#2009 EDD Predictions

Fri, 21 Nov 2008 16:12:22 GMT

My predictions may be very obvious — but I expect we will see an even-more escalated Darwin activity: 1. The collapse a significant number of vendors, who fail because of overly-optimistic expectations that they will "revolutionize" the market with their "unique" product that has no competitors. (Whenever a vendor tells me he/she has no competitors I know that company will be gone in a year). Vendors will fail if they do not:* have carefully constructed and realistic business plans* have a solid financial foundation* understand the challenges of the legal industry (particularly fear in Baby Boomer firm leaders)* educate the profession (read: talk in plain English)* isten to their users and offer first-class customer service; and 5) effectively market so they rise above all the white noise.2. While the big 3 (Thomson-R, LexisNexis, & Wolters K) will continue to gobble up companies, I will not be surprised if because of the collapsing financial industry, the feeding frenzy slows down a bit next year.3. Niche vendors will continue to thrive -- especially those who offer stellar customer service, generating fierce loyalty. As Browning Marean sez, "Fasten your seatbelts, we are in for a lot of turbulence in 2009."

My predictions may be very obvious — but I expect we will see an even-more escalated Darwin activity:

1. The collapse a significant number of vendors, who fail because of overly-optimistic expectations that they will "revolutionize" the market with their "unique" product that has no competitors. (Whenever a vendor tells me he/she has no competitors I know that company will be gone in a year).

Vendors will fail if they do not:
* have carefully constructed and realistic business plans
* have a solid financial foundation
* understand the challenges of the legal industry (particularly fear in Baby Boomer firm leaders)
* educate the profession (read: talk in plain English)
* isten to their users and offer first-class customer service; and 5) effectively market so they rise above all the white noise.

2. While the big 3 (Thomson-R, LexisNexis, & Wolters K) will continue to gobble up companies, I will not be surprised if because of the collapsing financial industry, the feeding frenzy slows down a bit next year.

3. Niche vendors will continue to thrive -- especially those who offer stellar customer service, generating fierce loyalty.

As Browning Marean sez, "Fasten your seatbelts, we are in for a lot of turbulence in 2009."

Océ Business Services Introduces Onsite Outsourced Discovery Management Service

jenkins.bradley@gmail.com (Brad Jenkins) — Fri, 21 Nov 2008 12:11:21 GMT

New York, N.Y. (November 20, 2008) – Océ Business Services, Inc., a leader in document process management and electronic discovery, today introduced Océ Onsite Discovery Management, a comprehensive outsourced discovery management service that is located onsite at law firms and corporate legal departments. The discovery management service spans electronic discovery and paper evidence processing as well as litigation technology management.

Océ Onsite Discovery Management allows legal organizations to lower costs, access cutting edge technology, and focus more on their core business and less on operations management. Organizations can also more easily gain electronic discovery expertise and scale the resources they devote to discovery processes as litigation and regulatory demands change.

Arizona Amends Rules of Family Law Procedure to Address Electronic Discovery

david.bowerman@klgates.com (Kirkpatrick & Lockhart Preston Gates Ellis LLP) — Thu, 20 Nov 2008 19:21:39 GMT

Arizona’s Supreme Court has approved amendments to Arizona’s Rules of Family Law Procedure that will address several major e-discovery issues. The amended rules are based on Arizona’s Rules of Civil Procedure and will become effective January 1, 2009. The amendments include changes to the following rules:

Ariz. R. Family Law P. 49      Disclosure
Ariz. R. Family Law P. 51      Discovery
Ariz. R. Family Law P. 52      Subpoena
Ariz. R. Family Law P. 62      Production of Documents and Things and Entry
                                                  Upon Land for Inspection and Other Purposes
Ariz. R. Family Law P. 65      Failure to Make Disclosure or Discovery; Sanctions

To read the order and see the amendments, click here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

ALCoder 4.0

Thu, 20 Nov 2008 18:16:06 GMT

Rosen Technology Resources Inc. released ALCoder 4.0, the latest upgrade of its autocoding software.

Isys Search Systems releases Isys web:9

Thu, 20 Nov 2008 18:10:32 GMT

Isys Web:9 is an EDD search tool to help users find data on intranets, Microsoft Corp. Sharepoint, internet searches and internet programs.

Onsite3 and Clearwell

Thu, 20 Nov 2008 17:49:49 GMT

OnSite3 and Clearwell Systems Inc. have joined forces to support cross-platform searches.

Beach Reading from the SEC

jschneid@quarles.com (Joshua Schneider) — Wed, 19 Nov 2008 21:52:48 GMT

The Enforcement Manual, or "Red Book," of the SEC (that's right: the SEC) was released to the general public this October and it is the perfect read if you're being investigated by the SEC or know someone who will be. It contains simply a wealth of helpful information on what the SEC wants in terms of electronic production. Although there are a number of relevant sections, two of the particularly helpful being sections 3.2.6.2, "Form of Production," and 3.2.6.2.3, "Format for Electronic Production of Documents to the SEC," both of which provide some guidance for those responding to an SEC subpoena. Now, in addition to the two standard responses to SEC subpoenas of (1) sending everything in every possible format, including scans of napkins with humorously-shaped and possibly discoverable stains and (2) sending nothing and hoping no one notices, the subpoenaed have a third option: send materials in precisely the formats that the SEC wants.

For those of you anxious to sink your teeth into the delicious prose of the Security and Exchange Commission, the complete manual is available here. (You will be relieved to know that the most recent SEC offering is without the tacked on romantic subplot that made Additional Form 8-K Disclosure Requirements and Acceleration of Filing Date such a disappointment.)

Sedona Conference releases EDD book

Wed, 19 Nov 2008 21:48:11 GMT

The Sedona Conference Working Group has released Electronic Discovery and Digital Evidence: Cases and Materials, published by Thomson West.

Preserving and Harvesting Non-Traditional ESI

Wed, 19 Nov 2008 18:27:30 GMT

by Conrad Jacoby As has been made explicitly clear in the Federal Rules of Civil Procedure, relevant information is potentially discoverable, regardless of where and how it has been stored. As a consequence, traditional definitions of “document” no longer match real life, since relevant information may be as likely to be stored in a database continue…

In Ongoing Sanctions Dispute, Protective Order Limits Access to and Uses For Production, and Clarifies No Waiver by Production Pursuant to Self-Defense Exception

david.bowerman@klgates.com (Kirkpatrick & Lockhart Preston Gates Ellis LLP) — Wed, 19 Nov 2008 18:23:35 GMT

Qualcomm Inc. v. Broadcomm Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008)

At trial in this case, Broadcomm made an oral motion for sanctions related to Qualcomm’s failure to disclose documents corroborating its participation in the Joint Video Team (“JVT”), a standards body related to video coding specifications. Qualcomm’s claimed lack of participation in the JVT was a core element of its claims for patent infringement against Broadcomm. Judge Brewster referred the discovery aspects of that motion to Magistrate Judge Major and then issued an Order on Remedy for Finding of Waiver based on his determination that Qualcomm’s attorneys had participated in a sequence of discovery misconduct throughout the litigation process. However, because those attorneys had not had an opportunity to be heard before the order was issued impugning their behavior and in order to afford them an opportunity to be heard on the potential imposition of attorney sanctions, the court issued an Order to Show Cause Why Sanctions Should not be Imposed.

Following briefing and hearings on the sanctions issues, the court denied the motion brought by Qualcomm outside counsel seeking an order that the self-defense exception to the attorney-client privilege applied. Shortly thereafter, Qualcomm filed four employee declarations indicating that outside counsel was to blame for the discovery failures in the case. The following week, the court heard oral argument on the Order to Show Cause.

On January 7, 2008, the court granted in part and denied in part Broadcomm’s oral motion for sanctions, and imposed sanctions on Qualcomm and six of its outside attorneys (the “Responding Attorneys”). After the sanctioned attorneys filed objections, Judge Brewster determined that the four declarations previously filed by Qualcomm “introduced accusatory adversity between Qualcomm and its retained counsel regarding the issue of assessing responsibility for the failure of discovery.” Accordingly, he found that “this accusatory adversity changed the factual basis which supported [this] court’s earlier order denying the self-defense exception to Qualcomm’s attorney-client privilege.” Judge Brewster then vacated the order regarding Broadcomm’s oral motion for sanctions and remanded the issues to Magistrate Judge Major for further proceedings.

As part of the Remand Proceedings, Broadcomm and the Responding Attorneys served documents requests on Qualcomm and on each other. Eventually, Broadcomm and the Responding Attorneys filed motions to compel Qualcomm’s production of the requested documents. The Responding Attorneys sought documents related to their contention that Qualcomm affirmatively misled them during the discovery process, that the attorneys made reasonable inquiries of Qualcomm, and that there were no “red flags” in Qualcomm’s representations to them in light of the totality of circumstances. Broadcomm sought to compel responses to similar requests.

Qualcomm objected to most of the requests and sought to limit their scope significantly. Qualcomm also sought a protective order specifying who could view the documents, that the filings in the Remand Proceedings be sealed, and for clarification that any documents produced would be pursuant to the self-defense exception and not a result of any waiver by Qualcomm.

The court rejected Qualcomm’s attempts to limit the requests, especially in light of the Responding Attorneys’ needs to defend themselves against the imposition of sanctions, although it did recognize Qualcomm’s ability to withhold privileged communications with counsel who took over the representation after trial. The court also addressed several of Qualcomm’s specific objections, but sustained only the request to exclude documents pertaining specifically to discovery procedures in other litigation.

However, recognizing the vulnerable position of Qualcomm, the court granted Qualcomm’s request for a protective order, which restricted the persons permitted to view the documents, limited the use of the documents to the Remand Proceedings and the attorneys’ defense of themselves before the State Bar, and clarified that the documents were produced subject to the court’s order and the self-defense exception to attorney-client privilege and not waived.

Regarding how best to carry out discovery, the parties agreed that Qualcomm would provide a list of custodians likely to have documents responsive to each request and that the parties would then meet and confer regarding search terms. Qualcomm also agreed to provide the responsive documents in an electronic, searchable format. The court then scheduled a telephonic hearing for Thursday, December 4th to monitor compliance and discuss deadlines and scheduling.

A full copy of the decision is available here.

Intel Exec Thanked Ballmer for Vista Capable Help

Wed, 19 Nov 2008 18:22:00 GMT

Microsoft is being sued for deceptive marketing practices in U.S. District Court in Seattle over claims that the changes were made to help Intel sell off millions of existing chipsets. Read this story from RedmondMag.com indicating that court documents may contain a "smoking gun" reference to Microsoft CEO Steve Ballmer's participation.

Translation Experts and Legal Protections against Research on Human Subjects in Developing Nations

translate@languagealliance.com (All Language Alliance, Inc.) — Wed, 19 Nov 2008 16:45:35 GMT

We've blogged about pharmaceutical translations in the context of the European Union's fast track approval process for US pharmaceuticals, and about professional translations of foreign regulatory evidence in products liability cases. Professional pharmaceutical and technical translations provided by multilingual translation...We've blogged about pharmaceutical translations in the context of the European Union's fast track approval process for US pharmaceuticals, and about professional translations of foreign regulatory evidence in products liability cases. Professional pharmaceutical and technical translations provided by multilingual translation experts are equally important for the new sector of international law, pertaining to the use of human subjects for pharmaceutical testing and research. Since this practice is heavily regulated in the United States, many companies are turning to developing nations that typically lack such protections. As regulations and protections are being implemented - thus creating a new sector of international law- and as with any law involving various foreign jurisdictions, foreign language translations play an important role.

The foundation of this body of law arises with the post-World War II Nuremberg Trials, where Nazi physicians who engaged in human experimentation were charged with war crimes and crimes against humanity. The result was what is referred to as the Nuremberg Code, which sets the framework for both US federal regulations and international guidelines as applied to human experimentation.

The Nuremberg Trials led to the founding of the World Medical Association and the subsequent adoption of the Declaration of Helsinki, a body of international law that specifically addresses the ethics of research on human subjects. Further, the Council for International Organization of Medical Sciences - in collaboration with the World Health Organization - publishes international human subjects ethical guidelines based on the principles of both Nuremberg and Helsinki.

In terms of the United Nations, the International Covenant on Civil and Political Rights (ICCPR) addresses the subject. According to the ICCPR, "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

See Wollensack, Amy F. 2007: "Closing the Constant Garden: The Regulation and Responsibility of U.S. Pharmaceutical Companies Doing Research on Human Subjects in Developing Nations". Washington University Global Studies Law Review. Vol 6:747.

CT Summation Inc. partners with Ivize

Wed, 19 Nov 2008 16:40:51 GMT

CT Summation Inc. partners with Ivize. Ivize will host CT Summation's CaseVantage as a software-as-a-service.

Informative Graphics Corp. Updates Brava

Wed, 19 Nov 2008 16:01:13 GMT

Informative Graphics Corp. has updated its Brava document review software. It provides Visual Rights persistent file security, for secure content delivery.

Proginet Corp. releases Slingshot Vault

Wed, 19 Nov 2008 15:49:22 GMT

Proginet Corp. has launched Slingshot Vault, a program that securely sends large documents through Microsoft Outlook.

Hot Neuron updates Clustify

Wed, 19 Nov 2008 15:43:08 GMT

Hot Neuron has released Clustify 2.0. It automatically categorizes documents and tags them with keywords.

EarlyCase supports more e-mail formats

Wed, 19 Nov 2008 15:07:32 GMT

EarlyCase announces that its e-Discovery program can search Lotus Notes and IBM Domino email files.

InterLegis Inc. upgrades Discovery360

Wed, 19 Nov 2008 14:56:52 GMT

InterLegis Inc. has added native file redaction to Discovery 360. InterLegis says files can now be viewed in their original format without converting to TIFF images.

Mimosa Systems Inc. Adds Module to Nearpoint

Wed, 19 Nov 2008 14:48:38 GMT

Mimosa Systems Inc. has added a Tiered Storage Option for its Nearpoint e-mail archiving system. It clusters archived e-mail and saves archives on disk.

Kazeon Systems Inc. Releases KazForensics

Wed, 19 Nov 2008 14:39:15 GMT

Kazeon Systems Inc. has launched KazForensics, a forensic e-discovery program that verifies search results.

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