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Surveying and Sampling During eDiscovery Project Planning Series, Part 4

The investigative options you need to undertake to test your project assumptions will depend on the specifics of your project, especially on its scale.  Larger or more complex projects will require more – and more ambitious – investigative efforts.  Surveying and sampling are particularly useful and important in projects that feature a large number of potential custodians or other sources. Surveying in this context, like targeted interviews, is part and parcel of what would normally be your full, pre-collection custodian interview process. In the land of eDiscovery, “sampling” is used to refer to both judgmental and statistical sampling.  In this early project planning phase, both kinds of sampling can be useful. Learn more about the specific types of these methods and when each is the most beneficial.

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ICYMI: Monthly News Round-Up for June 2017

A monthly round-up of industry news stories, useful publications, and notable cases of which you should be aware from the preceding month Welcome to “In Case You Missed It,” XDD’s monthly news round-up.  In these posts, we gather together interesting articles, new publications, noteworthy cases, and XDD materials from the preceding month.  This post gathers…

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Investigating Your eDiscovery Project Assumptions Series, Part 3

Once you have collaborated with knowledgeable individuals to brainstorm hypothetical materials and potential sources (and prioritize them), you are ready to begin investigating the facts on the ground to bridge the gap from your imagination to actual reality.  A variety of investigative options are available for accomplishing this, including: targeted interviewing; data mapping; surveying; and, sampling.  Which one (or more than one) will be most useful to you will depend on your circumstances – in particular, your expected number and types of sources.

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Social Media Summary – Gone Viral Series, Part 8

This multi-part series on how to overcome the technical and legal challenges raised by the involvement of social media sources and data in electronic discovery ends with a summary and set of key takeaways. This includes covering social media sources of ESI, the acquisition, authentication, spoliation, reliability of evidence and the ethical concerns therein.

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Initial eDiscovery Project Scoping Steps Series, Part 2

Each new project is going to be fairly opaque to you at the outset.  You will know the general legal subject matter, the essential event(s) giving rise to the issue, and any individually named defendants within the organization.  Beyond that, however, anything and everything (or nothing) might be relevant. Starting with what you know about the type of matter, the underlying facts, and the key players (typically based on a complaint or preservation notice), you and your collaborators must extrapolate what types of relevant materials are likely to exist within the organization and where (or in whose custody) they are likely to be.  This should include consideration of both the information and materials you will want to see and use and the information and materials you anticipate the opposing party will request. Once you have finished your brainstorming exercise and have a list of potentially-extant relevant materials, likely places to look for them, and distinctive characteristics you might use to identify them, your next step is to prioritize these potential materials, sources, and custodians to guide your subsequent activities and allocation of resources.  Read more to learn the general flow of inquiry and the criteria on which to base prioritization.

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Ethics and Reliability in Social Media – Gone Viral Series, Part 7

In addition to the obvious need to not to intentionally spoliate or advise spoliation, the rise in the use of social media as evidence has developed ethics and reliability concerns for attorneys. Consequently, this rise in importance has led to additional questions that state bars have begun to address. Concerns are raised in the reliability of social media data gathered, as the Internet has seen a massive surge in deliberately fake content.  Some of it is intended only to entertain or advertise or get attention, but some of it is intended to sow confusion and misinformation.

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Clichés, Chaos, and eDiscovery Project Planning Series, Part 1

eDiscovery is undeniably challenging.  Data volumes continue to multiply, data types continue to diversify, and data custodians continue to modify their tools and practices.  Couple this daunting set of variables with an ever-expanding set of eDiscovery tools and services available to be leveraged, add time-pressure and an adversarial process, and you have a perfect recipe for chaos, uncertainty, and small (but important) things getting missed. The reliable way to reduce the risk of such errors is to take the time for proper planning before rushing headlong to action.  To be sure, planning an eDiscovery project is an iterative process that overlaps and intersects with other early project activities, but investing the time and effort required for effective planning, from the beginning (and throughout those early phases), will produce downstream benefits including saved time, saved money, reduced risk, and increased defensibility. 

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Spoliation of Social Media Evidence – Gone Viral Series, Part 6

An August 2016 review by X1 uncovered more than 9,500 cases from the preceding 12 months in which social media evidence played a significant role – growth of more than 50% over the prior year. The rise in the presence of social media in the courts has led to preservation and spoliation concerns. Social media evidence is more frequently being treated as a standard source–if relevant, it must be preserved and produced and not altered, deleted, or hidden. It is clear from the six cases covered in this article that, while parties and their attorneys may be struggling with social media, courts are very comfortable treating it like any other source of evidence: if relevant, it needs to be preserved and produced; and, under no circumstances should it be intentionally altered, deleted, or hidden.

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ICYMI: Monthly News Round-Up for May 2017

A monthly round-up of industry news stories, useful publications, and notable cases of which you should be aware from the preceding month Welcome to “In Case You Missed It,” XDD’s monthly news round-up.  In these posts, we gather together interesting articles, new publications, noteworthy cases, and XDD materials from the preceding month.  This post gathers…

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Social Media Evidence Authentication in the Courts – Gone Viral Series, Part 5

When looking at the authentication of social media evidence in the courts, we can focus on cases from Maryland and Texas. These were two of the first states to address these issues at the appellate level, and each staked out a different position that has since been followed by other states. The Maryland Rule embodies the fear of “voodoo information,” requiring a better demonstration of authenticity before the evidence can reach the jury, while the Texas Rule entrusts the disputed fact conclusions to the jury. The two approaches taken reflect the tension we reviewed in the previous part, between permissive rules and fearful judges.

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Custodian Interview Tools and Logistics – Conducting Effective Custodian Interviews, Part 3

In planning how to format a script and execute custodian interviews, determining the optimal approach for a particular project requires consideration of the specifics, including: how many potential custodians there are, where they all are, how much time is available, how much money is available, etc. All approaches are one of three types. The first is conversational, where one attorney conducts all of the interviews personally, makes notes as they go, and manually compiles the results for matters of small-to-moderate size. The second is formal, where formats for the script and answer recordation for more complex matters include pre-formatted text documents, spreadsheets, and PDF forms. The last is technology-assisted, for the largest, most-distributed, or most-urgent matters. This survey-style approach can be accomplished using paper forms, electronic forms, or web-based questionnaires.

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Authentication and Admissibility of Social Media Evidence – Gone Viral Series, Part 4

In order for any of the materials you have preserved and collected to be usable at trial, they will have to be admitted as evidence. When it comes to successfully admitting social media as evidence, the materials must be both authentic and admissible. The admissibility of the evidence looks at its relevance, possibility of prejudice, and status of hearsay. Likewise, a witness with knowledge providing authenticating testimony and considering distinctive characteristics of evidence are examples of ways to establish authenticity.

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