Fil d’informations – E-Discovery – Droit – Technologies

Construction Cost Estimators – A Critical, Experienced-based Profession Friday, 18 May 2012

A professional construction cost estimator in an important team member of any  renovation, repair, sustainability, or new construction project.

Whether working for an Owner, Contractor, AE or as an independent consultant, a cost estimator’s role is to collaboratively review the many factors, variables, and information sources associated with a construction project and  to present an accurate total cost (the latter may include subtotals by Uniformat and/or MasterFormat categories, materials, labor/crews, productivity factors/coefficients, equipment, overhead/profit, etc.).

Advanced cost estimating and efficient project delivery management software can play an important role for Owners, Contractors, and AEs engaged in numerous projects vs. the exclusive use of Excel spreadsheets and/or manual processes.   Excel spreadsheets are error prone and don’t offer the productivity advantages of integrated software solutions:  multi-year, localized and easily accessed and maintained construction cost databases, visual estimating and QTO tools, multi-user collaboration with audit trails, ability to incorporate means and methods, specifications and field notes/variables, and more!

There are approximately 90,000 construction cost estimators employed in the United States and while the past several years have been a uniquely poor time period for the construction industry as a whole, the future is brighter.  The Department of Labor projects a 36% increase in demand for  cost estimators over the next several years.

Source: U.S. Bureau of Labor Statistics, Employment Projections program

via 4Clicks.com – Premier cost estimating and efficient project delivery software for Job Order Contracting – JOC, SABER, IDIQ, SATOC, MATOC, MACC, POC, BOA …


Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | pcholakis

The Fabric of Inadequate Search & Spoliation Allegations Friday, 18 May 2012

In a case involving claims of copyright infringement of fabric design, the tapestry of the Plaintiff’s discovery production was challenged, including allegations the Plaintiff:

Neglected to search for and produce several categories of documents; and

Deleted relevant emails.

The Defendants sought an order permitting a forensic examination of Plaintiff’s computer files based on the allegations the Plaintiffs deleted relevant emails. Prestige Global Co. v. L.A. Printex Indus., 2012 U.S. Dist. LEXIS 63550, 6-7 (S.D.N.Y. May 3, 2012).

However, the Defendants/Counter Claimant claims did not have the abrasion resistance to withstand judicial review.

Spinning a Judicial Opinion

Judge James Francis IV is no textile apprentice when it comes to discovery disputes. The Court quickly found the Defendants failed to show the Plaintiff did not conduct an adequate search for discovery.  Prestige Global Co., at *7.

The Court explained that the Defendant relied on testimony from one witness who said she was not shown the Defendant’s discovery requests and that she was not asked to search for “many” of the documents identified in the requests. Id.

Judge Francis explained:

[T]here is no requirement that a particular witness, even one designated under Rule 30(b)(6), conduct her own search for documents. Counsel, working with whoever may be the relevant custodians, generally search for documents responsive to a discovery request, and, according to Family Dollar, that is precisely what occurred here. Furthermore, Family Dollar has identified by bates number the documents that it produced in each of the categories about which Printex complains.

Prestige Global Co., at *7-8.

The Court held the Defendant made no showing that the Plaintiffs had engaged in spoliation of evidence and could have warranted a forensic examination of a computer hard drive. Prestige Global Co., at *8-9.

Spoliation, in its simpliest terms, requires that a party violated the duty to preserve. Prestige Global Co., at *8-9. The duty arises when a party “reasonably anticipates litigation.” Prestige Global Co., at *9-10.

The Court held that there was no evidence that the emails subject to the spoliation claims were deleted when the Plaintiff could have reasonably anticipated litigation.  Prestige Global Co., at *10.

As the Court explained:

The garments containing the accused design were produced for the 2008 and 2009 seasons, and any e-mails relating to them were in all likelihood deleted by the end of 2009. Yet, Family Dollar had no preservation obligation until March 2011, when Family Dollar first learned of the claims because Printex filed suit against it in California. Therefore, no forensic examination is warranted.

Prestige Global Co., at *10-11.

Bow Tie Law

There are two interesting issues in this case: searching for responsive discovery and the duty to preserve.

On a fundamental level, the duties of competency and candor to the Court require adequate searches for relevant discovery.  However, in a company of 3,000 individuals, that does not necessarily mean that everyone in the company subject to the duty to preserve must conduct searches for responsive ESI.  Moreover, that could lead to the “fox guarding the henhouse” situation best avoided in eDiscovery.

The concept of “relevant custodians” is one that should not be forgotten by attorneys. Many companies have email and content management systems that records managers and/or ESI consultants can search for responsive ESI. This requires client interviews to determine the relevant custodians and understanding not just who was involved in the facts of the lawsuit, but any terms of art they used in communicating and what technology used in the normal course of business to communicate.

After a content management system is used to enact a litigation hold and export ESI for data reduction, there are several options for attorneys conducting review. Deploying software with data analytics that can learn from a skilled reviewer, enabling the software to “predict” other responsive ESI is one option; Early Case Data Assessment software is another to narrow a dataset to relevant ESI; at a minimum, attorneys should have the data de-duplicated and other data reduction strategies commonly used by litigation support providers before beginning traditional review.

The “triggering event” for the duty to preserve is a fact intensive exercise for many attorneys. They need to understand both their client’s data retention and destruction policies (let alone whether the client was following their policies) and when the duty to preserve began.

ESI that is destroyed as part of regular business operations without a duty to preserve is not subject to spoliation challenges. However, this requires that a party understands which of the 14,000 records retention laws in the US apply to their company; they follow their data retention/destruction policy; and that duty to preserve was triggered after data was destroyed in the regular course of business.


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iConect User Conference Friday, 18 May 2012

I attended the iConect User Conference in Ft. Lauderdale, Florida last month. I have been a guest lecturer for several iConect webinars and it was great to meet many from the team in person.

The Conference was content driven, with a keynote by Chris Dale of the e-Disclosure Information Project.  Chris is always a great speaker, sharing his history of practicing law, getting involved with technology and where eDiscovery is going. Chris did warn that law schools are not preparing students enough on eDiscovery.

e-Discovery luminary Browning Marean from DLA Piper spoke on litigation holds and preservation. Browning is a classy presenter, who could have been a sports broadcaster in another life, and highlighted the major issues in preservation.

A “dramatically lit” Browning Marean presenting on litigation holds.

Cindy Williams, CEO of iConect, invited me to moderate a panel discussion on the Future of Review. The panel had an all-star line-up, including Mikki Tomlinson of the EDJ Group Inc, Vivian Tero of IDC, Chris Dale and Browning Marean.

The Future of Review panel had the following takeaways:

Attorneys will always practice law

Technology will enable review to go faster and take fewer “big firm” attorneys to conduct discovery review

Law schools are not preparing future attorneys with the education they need on eDiscovery

New technologies, currently used by government agencies, will change eDiscovery, such as with facial recognition software for photos and video

I enjoyed seeing several demonstrations of iConect’s XERA. I was impressed with their YouTube video of using XERA on the iPad.

I appreciate iConect inviting me to their conference and look forward to attending next year.


Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | bowtielaw

Courts Increasingly Cognizant of eDiscovery Burdens, Reject “Gotcha” Sanctions Demands Friday, 18 May 2012

Courts are becoming increasingly cognizant of the eDiscovery burdens that the information explosion has placed on organizations. Indeed, the cases from 2012 are piling up in which courts have rejected demands that sanctions be imposed for seemingly reasonable information retention practices. The recent case of Grabenstein v. Arrow Electronics (D. Colo. April 23, 2012) is another notable instance of this trend.

In Grabenstein, the court refused to sanction a company for eliminating emails pursuant to a good faith document retention policy. The plaintiff had argued that drastic sanctions (evidence, adverse inference and monetary) should be imposed on the company since relevant emails regarding her alleged disability were not retained in violation of both its eDiscovery duties and an EEOC regulatory retention obligation. The court disagreed, finding that sanctions were inappropriate because the emails were not deleted before the duty to preserve was triggered: “Plaintiff has not provided any evidence that Defendant deleted e-mails after the litigation hold was imposed.”

Furthermore, the court declined to issue sanctions of any kind even though it found that the company deleted emails in violation of its EEOC regulatory retention duty. The court adopted this seemingly incongruous position because the emails were overwritten pursuant to a reasonable document retention policy:

“there is no evidence to show that the e-mails were destroyed in other than the normal course of business pursuant to Defendant’s e-mail retention policy or that Defendant intended to withhold unfavorable information from Plaintiff.”

The Grabenstein case reinforces the principle that reasonable information retention and eDiscovery processes can and often do trump sanctions requests. Just like the defendant in Grabenstein, organizations should develop and follow a retention policy that eliminates data stockpiles before litigation is reasonably anticipated. Grabenstein also demonstrates the value of deploying a timely and comprehensive litigation hold process to ensure that relevant electronically stored information (ESI) is retained once a preservation duty is triggered. These principles are consistent with various other recent cases, including a decision last month in which pharmaceutical giant Pfizer defeated a sanctions motion by relying on its “good faith business procedures” to eliminate legacy materials before a duty to preserve arose.

The Grabenstein holding also spotlights the role that proportionality can play in determining the extent of a party’s preservation duties. The Grabenstein court reasoned that sanctions would be inappropriate since plaintiff managed to obtain the destroyed emails from an alternative source. Without expressly mentioning “proportionality,” the court implicitly drew on Federal Rule of Civil Procedure 26(b)(2)(C) to reach its “no harm, no foul” approach to plaintiff’s sanctions request. Rule 2626(b)(2)(C)(i) empowers a court to limit discovery when it is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Given that plaintiff actually had the emails in question and there was no evidence suggesting other ESI had been destroyed, proportionality standards tipped the scales against the sanctions request.

The Grabenstein holding is good news for organizations looking to reduce their eDiscovery costs and burdens. By refusing to accede to a tenuous sanctions motion and by following principles of proportionality, the court sustained reasonableness over “gotcha” eDiscovery tactics. If courts adhere to the Grabenstein mantra that preservation and production should be reasonable and proportional, organizations truly stand a better chance of seeing their litigation costs and burdens reduced accordingly.

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Philip Favro

Martyn Christian from @Kofax on #AIIM and the #CIP (Certified Information Professional) Friday, 18 May 2012

Martyn Christian is Chief Marketing Officer (CMO) for Kofax. He is responsible for all marketing initiatives, including brand, product, industry and field marketing functions. Martyn has more than 25 years of marketing and general management experience within the software industry.

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MartynJM:  Martyn, you rejoined the AIIM Board last year.  What drove you to commit to a "second term?"

MC:  The Information Management industry is unique in its ability to reinvent itself, which means new opportunities from a personal and professional standpoint. My first term on the board was a significant learning experience for me, as well as a chance to give back to the industry that has given me a wide range of great career opportunities for more than 20 years.

JM:  As you think about Kofax's employees and customers and partners, how can AIIM be of greatest assistance?

MC:  I am absolutely “captured” by the CIP program. I think it is really what the industry needs to get to the next level of relevance and growth. I want everyone at Kofax and all our partners and customers to embrace it. It should give everyone the chance to contribute even more fully to the market as well as fuel our company’s growth.

JM:  You just became the second AIIM Board member to pass the Certified Information Professional exam.  Tell me a little bit out the experience.

MC:  I believe Michael Croal (from Cornerstone Advisors) from beat me to be first. I have been in the industry for 20+ years so I assumed I could get a substantial way down the certification process  without significant study time. It turned out I could, but the certification test highlighted for me that I need to continue striving to keep current and broaden my personal knowledge base via AIIM and other best practice sources.

JM:  How important do you think information professionals will be to Kofax in the year's ahead?

MC:  Information professionals are becoming essential, it’s just a matter of time.

-----

Help revolutionize your organization's processes.  Become aCertified Information Professional.  Get a free white paper that explains why.

Test your skills.  Take our Certified Information Professional assessment.

 

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | John Mancini

Something for everyone at IQPC’s Information Governance and eDisclosure Summit Friday, 18 May 2012

If you want a rounded account of IQPC’s successful Information Governance and eDisclosure Summit in London this week, this is not the place to find it. I was involved in five events over the three days and spent most of the rest of the time talking to providers, judges, lawyers and in-house eDisclosure people from [...]

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Chris Dale

How I Blog So Much? Friday, 18 May 2012

Ralph_head_BWI get asked all the time how I blog so much. (Funny, people rarely ask me why.) Because I get asked this question so often, I decided to share bits of an interview I did recently for Andrew Bartholomew of e-Discovery Beat. I told him he could ask me anything, except, of course, for the questions that he really wanted to ask concerning a particular case that my law firm is handling.

Andrew put the audio of the entire interview online, and added an edited transcript of selections in two segments: part one and part two. His first question out of the box concerned my obsessive blogging. Actually, he did not call it that, he was quite flattering. But that is how my wife refers to it. Here is how my answer begins. For the full story please see, what else, my blog.

Losey: When I first started doing this in 2006, the blog posts were shorter and I didn’t provide a whole lot of analysis. I was mainly talking about new cases. But after doing this every week for five-and-a-half years now, it has become second nature. I find that my writing evolves as my own understanding evolves.

I’m pretty opinionated at this point because I've been doing it so long. I have become the analysis and opinion guy in e-discovery. I don’t try to report on each new case that comes out. ...

Now would someone please explain to my wife that blogging is not just an narcissistic, obsessive waste of time?

Image by Ralph Losey

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560 – Une visite dans l'antre des Archives secrètes du Vatican... Friday, 18 May 2012

... du moins, ce qu’on veut bien nous en montrer. Merci à Qim Borràs pour la référence sur son mur Facebook de cette vidéo, une première, semble-t-il, qui attise notre curiosité sur la mémoire organisationnelle de l’Église catholique. Comme vous pourrez le constater, rien à voir avec la description qu’en avait fait Dan Brown dans son célèbre roman Anges et démons.

Bonne visite :



À noter que la version de luxe du livre Vatican Secret Archives (33 exemplaires seulement, dont trois sont réservés pour le Pape, la Bibliothèque du Vatican et les Archives secrètes du Vatican Secret) peut être acquise pour la modique somme de 4950 €. Sur demande, l’éditeur peut en publier des versions en italien, en anglais, en français or en allemand. L’ouvrage dans lequel sont reproduits 105 documents est aussi disponible dans une version au prix plus abordable en français, en néerlandais, en anglais et en italien. Un beau livre pour collectionneurs avertis.

Michel Roberge

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Twitter Weekly Updates for EUdiscovery Friday, 18 May 2012

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National BIM Standard – United States™ (NBIMS-US™) Version 2 (V2) – Released May 2012 Thursday, 17 May 2012

National Institute of Building Sciences buildingSMART alliance™ has released The National BIM Standard-United States™ (NBIMS-US™) Version 2 (V2).  The document is intended to cover the full life cycle of buildings—from planning, design and construction to operations and sustainment.

via www.4Clicks.com – Premier cost estimating and efficient project delivery software – JOC, IPD, SABER, IDIQ, SATOC, MATOC, MACC, POCA, BOA – exclusively enhanced 400, 000 line item electronic RSMeans Cost Data.


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More News on Plaintiffs' Effort to Recuse Peck Thursday, 17 May 2012

Red_clip_papers_400In the latest round of Monique da Silva Moore v. Publicis Groupe and MSLGroup, Magistrate Judge Andrew Peck denied an amicus brief in support of the plaintiffs' motion for his recusal, Sean Dohery writes.

The brief was filed by Richard E. Flamm, a Berkeley, Calif.-based attorney and author of Judicial Disqualification: Recusal and Disqualification of Judges retained by the plaintiffs as an expert witness. Peck denied the motion to file the brief, writing "an alleged amicus brief that is paid for by plaintiffs is hardly necessary or appropriate." Read the full story on LTN online.

For more on the plaintiffs' recusal efforts, read their reply memorandum supporting the motion for recusal (.pdf) and its supporting exhibits (.pdf), filed May 10.

Image by Monica Bay

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7th Circuit Holds Cell Phone Videos Are Protected Thursday, 17 May 2012

Chicago_federal_center400Every time a public figure speaks these days, smartphones are there to record the speech.

A key question: Is this legal?

That was the issue addressed last week by the Seventh Circuit Court of Appeals. The case is American Civil Liberties Union of Illinois v. Alvarez, 7th Cir. No. 11-1286 (May 8, 2012).

The court reviewed a challenge to the Illinois eavesdropping statute, which makes it a felony to audio record "all or any part of any conversation" unless all parties to the conversation give their consent, and includes any oral communication regardless of whether the communication was intended to be private.

In Chicago, citizens had started a "police accountability program," which included plans to openly make audiovisual recordings of police officers performing their duties in public places and –- a fact that makes the statute applicable -- speaking at a volume audible to bystanders. When persons involved in the program feared prosecution, the ACLU challenged the eavesdropping statute on First Amendment grounds on their behalf.

The court held that the statute, in these circumstances, violated the First Amendment.

Read the full article on LTN online.

The image is in the public domain

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Joshua A. Engel

25 million gigabytes brings prosecution of MegaUpload and its eccentric founder to standstill Thursday, 17 May 2012

The last time a preservation issue caused this much commotion, the Big Four accounting firm KPMG was fruitlessly disputing a court order forcing it to save 2,500 hard drives that had been used by former employees. Now there is a federal criminal case in Alexandria, Virginia involving a store of data so large it could replace the Library of Congress 1,250 times over.

Carpathia, a data storage company, is hosting 25 million gigabytes of data seized in January by the US government as part of its prosecution of the online “cyberlocker” MegaUpload and its eccentric founder Kim Dotcom. Carpathia is not involved in the criminal litigation, or any of the related civil suits, and does not own or want the content on its servers. Still, it is hemorrhaging thousands of dollars each day preserving what it calls “a historically and mind-bogglingly large amount of data” as several parties that express legal and internet interests in the content wrestle over its fate.

“Carpathia received preservation letters from various parties,” explains Marc Zwillinger, attorney for Carpathia, at Zwillgen, in Washington, DC. “Though it does not believe these letters have any binding effect, out of an abundance of caution, it decided that the right thing to do was petition the court before taking unilateral action.”

“Carpathia did not want to delete the data before giving the potential innocent third-party data owners an opportunity to petition the court for return of their digital files,” he continued.

To Continue Reading: Click Here
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Source: aceds.org
By: Robert Hilson

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Judge Peck Denies Plaintiffs' Amicus Brief on Recusal Thursday, 17 May 2012

In Monique da Silva Moore v. Publicis Groupe and MSLGroup before the U.S. District Court for the Southern District of New York, Magistrate Judge Andrew Peck denied on Monday an amicus curiae or friend-of-the-court brief filed in support of the plaintiffs' motion for recusal.

In Da Silva Moore, Peck is on the cusp of probing the reliability of predictive coding. Predictive coding is evolving in the computer lab and the courts with an aim to provide litigants an alternative to the time and cost of manual review of large document sets, such as the Enron data set. The promising technology's reliability and defensibility are still being worked out in the courts, but the Da Silva Moore plaintiffs would rather see Peck observe, rather than preside over, the case's e-discovery phase.

To Continue Reading: Click Here
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Source: law.com
By: Sean Doherty 

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Da Silva Moore and the Role of ACEDS Thursday, 17 May 2012

You may recall my glum assertion that no one wants to be on the record with respect to the Da Silva Moore case, which has certainly generated more “reality show” characteristics than any case I’ve previously seen.

So it was no surprise when some documents appeared in my Inbox from someone else who doesn’t want to be identified (with good reason), adding to the ever-growing crowd of people who have some knowledge about relevant facts, but due to the toxicity of the case have no desire to have their name affiliated with it.

I have placed a link to the documents I received here.

The documents are these:

  1. A request made by ACEDS: “Request for Examination of Report Filed by a Judicial Officer or Judicial Employee.” The request is for the reports filed by Judge Andrew Peck and is signed by Robert Hilson who lists his occupation as “legal reporter.” His LinkedIn page shows his occupation as Editorial Director for Association of Certified E-Discovery Specialists at The Intriago Group. This company does not appear to have a website – the URL for the domain name (intriagogroup.com) forwards to Microline PV, which has a holding page as a company funded by U.S. Equity Holdings. On LinkedIn, they have six employees identified, including Mr. Hilson.The Request for Examination appears to have been signed on February 27, 2012 and faxed to the Administrative Office of the U.S. Courts on February 29, 2012.
  2. A letter from ACEDS, also signed by Robert Hilson, that is dated February 28th, 2012 and was faxed on February 29, 2012, to the Office of the Committee on Financial Disclosure of the Administrative Office of the United States Courts which apparently accompanied the request form and specified that he was requesting "…financial disclosures for 2008, 2009, 2010 and 2011. If possible, please be sure to include all disclosures and/or compensation for “honoraria” and “teaching fees.”"
  3. A check for $8.20 written to the Administrative Office of the United States Courts dated March 9, 2012 – presumably the request fee. The check came from Verisqil. According to the ACEDS website, “The crucial service that associations formed by Verisqil provide is a rigorous certification process, including a proctored psychometrically-sound examination that validates the specialized knowledge and skills of the specialists who work in the pertinent fields.” Charles Intriago is the co-founder of ACEDS and is listed on the ACEDS Verisqil page.
  4. The Memorandum of Law in Support of Plaintiffs’ Motion for Recusal or Disqualification.
  5. An article which appeared on ACEDS dated April 19, 2012 and captured on April 29, 2012 entitled “Plaintiffs move to recuse Peck in predictive coding case, now suggesting his financial link to Recommind.”
  6. A detailed timeline entitled “Involvement of ACEDS in Peck Recusal Motion” which was prepared by the person who sent me the documents.

As I have noted previously, a comprehensive assembly of all documents in the case has been prepared by our friend Rob Robinson and is available here. News stories about the case may be found here. Vendors offering technology assisted review may be found here.

As readers will know, I am slow to judge. I determined that I should share these documents because the person who sent them raises questions – and I have some of my own.

First, let me observe that I have been critical of some of Recommind’s actions in the past. I have also expressed some concern about what Judge Peck has said about this case (statements may be found in the Memorandum of Law). Anyone who goes to e-discovery conferences has noted that there is a certain clubby atmosphere between national lecturers and the judges. Though I do not know Judge Peck, I do know Ralph Losey (counsel for the defense) as a friend and colleague and it is impossible for me to imagine Ralph doing anything unethical. But that does not solve the problem of the atmosphere created. And to see Judge Peck and defense counsel on the same panels at multiple conferences talking not about Da Silva Moore, but about predictive coding, which lies at the heart of the case, is disquieting to many. This is why the phrase “appearance of impropriety” is used so often – no impropriety may exist, but perhaps it just doesn’t look right.

I spoke to Charles Intriago on Tuesday about the documents I received. It struck me as odd that ACEDS, a certification body, would aggressively investigate a judge and make a number of calls to vendors inquiring about whether “teaching fees” had been paid to the judge. Several sources have told me that Judge Peck requests reimbursement of travel, hotel and meals (sometimes including his wife) and, frequently, teaching fees of $1500.00.

Epiq Systems confirmed that it paid Judge Peck that amount to speak on a LegalTech panel it sponsored in January. This was stated in the ACEDS article as though it were part of the Plaintiff’s brief, but I do not see it there and think it likely that ACEDS made that call. It is unknown (at least by me) whether other vendors also made payments. I confess I’d like to see Judge Peck’s report on “teaching fees” paid in 2011 and by whom – and would like to know what vendors may have paid “teaching fees” for LegalTech and how much. I understand full well that gossip runs amok in cases like these, but if multiple payments by vendors were made to Judge Peck for his appearances at LegalTech, he would clear the air considerably by being forthright about any payments made to him. I certainly have a feeling that Judge Carter may take an interest in such payments.

Mind you, I am all in favor of judges participating in conferences generally – the situation here is very fact-specific. Canon 4 of the Judicial Code of Conduct specifically blesses such activity. Canon 4(H) also indicates that spousal reimbursement may be appropriate and that compensation and reimbursement of expenses are permitted “if the source of the payments does not give the appearance of influencing the judge in the judge’s duties or otherwise give the appearance of impropriety.” This is where the facts in this case give rise to the possibility that the appearance of impropriety may exist.

Turning now to the other side of the case, I asked Charles why ACEDS was acting as an investigator in this matter, because some folks have suggested that ACEDS is sharing information with the Plaintiffs and vice-versa. The tone of the conversation was not particularly civil – and it takes a lot for me to make even that mild statement. I will attempt to neutrally convey that small portion of the conversation which Charles will allow me to relate. I really wish I could recount the entire conversation but I have to respect the boundaries that Charles set forth.

His major points were these:

  1. ACEDS has no dog in the fight and doesn’t care who wins this case.
  2. ACEDS has an obligation to its members to produce news and analysis, which requires investigation of the facts in the case.
  3. ACEDS provides training and certifications.
  4. ACEDS provides a community for its members.

I take Charles at his word, but am still perplexed that a certification body would want to be so heavily involved in an investigation of a judge in a very controversial case. Having spoken to a number of others, they share my view that the ACEDS reporting has been pro-Plaintiff by any fair reading and wonder why ACEDS seems to take this case so personally. Several of ACEDS affiliate members are temp agencies which represent contract lawyers who do e-discovery review – and their jobs may be threatened by technology-assisted review. Is this a possible motivation?

Another fact of interest: Special Counsel, an e-discovery staffing firm, was highlighted by ACEDS as the first such firm to require ACEDS certification, perhaps buttressing the notion that there may be an interest in slowing the adoption of predictive coding.

Charles appears, according to various Internet sites, to have his fingers in a lot of pies and seems to have business relationships with ACEDS, Verisqil, The Intriago Group, Asset Forfeiture and Recovery Resources, Inc. (originator of the fax transmissions), the International Association for Asset Recovery, Asset Recovery and Risk Associates, Asset Recovery Watch, Inc. and the Association of Certified Financial Crime Specialists. They all appear to share the same street address and suite number. It is interesting that ACEDS, as a certification entity, and Verisqil, which provides the certification process, are really comprised of the same principals. The mission of the Intiago Group, as stated on its LinkedIn page: “The professional team at The Intriago Group create, build and promote certification associations that provide specialized training on legal, regulatory, governmental and technology subjects.” I am not sure what to make of all this, but it is certainly striking.

A colleague said (and I agree) “This case has become a circus – and it is hurting the promise of the new technology.” This is really the point that hits home to me – it is a perfect summary – and a great shame.

Never have I seen a case with such animus. Toxic or not, I hope those who have solid information about this case will step forward. My hope is simply to get this laundry out in the sunshine in a public forum.

What do readers think? Should a certification body be conducting these sorts of investigations?

Do you think ACEDS and the Plaintiffs are working together - and is there proof of that?

Has ACEDS received documents from the Plaintiffs before they were available on systems such as PACER?

Do you have knowledge of teaching fees or honoraria paid to Judge Peck? Do you believe such fees or honoraria create the appearance of impropriety or in any other way run counter to Canon 4 of the Judicial Code of Conduct, which explicitly allows such payments in certain contexts?

Do you share my sense that there is, legitimately, a sense of a cozy atmosphere (however innocent and unintended) between some speakers and judges that might give a party to a lawsuit pause? Do the facts of this case rise to the level of the appearance of impropriety?

I will always (sigh) think of the day that my Inbox caused me to lose most of two days to Da Silva Moore, but I want to conclude by thanking those who spoke to me off-record (and I do understand their reasons). If the facts would all come out (a slim hope of that, I know), the circus could leave town and we could get on with discovering the benefits and limitations of technology-assisted review.

E-mail: snelson@senseient.com Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq

Source: "Shared" via Dominic in Google Reader "Shared" via Dominic in Google Reader | Sharon D. Nelson, Esq.

My Google Profile Friday, 16 July 2010

Check out my new Google profile.

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