Guidance Software adds Data Reuse Feature to EnCase eDiscovery

There are two reasons for referring you to the latest additions to Guidance Software’s EnCase eDiscovery. The first is the addition of functionality to identify and reuse data which has already been collected, allowing searches of data collected for previous litigation or investigations. The second is the video which Guidance has released to explain the new functionality, a model of simplicity and clarity.

EnCase eDiscovery is Guidance Software’s flagship application for network collection of data from across all or any of a company’s data sources. It has moved on from mere collection (not that collection is trivial) to include legal hold, first-pass review, pre-collection analytics and other tools to enable decisions to be made quickly and early in the litigation or investigation. The reality for many companies is that the same custodians and the same time-frames recur in multiple cases – however wide or narrow the definition of a “key player” (itself an open question as a result of the KPMG case) the relevant decision-making and information-flow in most companies lies in relatively few hands. Companies therefore find themselves collecting the same data over and over again.

The data reuse feature is designed to minimise this. However efficient a collection is in terms of network traffic (and Guidance prides itself on this) the ability to make use of existing stores cuts down the traffic and speeds up collections, particularly from mobile workers. I will demonstrate my own commitment to data reuse by pointing you to an article about the new feature by Evan Koblentz at LTN.

Guidance Software has been revamping its website which is now one of the best, with simple navigation to the main headings, clear divisions between different types of information and an understated colour scheme which catches the eye precisely because it does not scream for attention. This extends to the video which Guidance has released about the new data reuse feature, whose simple illustrations (backed by a sober narrative from Russ Gould, Director of Product Marketing) convey so much more than the breathless excitement endemic in most American marketing materials.

I was present at the meeting of Guidance Software’s Strategic Advisory Board when this development was first discussed and, as with other recent developments from the company, it is interesting to trace a new feature from its origins in user requests through to release.

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KPMG Judge Kicks the Sisyphean Stone of Proportionality Back Down the Hill

Those of us who think that the US Federal Rules of Civil Procedure relating to preservation are utterly bonkers get powerful reinforcement from a case brought against KPMG in the Southern District of New York. The plaintiffs are described as “entry-level auditors” and their claim is for overtime payments. A US Magistrate Judge has ordered that KPMG must preserve the hard drives of computers used by anyone who might join in the action. The Chamber of Commerce has filed an amicus brief, as have the Washington Legal Foundation and the International Association of Defence Counsel, asserting between them (I summarise) that the order is both wrongly made and “profoundly significant” (and not in a good way) for businesses.

An article by Alison Frankel summarises the issues and gives links to both amicus briefs and to the order.

One must, of course, be careful up to a point in commenting adversely on the rules of another jurisdiction. I am careful also to say that it is the rules and case law as they have developed which are “bonkers”, rather than the judge. The gist of the amicus briefs is that findings like this exacerbate an already disproportionate and over-expensive situation. I have recently written about the differences between the US and UK rules on this subject and am about to do so again in response to thoughtful comments made on my articles by Howard Sklar of Recommind and Philip Favro of Symantec. For today’s purposes, I will avoid contention (to the extent that the description “bonkers” can be seen as non-contentious) and merely point you to the story.

I am helped in this by the succinct and clear form of the amicus briefs. The WLF and IADC brief makes two points. The first is effectively a proportionality point whose core is “that the decision of the Magistrate Judge, by condoning broad ESI preservation orders without regard to their cost, will skew the outcome of civil litigation by (for all practical purposes) forcing defendants to enter into settlements as a less expensive alternative to complying with preservation orders”. The second challenges the judge’s finding that every former employee who might join in the action qualified as a “key player” whose hard drives must be preserved – “such a broad definition of a “key player” is unprecedented; amici are concerned that acceptance of that definition in the class action context will lead to an exponential increase in discovery costs for class action defendants.”

The first of these has deep implications because “any economically rational defendant would consider settling the litigation rather than incurring such a large discovery expense”. This, amici say, is permitting the use of procedural rules to alter substantive rights, which was not the intention of Congress. To me, who repeatedly bangs on about the “overriding objective” in the UK rules and the “just, speedy and inexpensive” equivalent in FRCP Rule 1, such an order is self-evidently disproportionate to any perceived risk of injustice to the plaintiff’s and (by almost inevitable corollary) represents injustice to the defendants. The factual question as to the definition of “key players”, with its analysis of what was said about them by Judge Scheindlin in Zubulake, is also interesting to those of us who urge an intelligent focus on what really matters in place of a grapeshot approach to preservation.

First Advantage to speak at Litigation Summit in Frankfurt 23-24 November

By the end of next week, I will have spoken at four eDiscovery events in Germany during the year, a four-fold increase on any previous year. I do not take this personally, as it were – there is growing interest in eDiscovery, as well as in the wider subjects of dispute resolution and regulation. There is a Litigation Summit coming up in Frankfurt on 23 to 24 November which I had not spotted until First Advantage Litigation Consulting drew it to my attention.

Michael Becker, Regional Director of Litigation at First Advantage Litigation Consulting is one of the speakers. He says:

“The rise in cross-border trade has been accompanied by an increase in cross-border litigation, arbitration and regulatory investigations. The underlying causes of these disputes are, broadly speaking, the same as they have always been, but with an added layer of complexity as companies now litigate and respond to regulatory matters in a variety of jurisdictions, with varying legal frameworks and cultural nuances. Understanding your exposure can help minimise risks and there are a lot of proactive measures that legal professionals can take to ensure that they are better prepared to deal with such matters.”

This puts it very well. To judge by the speaker list, this will be a high-level conference aimed at those who are already alert to the problems which arise when “varying legal frameworks and cultural nuances” collide. They will want practical advice on how to deal with the problems, which First Advantage is well able to give them.

Leaving aside the sophisticated players on the speaker list, EU audiences are in a sense a mirror of those to whom I speak in the US. US companies and lawyers have a vague sense that electronic discovery is more restrictive in the EU but gasp at the limitations which data protection, and privacy in particular, impose on their God-given right to collect everything. EU audiences have a similarly ill-defined understanding that US discovery is an intrusive and expensive activity to be repelled or (preferably) ignored.

Neither position is tenable. There are certainly cases where it is impossible to comply with the rules in one jurisdiction without breaching those of the other; that is a commercial reality which parties are better off knowing about in advance then discovering in the middle of litigation or an investigation. There are many more cases where transparency and the “proactive measures” to which Michael Becker refers can mitigate the risks and help find a way through the conflicting obligations.

Conferences like this are a good way to find out what can be done, both from companies who face these problems weekly and from those who advise them. I will not be at this one (my last foreign trip of the year is next week) but I look forward to hearing what is said.

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