judges and attorneys.

It seems that the law is starting to catch up with the possibilities of social media.  This latest development offers up some debate about whether or not it went to far.

In the age of enhancing and maintaining and even renewing friendships online do the ethical obligations of officers of the law preclude their ability to use social networking in a manner similar to the general population?

Perhaps, perhaps not but certainly the interactions will be subject to intense scrutiny if even the hint of favoritism or inappropriateness existed.  So while courtrooms work to ban jurors from electronic communication an ethics opinion relating to the interaction of judges and attorneys doesn’t seem out of line.  The rules and regulations will not be perfect in these early days but action does seem appropriate.

Constance Ard December 13, 2009

A Halloween Horror Story: Social Media Research Ethics for Lawyers

October 31, 2009

Over the past two months I have been presenting at the Kentucky Bar Association’s Kentucky Law Update on the topic of social media and how to use it for marketing and investigation in legal practice.  Followed by my presentation comes the Ethics course related to ethical use of Social Networking Sites.

During those sessions I’ve learned a lot about how tempting social networking sites are for unethical use and am relieved to hear bright presenters talk about good ways to participate in social networking sites appropriately.

I’m impressed by Kentucky’s “Common Sense” approach to  ethics.  “If it feels wrong, it probably is.”  However, not everyone can operate under those broad types of guidelines and thus the official rules are evolving and ethics sanctions related to social media are becoming more prevalent.  The dangers are many.  Mistrials are occurring and  even judges are crossing lines they shouldn’t.

This article on provides a good collection of the consequences of Pretexting for investigative purposes and the impact in the social media landscape.   Law firms are beginning to establish Social Media Policies and so are corporations.   This Law Librarian post provides a great overview of recent survey results from the Society for Corporate Compliance and Ethics.  The conclusion I draw from a quick review is that corporate employees and legal staff will soon see that expectations related to their off-the-clock online activities will be subject to corporate policies.  As companies try to protect themselves from the consequences of intentional or unintentional inappropriate activities their policies will address personal time activities related to the corporation.  The overall message, be careful what you post online, it can be found and consequences exist.

Constance Ard October 30, 2009


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