eDiscovery & Litigation 
Management Solutions

Daniel Gold
Twitter: @LexisGold
E-discovery
Cases

1

Benefits of
“The Cloud”

2
Growth in
Data

3
E-discovery
Cases

1

Benefits of
“The Cloud”

2
Growth in
Data

3
eDiscovery cases 
on the rise

Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011
Sanction filings on the rise

Over 50% increase in 1 year!

Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2...
Sanction awards on the rise

Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011
1989
Judge Wayne E. Alley
“

If there is a hell to which
disputatious, uncivil, vituperative
lawyers go, let it be one in which
the damned are etern...
Plaintiff’s attorney “simply did not

understand the technical

depths to which electronic
discovery can sometimes
go.”

C...
How many times can a litigant ignore his discovery
obligations before his misconduct catches

up with him … the record sho...
Plaintiff has evidenced a pattern

of
inexcusable disregard for the
authority of this Court … and the larger
civil discove...
There still is no doubt in this Court's mind that this

massive discovery failure resulted
from significant mistakes,
overs...
“Those who cannot remember the past
are condemned to repeat it … the duty to
preserve means what it says and that a failur...
The defendant’s “acts of spoliation be
treated as contempt of this court, and
h
that as a sanction ... 
 e be imprisoned
f...
To impose sanctions for
spoliation in the 4th circuit,
there must be: 

1) bad faith

2) willfulness,

3) gross negligence...
Rule 37(b)(2)

Thanks	
  to	
  Ralph	
  Losey	
  on	
  the	
  inspira2on	
  on	
  the	
  graphic!	
  
The defendant willfully violated … [had]
blatant disregard for the Court's Discovery
Order … [and showed a] lack of
apprec...
The defendant had to provide a copy of this Order
to every Plaintiff in every case it had against it
going back two years ...
Lawyers, Clients & Judges “have an
interest in establishing a culture

of cooperation in the discovery
process. Over-conte...
“…It is not in anyone’s interest to waste
resources on unnecessary disputes, and
the legal system is strained by

‘gamesma...
The essence of the proportionality principle
is that the legal system ought not to

make e-discovery so burdensome
that pe...
Ultimately, our

challenge is to
achieve a proportional result, so
that we don't spend $500,000 on
electronic discovery in...
The idea is to take the 100
gigabytes of data you just collected
… process and review only what is
potentially relevant. Y...
E-discovery
Cases

1

Benefits of
“The Cloud”

2
Growth in
Data

3
What s a gigabyte?
256 kb!
1.4 MB!
100 MB!
1 GB!
75,000

Number physical pages that equal 1GB of data
350,000
Number of physical pages that make up 1 DVD of data
Cornell Law Library!

1 Terabyte
35	
  
Library of Congress!
17 Million Books!

137 Terabytes
36	
  
1,024 TB
equals 1 Petabyte
Want to see what a
petabyte looks like?
16GB iPad!
2,717 feet tall!!

2,604 feet tall!!

62,500 fully
loaded 16GB iPads!
Burj Dubai Tower!
1,048,576 TB
equals 1 Exabyte
1,073,741,824 TB
equals 1 Zettabyte
1,099,511,627,776 TB
equals 1 Yottabyte
The bad news?
It won t get better.
800%
The growth of “Big Data” (massive amounts of unstructured
data that are not traditionally stored in a Relational form...
Client data is doubling

every 3 years

IDC (International Data Corporation)
estimates that by 2020, transactions on the
I...
Court and Regulatory-Imposed ESI
Federal and State Rules and Case Law
Court Imposed Responsibility to Monitor Client’s ESI...
E-Discovery spend to hit

$1.5B

by 2013

Gartner Research Study 2011
Average Outside Counsel Total Litigation Costs

$66M increase
in 8 years
Source: Lawyers for Civil Justice et al., Stateme...
E-Discovery spend increased

12%

over last year

Source: Fulbright's 7th Annual Litigation Trends Survey Report 
400%
Increased demand for AFA’s since 2008
Processing	
  
Preserva2on	
  
Informa2on	
  
Management	
  

Document	
  
Review	
  

Iden2fica2on	
  

Produc2on	
  

Pre...
E-discovery
Cases

1

Benefits of
“The Cloud”

2
Growth in
Data

3
What is the cloud?

54	
  
Electric Grid
55	
  
3 flavors
IaaS

(Infrastructure-as-a-Service)

PaaS
(Platform-as-a-Service)

SaaS
(Software-as-a-Service)
61	
  
Gartner Highlights Key Predictions for IT
Organizations & Users in 2010 and Beyond


By 2012, 20 percent of businesses wil...
What about law firms?
64	
  
Why use it for your firm?
Increase your firm's capacity
Decrease data management costs
Reduce your risk
Increased productivi...
What do you look for?
Managed Solutions#

On-Demand Storage#

Online Review#

Dedicated Field Engineers#

Disaster Recover...
Ethical Considerations
Professional Ethics Committee of the
Florida Bar Op. 10-2 (2011)
Pennsylvania Bar Association Ethic...
Ethical Considerations
“a law firm may contract with a
vendor of software as a service
provided the lawyer uses
reasonable ...
Most lawyers are already dependent upon some
form of SaaS whether it’s voice mail or email or
Lexis research trails.
Lawye...
“As the technology and
products improve, cloudcomputing platforms will
become a more palatable
alternative for large and
s...
So now what?
4-fold solution to handling eDiscovery
1. Lawyers, technology, firm management =
eDiscovery Team
2.  Education and training...
Questions to ask:
What few things must absolutely go right in
order for you to have protocol in place for
handling eDiscov...
Questions to ask:
What is your budget?
What is the volume of documents?
What kind of data do you have?
What is your timefr...
Questions to ask:
Can this really be done in-house?
Do you have an eDiscovery process?
Is there firm-wide buy-in process th...
Questions to ask:
Is a hosted solution or an in-house software
solution makes sense?
If you chose in-house, could you demo...
LexisNexis E-Discovery Solutions
Gain greater control over e-discovery with flexible,
integrated software and hosting optio...
Daniel Gold
Twitter: @LexisGold
LexisNexis CaseMap National Webinar
LexisNexis CaseMap National Webinar
LexisNexis CaseMap National Webinar
LexisNexis CaseMap National Webinar
LexisNexis CaseMap National Webinar
LexisNexis CaseMap National Webinar
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LexisNexis CaseMap National Webinar

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LexisNexis CaseMap National Webinar

  1. 1. eDiscovery & Litigation Management Solutions Daniel Gold Twitter: @LexisGold
  2. 2. E-discovery Cases 1 Benefits of “The Cloud” 2 Growth in Data 3
  3. 3. E-discovery Cases 1 Benefits of “The Cloud” 2 Growth in Data 3
  4. 4. eDiscovery cases on the rise Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011
  5. 5. Sanction filings on the rise Over 50% increase in 1 year! Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011
  6. 6. Sanction awards on the rise Source: Gibson Dunn 2011 Mid-Year eDiscovery Update, July 22, 2011
  7. 7. 1989
  8. 8. Judge Wayne E. Alley
  9. 9. “ If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes. Kreuger v. Pelican Prod. Corp., C/A No. 87-2385-A, slip. op. (W .D. Okla. Feb. 24, 1989).
  10. 10. Plaintiff’s attorney “simply did not understand the technical depths to which electronic discovery can sometimes go.” Chief Judge Arthur J. Gonzalez GFI Acquisition, LLC v. Am. Federated Title Corp. (In re A&M Fla. Props. II, LLC), 2010 Bankr. LEXIS 1217 (Bankr. S.D.N.Y. Apr. 7, 2010)
  11. 11. How many times can a litigant ignore his discovery obligations before his misconduct catches up with him … the record shows that [Plaintiff] failed to comply with a document request and two court orders compelling production of materials within the party’s control. Judge Neil Gorsuch Lee v. Max International, LLC, 2:09-CV-0175-DB, US Court of Appeals, 10th Circuit (May 3, 2011)
  12. 12. Plaintiff has evidenced a pattern of inexcusable disregard for the authority of this Court … and the larger civil discovery process and warrants imposition of substantial ameliorative and punitive sanctions. Judge Mary S. Scriven  Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 U.S. Dist. LEXIS 400 (M.D. Fla. Jan. 5, 2010)
  13. 13. There still is no doubt in this Court's mind that this massive discovery failure resulted from significant mistakes, oversights, and miscommunication on the part of both outside counsel and Qualcomm employees. Judge Barbara L. Major Qualcomm Inc. v. Broadcom Corp., 2010 U.S. Dist. LEXIS 33889 (S.D. Cal. Apr. 2, 2010)
  14. 14. “Those who cannot remember the past are condemned to repeat it … the duty to preserve means what it says and that a failure to preserve records … will inevitably result in the spoliation of evidence.” Judge Shira Scheindlin Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 462 (S.D.N.Y. 2010)
  15. 15. The defendant’s “acts of spoliation be treated as contempt of this court, and h that as a sanction ... e be imprisoned for a period not to exceed two years” Judge Paul Grimm Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)
  16. 16. To impose sanctions for spoliation in the 4th circuit, there must be: 1) bad faith 2) willfulness, 3) gross negligence, or 4) ordinary negligence Judge Paul Grimm Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)
  17. 17. Rule 37(b)(2) Thanks  to  Ralph  Losey  on  the  inspira2on  on  the  graphic!  
  18. 18. The defendant willfully violated … [had] blatant disregard for the Court's Discovery Order … [and showed a] lack of appreciation of the discovery process in general. Judge T. John Ward Green v. Blitz U.S.A., Inc., 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011)
  19. 19. The defendant had to provide a copy of this Order to every Plaintiff in every case it had against it going back two years or pay $500k as a fine if it did not within 30 days. For the next 5 years, it has to attach a copy of this Order with its first pleading or filing on every new lawsuit, no matter in what capacity they are involved. Judge T. John Ward Green v. Blitz U.S.A., Inc., 2011 U.S. Dist. LEXIS 20353 (E.D. Tex. Mar. 1, 2011)
  20. 20. Lawyers, Clients & Judges “have an interest in establishing a culture of cooperation in the discovery process. Over-contentious discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge…
  21. 21. “…It is not in anyone’s interest to waste resources on unnecessary disputes, and the legal system is strained by ‘gamesmanship’ or ‘hiding the ball,’ to no practical effect … [and] it is an exercise in economy and logic.”
  22. 22. The essence of the proportionality principle is that the legal system ought not to make e-discovery so burdensome that people with meritorious claims are deprived of their ability to win. Richard A. (Doc) Schneider Partner, E-discovery Practice Group King & Spalding Source: The Metropolitan Corporate Counsel, April 2010
  23. 23. Ultimately, our challenge is to achieve a proportional result, so that we don't spend $500,000 on electronic discovery in a case that's worth $1 million. Browning Marean III Senior Counsel at DLA Piper
  24. 24. The idea is to take the 100 gigabytes of data you just collected … process and review only what is potentially relevant. You can wind up saving hundreds of thousands of dollars in a case. Kelly F. Farmer Manager of Data Governance and Discovery Services
  25. 25. E-discovery Cases 1 Benefits of “The Cloud” 2 Growth in Data 3
  26. 26. What s a gigabyte?
  27. 27. 256 kb!
  28. 28. 1.4 MB!
  29. 29. 100 MB!
  30. 30. 1 GB!
  31. 31. 75,000 Number physical pages that equal 1GB of data
  32. 32. 350,000 Number of physical pages that make up 1 DVD of data
  33. 33. Cornell Law Library! 1 Terabyte 35  
  34. 34. Library of Congress! 17 Million Books! 137 Terabytes 36  
  35. 35. 1,024 TB equals 1 Petabyte
  36. 36. Want to see what a petabyte looks like? 16GB iPad!
  37. 37. 2,717 feet tall!! 2,604 feet tall!! 62,500 fully loaded 16GB iPads! Burj Dubai Tower!
  38. 38. 1,048,576 TB equals 1 Exabyte
  39. 39. 1,073,741,824 TB equals 1 Zettabyte
  40. 40. 1,099,511,627,776 TB equals 1 Yottabyte
  41. 41. The bad news?
  42. 42. It won t get better.
  43. 43. 800% The growth of “Big Data” (massive amounts of unstructured data that are not traditionally stored in a Relational form in enterprise databases) in the next 5 years, says Gartner.
  44. 44. Client data is doubling every 3 years IDC (International Data Corporation) estimates that by 2020, transactions on the Internet will reach 450 billion per day! Enterprise-generated content will exceed 240 Exabytes!
  45. 45. Court and Regulatory-Imposed ESI Federal and State Rules and Case Law Court Imposed Responsibility to Monitor Client’s ESI Sanctions for Failure to Disclose Capability of In-House IT Systems & Administrative Costs Recovering IT Costs in Compliance with Ethical Rules Increased Regulatory & Litigation Workload
  46. 46. E-Discovery spend to hit $1.5B by 2013 Gartner Research Study 2011
  47. 47. Average Outside Counsel Total Litigation Costs $66M increase in 8 years Source: Lawyers for Civil Justice et al., Statement on Litigation Cost Survey of Major Companies (May 2010)
  48. 48. E-Discovery spend increased 12% over last year Source: Fulbright's 7th Annual Litigation Trends Survey Report 
  49. 49. 400% Increased demand for AFA’s since 2008
  50. 50. Processing   Preserva2on   Informa2on   Management   Document   Review   Iden2fica2on   Produc2on   Presenta2on   Collec2on   Analysis   Volume Relevancy
  51. 51. E-discovery Cases 1 Benefits of “The Cloud” 2 Growth in Data 3
  52. 52. What is the cloud? 54  
  53. 53. Electric Grid 55  
  54. 54. 3 flavors
  55. 55. IaaS (Infrastructure-as-a-Service) PaaS (Platform-as-a-Service) SaaS (Software-as-a-Service)
  56. 56. 61  
  57. 57. Gartner Highlights Key Predictions for IT Organizations & Users in 2010 and Beyond By 2012, 20 percent of businesses will own no IT assets. By 2013, mobile phones will overtake PCs as the most common Web access device worldwide. By 2014, over 3 billion of the world's population will be able to transact electronically via mobile or Internet technology. http://www.gartner.com/it/page.jsp?id=1278413
  58. 58. What about law firms?
  59. 59. 64  
  60. 60. Why use it for your firm? Increase your firm's capacity Decrease data management costs Reduce your risk Increased productivity
  61. 61. What do you look for? Managed Solutions# On-Demand Storage# Online Review# Dedicated Field Engineers# Disaster Recovery# World-Class Data Centers# Personalized Customer Service#
  62. 62. Ethical Considerations Professional Ethics Committee of the Florida Bar Op. 10-2 (2011) Pennsylvania Bar Association Ethics Opinion No. 2010-060 (2010) North Carolina Bar 2011 Formal Ethics Opinion 6 (2011) Iowa Committee on Practice Ethics and Guidelines Ethics Opinion 11-01 (2011) New York State Bar Association’s Committee on Professional Ethics Op. 842 (2010)
  63. 63. Ethical Considerations “a law firm may contract with a vendor of software as a service provided the lawyer uses reasonable care to safeguard confidential client information.”
  64. 64. Most lawyers are already dependent upon some form of SaaS whether it’s voice mail or email or Lexis research trails. Lawyers must also engage in periodic education about ever-changing security risks presented by the internet ... [and] if you don’t understand the technology and/or are not willing to keep updated as it develops, you will need to retain someone who will handle that for your firm. http://virtuallawpractice.org/2012/02/nc-cloud-computing-opinion-published/
  65. 65. “As the technology and products improve, cloudcomputing platforms will become a more palatable alternative for large and small firms alike.”
  66. 66. So now what?
  67. 67. 4-fold solution to handling eDiscovery 1. Lawyers, technology, firm management = eDiscovery Team 2.  Education and training 3. Cooperation and transparency 4. Metrics and new technology Ralph Losey Partner & e-Discovery Team Lead Jackson Lewis
  68. 68. Questions to ask: What few things must absolutely go right in order for you to have protocol in place for handling eDiscovery?
  69. 69. Questions to ask: What is your budget? What is the volume of documents? What kind of data do you have? What is your timeframe?
  70. 70. Questions to ask: Can this really be done in-house? Do you have an eDiscovery process? Is there firm-wide buy-in process that is needed? Do you have the people & resources needed to be successful?
  71. 71. Questions to ask: Is a hosted solution or an in-house software solution makes sense? If you chose in-house, could you demo the software before buying? What kind of training, rollout and implementation can you get? How long before everyone is up and running on the software?
  72. 72. LexisNexis E-Discovery Solutions Gain greater control over e-discovery with flexible, integrated software and hosting options. lexisnexis.com/ediscovery-solutions discoveryservices@lexisnexis.com
  73. 73. Daniel Gold Twitter: @LexisGold

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