In 1981 I was in 5th grade. One day a classmate, Jared, brought in this magical device called a Walkman. No kid in our school had ever seen one to my knowledge. Every time Jared brought in the Walkman it was if Moses was walking down Mt. Sinai with the Ten Commandments; except the tablets had buttons and played cassette tapes. Eventually I got to use the Walkman. I recall that it was like being transported into my own amphitheatre. When that thing was cranked you could barely hear yourself think, hear or talk.

Our Principal that year was named Kirby Newman. All the kids referred to him as “Kirby” and I am pretty sure we meant it in a less than respectful manner. I guess we thought it was a funny name. Back to the Walkman. The volume was cranked to 10 and I was blasting some cheesy 80’s song. I think it was Rapture by Blondie, but not 100% sure. I was standing near a group of friends at recess. We were at one end of the building and around the corner on the other end came Kirby. Now whenever Kirby was near we made sure that the warning call went out, similar to how the Yellow-bellied Marmot shrieks a warning signal when predators are near. Well, I happened to see him first and said softly, “hey everyone, here comes Kirby”. OK, I thought it was said softly. I actually YELLED it. Kirby double timed it over to me, pulled the headphones off my head and gave them to Moses, I mean Jared. He then grabbed me by the arm and escorted me to the Office. I guess he did not like being called Kirby despite it being his first name. Back in those days kids weren’t allowed to call adults by their first names.

This is a really good example of not having a firm grasp of the pitfalls of new technology. I thought I was broadcasting a message to a select few, but it was heard by Kirby and I am sure the whole playground. I learned the hard way…two days of detention, with Kirby!!!

What does this have to do with eDiscovery?

A lot if you think of the Walkman as Social Media, me YELLING as posting a message and Kirby as opposing counsel.

My message was not intended for anyone except for my small, select, trusted group of companions. This is similar to social media posts that may be intended for one person yet end up being available to everyone and then used against you. Former Representative Anthony Weiner knows a lot about this.

Another case that had nothing to do with Wiener was a personal injury case out of Georgia, Daniels vs. Atlanta Refrigeration. In this case a young woman was injured in an auto accident leaving with her with what she claimed as injuries that made it difficult for her to work and enjoy life. However, the young woman appeared to be telling a different story on Twitter after the accident. One such tweet included discussion around an “epic weekend” in New Orleans and showed pictures of her with friends at a beach for spring break. Another tweet went on to mention “I’m starting to love my scar”. These tweets and others gave the jury the impression that she wasn’t really as injured as claimed. Initially the plaintiff requested over $1 Million for her injuries. The ending dollar amount was slightly south of $150K and representatives for the plaintiff believed the tweets played a big role in the lower than anticipated amount. It was her “Kirby” moment.

So what does one do to ensure that posts, pictures, tweets, messages, etc cannot be used against one in a court of law?

The best answer is STOP using social media when your attorney tells you to stop using social media. If you are an attorney and reading this then please send this to your client so they don’t pull a “Kirby”.

OK, so the tweets, likes, messages, posts, pins, pokes and pictures have come to an abrupt halt. What about the stuff that is already out there? One suggestion is to check the privacy settings on all your social media sites and lock them down! Everything up in that “social media cloud” can and will be used against you!

One popular social media site, Facebook, allows a user to deactivate their page. This is not the same as deleting the page, which should NOT be done if you are involved in litigation or can reasonably anticipate litigation and the FB page may contain relevant information.

From FB on deactivation:

“When you deactivate your account, your timeline and all information associated with it disappears from Facebook immediately. People on Facebook will not be able to search for you or view any of your information.

If you’d like to come back to Facebook anytime after you’ve deactivated your account, you can reactivate your account by logging in with your email and password. Your timeline will be restored in its entirety (friends, photos, interests, etc.). Remember that you will need to have access to the login email address for your account in order to reactivate it.”

Also from FB regarding permanent deletion:

If you don’t think you’ll use Facebook again, you can request to have your account permanently deleted. Please keep in mind that you won’t be able to reactivate your account or retrieve anything you’ve added. Before you do this, you may want to download a copy of your info from Facebook. Then, if you’d like your account permanently deleted with no option for recovery, log into your account and fill out this form.”

I know from personal experience that a user can deactivate an account and then months later log back in and all the pictures and messages remain. How do I know? Because I have done it with my own account and based on the above message from FB one would have to go through some extra steps to permanently delete an account. Now this is interesting because a recent case, Gatto v. United Airlines and Allied Aviation Servs., et al., involved sanctions because a user deactivated his FB account. Did someone misspeak and say deactivate when they meant permanently delete? I don’t know.

What I do know is that from my experience, deactivating a FB account puts in a deep freeze like Han Solo in carbonite. Your data may suffer hibernation sickness when you reactivate, but after some time all is well and Han is smooching with Leia once again. However, unlike Han, it appears the data in this matter didn’t make it. The plaintiff in this case provided his FB credentials to defense counsel who proceeded to access his account. Plaintiff received a message that someone from an unknown IP address was trying to access his account so he deleted it and 14 days later it was permanently obliterated, as per FB’s policy. The court did not find this at all amusing and sanctioned plaintiff.

This situation may have been prevented if plaintiff (or defense insisted/requested) used the DIY function (not the best option IMHO) in FB, which allows a user to download and preserve all his/her data. Additionally, eDiscovery preservation tools exist that specifically deal with social media and cloud-based sites (e.g. X1 Discovery and AccessData). Wouldn’t it be great if the court knew that these tools existed too! At D4, we use such applications to ensure our clients preserve data in a reasonable fashion.

So what are the takeaways from all of this rambling?

1. Don’t pull a Kirby! – Don’t assume that only those intended to hear the message heard it.
2. What you do or say on social media sites will be used against you! – Self explanatory.
3. Lock it down! – Ensure that only you or those you trust can see your social media musings.
4. Preserve or deactivate, don’t delete! – Each site is different so make sure you are preserving evidence properly.
5. Reach out for help! – eDiscovery and Forensic experts do this for a living. If you are not sure how to properly preserve, collect, review, or produce ESI then make a call or send an email. This goes for judges, litigants, attorneys, etc.

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By Peter Coons, SVP, Advisory and Engineering Group

By Josh Headley, Discovery Engineer

Although this blog post is about Big Data, it will not feature stock photos of the tip of an iceberg bobbing peacefully around the sea while the giant frozen mass that comprises its core is hidden beneath the water’s surface. In true e-discovery pundit form, however, its title contains a movie reference. According to Pinterest coat-tail-riding site Repinly, two of the top ten categories on Pinterest, which hosts more than 30 million visitors per month, are wedding-related and have attracted more than 2.4 million followers. For better or worse, what is the end result of the 2.5 million U.S. weddings per year which tally over $40 billion dollars exchanged? You got it. BIG DATA.

If you’ve ever been married (I won’t ask how many times) or have at least attended a wedding you surely have an appreciation for the amount of time and the percentage of life savings the couple and their families contributed to the affair (no pun intended.) To capitalize on this resource expenditure, David’s Bridal has walked down the 2013 aisle with Big Data technology to help figure out what the bride and groom want, what their expectations are, what their budget is, and how far can that budget be stretched. Budget stretches can be accomplished by joining the forces of the physical shopping experience and the phenomenon of social media.

Think of all the information that can be used to improve the bride’s special day and provide exceptional financial returns to the organizers involved:

• A list of dresses, styles, and sizes that the bride has tried on in physical stores: what does she think of them and what were the reactions of others?
• Profiles of the bride’s parents, who will likely pickup much of the tab
• Products, artists, bands, books, and celebrities the bride “likes” on Facebook
• Products and services, even from other bridal outfits, that the bride has “pinned” to her David’s Bridal MyEvents mood-board or “inspiration board”
• Details of MyEvents “tasks” that the bride has assigned to her wedding party and family members
• Social information about the brides maids and maid of honor, hopefully to form a bond with David’s for their own eventual weddings
• Demographic and financial information about previous weddings at the same venue
• “Sentiment” gleaned from social media accounts owned by anyone on the guest list or in the wedding party

What does this all mean for electronic discovery? Simply put, it increases the complexity of the effort to identify, preserve, collect, and present ESI. It also raises privacy concerns and begs the question “how far is too far?” when corporations mine for useful data. Imagine all the sources of ESI that could be considered in a Bridezilla contract dispute with David’s or any number of subcontracted service providers.

Gone are the days when a wedding planner could nonchalantly glance at the size and quality of the bride’s engagement ring to estimate her wedding budget. Big Data is making that process even easier.

How is your firm planning for the future of Big Data? Let us know!

What is this TAR (Technology Assisted Review) that people are talking about, and what do they really mean by this term? Perhaps more importantly, why should you care?

Part 1 of this three-part article will discuss the terminology of TAR. Part 2 will drill into two specific statistical methodologies commonly used in TAR; namely, support vector and conceptual search, how they work, what they do and which are appropriate for particular use cases. Part 3 will focus on the practical: What do the cases say? How can parties use TAR in a defensible way? How can TAR help to achieve proportionality?

Today I will be in Las Vegas attending an electronic discovery conference. I was asked to not only attend the conference, but to speak on the topic of law firm security. What does law firm security have to do with electronic discovery you ask? Everything and then some.

Corporations allocate significant time and money for protecting their digital intellectual property. If you have ever met an information security professional, you know that they take their jobs seriously. Security is the reason the typical end user has to call IT every time they want to install an application. It is not job preservation; they are trying to protect the organization from malware, viruses and hackers, and sometimes the company’s own employees.

So what happens when outside counsel shows up and wants to extract email from the archiving system because the company is being sued? Usually what happens is the lawyers get the email and the security guys are holding their breath.

By Tom Groom, Vice President, Discovery Engineer

Sedona is known for its beautiful scenery. It is also known as a place that promotes health, harmony, convergence and tranquility. It is the perfect place to meet and discuss the future of eDiscovery.

The Sedona Conference® RFP+ Vendor Panel met last month to look at the current state of the industry and through dialogue, brainstorm on what we see on the horizon for the next five years. What is next for Technology Assisted Review? Do we need to add “BIG Data” to the glossary? Where does Information Governance intersect with eDiscovery? Has the RFP (Request for Proposal) process changed in today’s economy and does it need to be updated? We also discussed ideas on what needs to be done in the industry to increase eDiscovery acumen for the practitioner from a wide variety of viewpoints and how that would affect the role for this small technology advisory panel in the future.

The goal of the RFP+ Vendor Panel is to provide tools that enable a better informed marketplace that speaks the same language and will ultimately lead to reduced costs for all parties with higher quality and greater predictability. The deliverables we worked on last week involve finalizing the upcoming 4th Edition of the E-Discovery & Digital Information Management Glossary and the third edition of the Navigating the Vendor Selection Process.

D4 has been participating on this panel for several years and it was exciting to be a part of this group for the third year in a row. This group is indeed a “who’s who” in this space. Collectively, we’ve agreed to speak our minds when we meet, but the final output will be a collective conscience of what was discussed. Yes, Sedona may be the only place on the planet where that can happen. Time will tell.

ABOUT THE SEDONA CONFERENCE

The Sedona Conference® exists to allow leading jurists, lawyers, experts, academics and others, at the cutting edge of issues in the area of antitrust law, complex litigation, and intellectual property rights, to come together – in conferences and mini-think tanks (Working Groups) – and engage in true dialogue, not debate, all in an effort to move the law forward in a reasoned and just way.

The organization’s hallmark is its unique use of the dialogue process to reach levels of understanding and insight not otherwise achievable. The Sedona Conference® Working Group Series is designed to focus the dialogue on forward-looking principles, best practices and guidelines in specific areas of the law that may have a dearth of guidance or are otherwise at a “tipping point.” The goal is that the Working Groups, the open Working Group Membership Program, and peer review process, will produce output that is balanced, authoritative, and of immediate benefit to the Bench, Bar and general public.

Since the dawn of digital storage, litigation lawyers have conducted document reviews of electronically stored information (ESI) — as they did with paper — one document at a time, or in “linear” fashion. Later, parties used search terms to identify responsive documents, with mixed success at best.

Recently, sophisticated prioritization algorithms packaged as ediscovery software applications have exploded onto the scene as a much more efficient and cost-effective identification method, especially in cases involving enormous quantities of ESI.

Whether we call these software programs “predictive coding,” “technology-assisted review” or something else entirely, how do you know that they are right for you as a cautious and risk-averse in-house lawyer?  Is the science understandable and explainable? Is the cost worth the reward? Is the use of the technology defensible? How do the courts view it?  This article will address all of these questions and more.

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By Nicholas Clayton, Director of Discovery Services

We see trends come and go in the eDiscovery world—new products, new technology and changes in the law. Service providers, trying to be nimble, react to these developments, creating marketing and offering webinars to demonstrate expertise. This is great—I am all for marketing and webinars, but as a sales professional who has spent a number of years in this business, I believe that if we stay true to the basics, even if we don’t jump on the latest buzz, we ensure a successfully ran project. The following are my top three service provider basics.
1. COMMUNICATION:
As is the case with almost all relationships, communication is one of the most important cornerstones for a strong foundation. Strong internal communication within the service provider’s organization and strong communication between you and your service provider will take you most of the way to a well-run engagement. There are many team members that assist in the process of getting the project to the finish line so it is imperative that all internal components must communicate. Sales, client services, consulting, litigation support, processing, hosting, IT, analytics, and production may be involved with any project. If the sales person does not properly communicate with the client services or consulting team, there will be a ripple effect, which may lead to an undesirable outcome. Similarly, if the operations team does not properly communicate with the client services team, the client may receive incorrect reporting.

How will you know whether or not the service providers you are considering have strong internal communications? Ask them to describe their communication flow, including escalation of problems. They should have a description of their flow in place that they can promptly provide to you, and it should have few touch points—that is, the right people should be involved in communicating—not too few and not too many. Kind of a Goldilocks moment. Similarly, your service provider should respond promptly, keep you advised of project/case developments (often, if necessary) and alert you immediately should any issues arise.

2. BANDWIDTH:
Does the service provider have sufficient human and operational resources to get the current job done, and be ready for the next job? Are there too many points of possible failure because only a few people really understand the tools and workflow? Is one person wearing too many hats so that before you know it they are the only person who can really help you? (See Communication, above.) A team should have multiple experts—but not too many. Another Goldilocks example.

Operational bandwidth is also critical to support the rapid turnaround times so common in our industry. When choosing a provider partner, consider setting up a pilot project to vet their operational and human bandwidth. Don’t be fooled by how a provider characterizes their capability – It is your prerogative as a consumer to test them before committing on a larger scale.

3. ACCOUNTABILITY
While accountability can mean many things, I focus on my role as your main point of contact and my responsibility to deliver what was promised.

Things don’t always go as planned, so we have to remain accountable for the actual results. It is inevitable that mistakes will happen in any human-driven process. What matters is the frequency of these mistakes and how the provider responds to them. When choosing a long-term provider, simply ask them if they have proven metrics for Quality Control, deliverables, processing turnarounds times, hosting uptime etc. What is their response? If it is apparent you have caught them flat footed by asking this question, proceed with caution.

Delivering on what was promised is often harder than it sounds. If someone always says yes to deadlines that seem unmanageable, or does not provide alternative recommendations that may better fit the project’s needs, again, proceed with caution.

There are many more areas that we could dig into here but, in my opinion, these are three key building blocks for a sustainable and scalable relationship. There are many great providers and progressive technologies that have been developed to manage the demanding industry. My advice is to embrace technology, educate oneself on best practices and choose a partner that can help navigate these sometimes turbulent waters, and above all else, never forget about the basics.

By Cynthia Courtney, VP, Discovery Engineering

On the D4 blog and other blogs penned by experts in the e-discovery and litigation support fields, predictive coding, TAR, CAR—all powered by predictive analytics—has gotten tremendous coverage, especially over the last year. Working in this field has also opened my eyes to the range of ways in which predictive and linguistic analytics are used.

On April 1, I caught this segment on health news on NPR’s All Things Considered, which posed an interesting question: Were people happier in the 1950s than they are today? Or, as we believe—and watching Mad Men certainly supports this—were they more repressed, uptight, and depressed? It’s an intriguing question.

THE STUDY

A group of researchers set out to determine emotional states through an analysis of literature by exploring books from every year of the 20th century–over a billion words. NPR interviewed Alex Bentley, an anthropologist at the University of Bristol, to talk about the results of the analysis.

THE RESULTS

In 2010, Google had digitized about 4% of all books. Bentley and his colleagues at the University of Bristol decided to mine this Google database in order to track the use of words over time to see if certain words became more popular at identified points in history. Their computers analyzed 6 categories of emotions through all of the words they could identify that denotes the particular emotion: Sadness (115 words), joy (224), anger (146), disgust (30), surprise (41) and fear (92). The researchers initially believed that the evidence of these emotions—indicated by the use of the words exemplifying each category—would be relatively consistent over time. But what they found surprised them. They mapped all of their results onto a graph, with measurements of joy and sadness plotted on the Y-axis and the decades plotted on the X-axis. They saw that distinct peaks and valleys emerged—along the lines of key events of the 20th century. The 20s were the highest peak of joy. “They really were roaring,” says Bentley. Then, in 1941, at the beginning of World War II, the trend plunges dramatically into the sadness area of the graph, rising strongly thereafter and stabilizing during the 1960s and 70s.

What is interesting is that the books in the Google database were not only novels or non-fiction about current events, but also technical manuals and automotive repair guides—the entire kitchen sink of English-speaking writers and translators. Thus, says Bentley, “It’s not like the change in emotion is because people are writing about the Depression and people are writing about the war. There might be a little bit of that, but this is just, kind of, averaged over all books, and it’s just kind of creeping in.”

With the dramatic changes in culture during the 1960s and the advent of social media sites like Facebook where people can and do express anything, have the uses of these “emotion” words soared off the charts? No, and that is the most surprising part of the study. Instances of these words have declined throughout the 20th century and into the 21st. The exception? Fear-related words started to increase just before the 1980s.

HOW DOES IT APPLY TO LITIGATION?

All of this is fascinating, but what does it really tell us? And isn’t that the question that brings us back to the use of predictive analytics in litigation discovery? The Bristol Study appears to be a more objective and potentially accurate way—than self-reporting, for example—to gauge emotions. Similarly, with TAR/CAR/Predictive Coding, subject matter experts provide a baseline of relevance, then an algorithm, tweaked by human intervention, assesses the rest of the documents—with a degree of objectivity supplied by the predictive mathematics.

What uses of predictive and linguistic analytics have you seen in your non-work life?