eClaris recently contributed an article on the value of collaborative eDiscovery to the American Bar Association's Electronic Discovery and Digital Evidence Committee.   Click EDDE Journal - volume 1 issue 3.pdf (890.84 kb (second entry down) to read all about it.

Metropolitan Corporate Counsel recently interviewed eClaris Founder Jacques Nack Ngue.  Editor Al Driver, Esq. quizzed the eClaris President on "Project Management and eDiscovery Cost Control."  Click here to read the interview.

eClaris recently capitalized on highly responsive and scalable Hitachi Storage for flexible eDiscovery growth.  Click eClaris - Hitachi Case Study.pdf (602.70 kb) to learn how.

Computer forensics on TV looks like magically powerful voodoo that, with a few strokes on the keyboard, easily cracks the case.  Real life computer forensics is quite a bit more mundane, painstaking and even tedious.  Yet, it can often uncover unexpected information.  This article discusses the most common types of data from which a forensic analyst will be able to recover files that have been deleted.  The article appears in the April 2010 edition of San Diego North County Lawyer Magazine.  To read more click on North County San Diego Bar Association Article.pdf (11.08 mb) and head to Page 20.

At the end of the day, but before advising attorneys and staff on the best solutions to handle their discovery demands, the ultimate question is, “How much will this cost?” Litigation has always been a cost/risk assessment question. Attorneys look at the claims and the facts of the case presented in order to make a determination of how much money it is worth spending defending the matter before them. The level of risk dictates every aspect of the case. If a claimant is seeking $10,000 in damages, the cost an attorney is willing to spend defending the claim is going to be rather small; in most cases. If a claimant is seeking $1,000,000 in damages with the possibility of punitive damages on top of that and if the case looks very favorable in light of the risk assessment, then the budget to defend will increase. If the facts present a poor case for the defense, then the budget for the $1,000,000 case is going to shrink. This is an important backdrop to understand for the Litigation Support Manager before advising their attorneys and staff on the best solutions for litigation support for a given case especially when the case involves electronically stored information (ESI). Understanding this leads to better communication. Better communication leads to better budgeting. Discussion will often times center on the discovery demand itself and the budget gets lost in the talk. When the budget gets lost and the monthly cost bill is being prepared, all too often the Litigation Support Department gets called into question. Why? Internal law firm litigation support costs are not always accepted as a legitimate cost that can be passed on to the client and equally important is that attorneys are in the dark as to how much it costs to handle the electronic discovery portion of the case. In my early career, I would all too often be brought into a discussion to answer, “What should we do?”, or “How should we best handle this request?” I would give my advice, proceed to perform the tasks agreed upon, and then present the outside vendor bill and my hours to the attorneys. Sometimes my hours would be written off to the client and the vendor bill would languish forever on someone’s desk and I would have to answer the vendor’s request for payment. Other times, I would be called in to explain the bill. I would say, “You asked me to perform this task and I did.” The attorneys would answer back with, “I had no idea how much this was going to cost.” Why? Budget was not brought up during the discussions. After these type of experiences, I have made it a point when asked to handle the processing of ESI to run initial cost analysis even if I am not asked to. I do this, because I know that the issue is too important to ignore and unless I raise it, it may never be asked until it is too late. There are other times where I have had experiences, as many of us have, where I hear about a partner or associate calling up a vendor, independent of talking to me, to print out all the emails from a 1 GB PST file so they could review the documents in hard copy. One month and 100 billable hours later, I find out about it. I explain to the attorney that had they sought my advice in the beginning they could have saved about $2,500 in upfront processing costs and about 90 billable hours to the client in review time. I would get sheepish grins, or sometimes very red faces. Today, many Litigation Support Managers use a formula-based spreadsheet to calculate the cost of handling ESI and other litigation support tasks. This has grown into a very powerful tool to help communicate the cost impacts of pursuing a certain line of litigation support to attorneys. It is also a very powerful tool that Litigation Support Managers can use to evaluate offerings among a variety of support vendors. Whether it’s formulae in spreadsheets, or budgeting software, the goal is to provide information to the litigation team early on so they can factor in the price of handling ESI into the cost analysis of defending their case. There are several ways that Litigation Support Managers can better interface with the litigation team to ensure that budgeting goals are achieved when a case involves ESI. Integrate the Litigation Support department with the legal department rather than have it stand as a separate entity. Often times, Litigation Support exists as a separate department just as IT. The role of Litigation Support spans across both legal and IT, but in practical terms Litigation Support serves to increase the ability to effectively handle the discovery and trial presentation aspects of the case; a legal function. Bringing Litigation Support directly into the legal department immediately enhances the quality of communication. Initiate discussions early on concerning cost with the litigation team handling the case. All too often a case team meets with Litigation Support weeks after receiving a case and about half way through the discovery process to discuss budget. This is often too late in the process to be helpful and often ends up costing the client more. Early talk about costs can have a profound impact on early case negotiations depending on the volume of data to be processed. Use budget tools to help calculate costs. Formulae based spreadsheets, or budgeting software can drastically increase the accuracy of the electronic discovery budget for Litigation Support. It is important to factor in not only the amount of data to process, but also the impact that amount of data has on the review time. The greater the amount of data to review, the greater the cost to review is going to be. Budgetary tools also force the entire team to get to know that data. Immediately notify the litigation team anything that might affect the budget throughout the lifecycle of the case. Often the volume of data or the complexity of the data will increase the cost of the case. Litigation budgets are based on assumptions. As the case proceeds, hard facts gathered through the discovery process impact these assumptions. In conclusion, the best defense is the best offense. Start the communication on cost of e-Discovery as early as possible with your case team. This will trigger a more thorough discussion of risk assessment of engaging in defense of a case. Your input on the budgetary considerations of e-Discovery can have a dramatic influence how the case is litigated. Jeff Steve, Esq., is based on Los Angeles, California where he works for eClairs, Inc., an e-Discovery and computer forensic consultancy and service provider dedicated to helping law firms and corporations classify, process and review electronically stored data. Jeff has over 18 years of experience in litigation technology. He can be reached at +1.213.270.1465, jsteve@eclaris.com or through www.eclaris.com. NB: This article appears in the January 2010 issue of the Association of Litigation Support Professionals  

The Federal Courts adopted amendments to the Federal Rules of Civil Procedure in 2006.  Among the reasons for adoption of the Federal Amendments was that “[w]ithout national rules adequate to address the issues raised by electronic discovery, a patchwork of rules and requirements is likely to develop. See Report of May 27, 2005, as revised July 25, 2005 (the “Advisory Committee Report), at 23, available at http://www.uscourts.gov/rules/Reports/ST09-2005.pdf.  Yet, while the Federal Rules approach to ediscovery does provide guidance, there remains a patchwork of requirements and in many cases an absence of requirements at the state level.  As of September 2009, 23 states have enacted state ediscovery rules. ( Alaska, Arizona, California, Idaho, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, North Dakota, Ohio, Tennessee, Texas, Utah and Virginia. See, Allman, Thomas Y., State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update (as of September 2, 2009) Available at http://www.ediscoverylaw.com/uploads/file/State%20Rulemaking%20-%20Allman.pdf.  Each of those states takes a slightly different approach; some follow the Federal Rules almost verbatim and others, like California, follow the federal structure but in quite different terms. There have also been attempts to develop uniform rules for ediscovery.  In August of 2007, the National Conference of Commissioners of Uniform State Laws ("NCCUSL"), best known as the author of the Uniform Commercial Code, approved the Uniform Rules Relating to the Discovery of Electronically Available information.  Available at http://www.law.upenn.edu/bll/archives/ulc/udoera/2007_final.htm. The result is that there are federal rules, various state rules, court guidelines and proposed uniform rules.  Thus in practice, there is a patchwork which is further complicated by the presence of many specific local rules.  In those states which lack explicit electronic discovery rules, attorneys are often left searching for guidance because so few discovery issues become the subject of printed appellate decisions.  Attorneys who become familiar with the federal rules are often perplexed about how to approach ediscovery in the state trial courts.  This article will provide some practical suggestions for handling ediscovery at the state level, particularly in those jurisdictions where rules are absent.  In essence it will conclude that the procedures which have become best practices at the federal level follow logically from the nature of the evidence itself, and the principles apply to all electronic discovery at the federal and state level. Identifying Electronically Stored information (“ESI”).  ESI is essentially any information created or stored in digital form.  Some state rules, such as those in California, provide specific definitions, but as a general way to identify ESI, anything that is on a computer, or storage drive, or cell phone, or hard drive, or an mp3 player for example is ESI.  ESI presents unique challenges for several reasons: it is dynamic (constantly changing), voluminous, requires special software and tools to render it meaningful, and ESI contains metadata (data about the data).  The first challenge for the attorney is identifying the locations of the ESI, and determining if there are any special challenges with respect to their evidence.  Is it so voluminous that some tool is required to cull the volume?  Is it in a form, such as backup tapes, that may be difficult and costly to process?  Is there metadata that is relevant to this case that may need to be preserved?  The attorney will find it useful to interview the client, communicate with the IT staff, and possibly to retain an outside ediscovery expert to prepare a data map.  Communicate with Opposing Counsel.  The Federal Rules take an approach that attorneys should “meet and confer” to discuss the handling of ESI.  Not all states specifically require “meet and confer” with respect to ESI, and many states do not include a formal “meet and confer” for discovery generally.  Attorneys need to check the specific requirements of the local rules.  Regardless of the specific requirements resolution of a few questions between opposing counsel early in the litigation will potentially keep the ediscovery process and costs under control.  These issues are reaching agreement on the form o