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2. 2 Slide Materials  To download a complimentary copy of today’s materials, please follow these instructions: 1.Go to krollontrack.com/events 2.Click on the “ Course Materials ” tab 3.Select today’s presentation, “ Inside Scoop 2012: Ediscovery Trends in the Last Year ” 4.Enter “ December ” as the “User ID and “ webinar121212 ” as the “Password”

3. 3 Michele C.S. Lange, Esq. Director, Thought Leadership & Industry Relations, Kroll Ontrack Nationally-recognized expert in ediscovery, computer forensics and legal technologies Engages in industry relations, conducts legal and market research to drive Kroll Ontrack’s legal technology product and service offerings Assists clients with integrating case strategy, from ESI preservation to litigation tactics Co-authored the ABA book “Electronic Evidence and Discovery: What Every Lawyer Should Know” mlange@krollontrack.com

4. 4 Andrea S. Gibson, Esq. Product Director, Kroll Ontrack Leverages expertise in discovery law, technology and methodologies to build cutting-edge ediscovery software and processes Experienced litigator and legal consultant: practiced law at Eccleston & Wolf (Baltimore) and served on ediscovery teams in toxic tort, antitrust and products liability cases asgibson@krollontrack.com

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6. 6 Pop Culture News 2012

7. 7 In This Issue  2012 Case Law Overview  2012 Year in Review » Top Five Stories: 1.TAR Approved by the Judiciary 2.Social Media in Ediscovery 3.August 2012 Ethics Rules Amendments 4.Cloud Computing 5.The Era of “Big Data” is Here!  Looking Ahead: Ediscovery News in 2013

8. 8 2012 Case Law Overview  In 2012, Kroll Ontrack summarized 70 salient ediscovery opinions— apportioned by topic as follows: Sanctions (32%) for spoliation, production disputes and noncompliance with court orders Procedural Issues (29%) such as search protocols, cooperation, production and privilege Discoverability & Admissibility (16%) of specific types of information, such as corporate e-mail stores and social media data Cost Considerations (14%) such as shifting and taxation of costs Technology-Assisted Review (TAR) (9%), predictive coding, and other advanced search technologies

9. 9 Themes from 2012 Case Law  Trends in notable 2012 ediscovery opinions : » Preservation, spoliation and sanctions still the most common topic, but the total number of cases addressing it decreased significantly compared to 2011 »Cases addressing procedural issues, such as search protocols, cooperation and production saw the greatest increase  Going forward in 2013 … »As litigants embrace emerging technologies, courts will have higher expectations from counsel to develop and explain thoughtful collection, search, and production protocols before considering sanctions

10. 10 Ediscovery News 2012

11. 11 Technology-Assisted Review (TAR)  For the first time ever, TAR Addressed and Approved by the Judiciary in 2012 »“Counsel no longer have to worry about being the first ‘guinea pig’ for judicial acceptance of computer-assisted review … [TAR] can now be considered judicially approved for use in appropriate cases.” – Da Silva Moore v. Publicis Groupe, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012)  Following Da Silva Moore, several other courts approved TAR » Global Aerospace, Inc. V. Landow Aviation & In re Actos (Pioglitazone) Products Liability litigation – Both cases with large document corpuses, detailed search, sampling and quality control protocols » EORHB, Inc. v. HOA Holdings, LLC – a Delaware court of chancery orders sua sponte that parties share same ediscovery provider for TAR » Kleen Products – hearings to evaluate benefits of TAR

12. Understanding TAR 12  Vernacular: Ediscovery community loves this technology, but not sure what to call it yet—TAR? IRT? Predictive Coding? Computer-Assisted Review? Machine Learning?  Eventually, the industry will decide on a standard term, but for now two things are critical: » (1) The technology behind the lingo; and » (2) That you, your firm, your adversary and the court actually know what you mean when you say “technology-assisted review.”  Da Silva Moore strongly emphasized implementing an appropriate process, so knowing the technology and covering your bases is paramount

13. Understanding TAR 13  Key concepts and metrics you must grasp before leveraging TAR: Precision Fraction of relevant documents within retrieved results – a measure of exactness Recall Fraction of retrieved relevant documents within the total relevant documents – a measure of completeness F-Measure Harmonic mean of precision and recall Hot Not All documents

14. Understanding TAR 14  Key concepts and metrics you must grasp before leveraging TAR: Precision Fraction of relevant documents within retrieved results – a measure of exactness Recall Fraction of retrieved relevant documents within the total relevant documents – a measure of completeness F-Measure Harmonic mean of precision and recall Hot Not 1) Perfect Recall; Low precision

15. Understanding TAR 15  Key concepts and metrics you must grasp before leveraging TAR: Precision Fraction of relevant documents within retrieved results – a measure of exactness Recall Fraction of retrieved relevant documents within the total relevant documents – a measure of completeness F-Measure Harmonic mean of precision and recall Hot Not 2) Low Recall; Perfect Precision

16. Understanding TAR 16  Key concepts and metrics you must grasp before leveraging TAR: Precision Fraction of relevant documents within retrieved results – a measure of exactness Recall Fraction of retrieved relevant documents within the total relevant documents – a measure of completeness F-Measure Harmonic mean of precision and recall Hot Not 3) Arguably good recall and precision

17. Understanding TAR 17  The TAR process, generally:   Pay close attention to evolving case law and best practices, both of which are in relative infancy at this point.

18. Social Media 18  2012 cemented social media as staples in everyday communication: »Facebook surpassed 1 billion users »Twitter surpassed 500 million  80% of companies are currently using social media to communicate with potential clients and drive new business.  Many companies now leverage internal social media platforms:  Social media isn’t going away, and it’s no longer feasible to ignore it in the personal or professional realm… Typical websites now offer 4+ links to share on social media.

19. Social Media – Ediscovery Issues 19  Discoverability: Courts settled that social media is discoverable, but not how much is discoverable Mailhoit v. Home Depot U.S.A., Inc. The Federal Rules do not grant a “generalized right to rummage at will through information [a person] has limited from public view” absent a Rule 34 showing of “reasonable particularity” in request for data. E.E.O.C. v. Original Honeybaked Ham Co. of Georgia Inc. Reasoned that social media data was the logical equivalent of an “everything about me” folder with a bevy of relevant information. Private Sections? Narrow Broad

20. Social Media – Ediscovery Issues 20  Obligations to preserve and collect apply to Social Media, but: »Data changes very frequently and stored on third-party servers »Security and privacy setting may block access »Few reliable technologies for social media preservation  Start early and obtain consent before collecting!!!  Contents of these sites are not self-authenticating »Proactively obtain as much evidence as possible –subscriber reports from the platform provider –relevant metadata, such as when and where it was posted  Laws and practices frequently changing, pay close attention to evolving case law and best practices!!!

21. ABA Amends Ethics Rules in August 2012 21  The ABA House of Delegates approved recommendations sponsored by the ABA Commission on Ethics 20/20 »Of special interest to ediscovery practitioners is Recommendation 105A, which amends existing rules as follows:  Rule 1.1 – Comment [8] adds an attorney’s duty to stay informed about changes in practice and relevant litigation technology  Rule 1.6 – Adds section (c), identifying duty to prevent inadvertent disclosure of confidential client information  Rule 4.4 – Adds “electronically stored information” to provision about sending prompt notice when lawyer receives third party information  The connection between ediscovery and current ethics rules is growing stronger with each case issued NEW 8/12

22. Rule 1.1, Cmt. [8] – Maintaining Competence 22 “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology… ” NEW 8/12  Ability to Examine and produce ESI is central to managing ediscovery: Duty requires competence in locating, reviewing, and producing ESI in litigation and regulatory work!!!

23. Rule 1.6 – Confidentiality of Information 23 NEW 8/12  Large data volumes make protecting privilege more difficult, but counsel must familiarize themselves with Fed. R. Evid. 502 and consider entering protective orders, quick peek, and clawback agreements “(c) A lawyer shall make reasonable efforts to prevent the inadvertent disclosure of, or unauthorized access to, information relating to the representation of a client.”

24. Rule 4.4 – Respect for Rights of Third Persons 24 NEW 8/12  Comments explicitly state: “metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.” “(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.”

25. Cloud Computing – What is it? 25 Examples of cloud platforms : These platforms contain ESI potentially relevant to litigation!

26. Why Are We Talking About the Cloud? 26  Simplicity: »Fast deployment »Uptime commitments »Minimal expertise requirements  Cost Savings: »No hardware investment »No refresh cycles »No maintenance or upgrades costs  Possibility of… »Infinite scalability and resources »Collaboration across systems  Flexibility: »Rapid Market adaptation »Platform independence »Ubiquitous access models Potential Benefits of the Cloud:  …. “That ediscovery will live primarily in the cloud isn't a question of whether but when.” -August 2011 Legal Technology News

27. The Cloud’s Dual Impact on Ediscovery 27 1. Information governance (IG) »Storing information in the Cloud (e.g., hosted email archiving) –Raises significant preservation and collection issues 2. Processing and review »Ediscovery processing will almost always be lower cost and more efficient in the Cloud –More elasticity and scale; no upfront hardware investment –If you review documents in an online review tool you already depend on the cloud to facilitate ediscovery –Added benefit of third-party experts and project managers

28. Mitigating Cloud Risks 28 RiskMitigation Tactic Location Keep data within specific data centers or countries Accessibility Understand the process for getting data out of the cloud; ensure confidentiality is protected from other cloud tenants Preservation Clarify service agreements for how litigation holds will be implemented in the cloud Security Ask who is going to have access to the data and what security measures will be provided Integrity Inquire about the company's experience, reputation, financial stability and disaster recovery plans

29. The Era of BIG DATA is Here!!! 29  The total amount of global data in 2012 predicted to reach 2.7 zettabytes.  Source: IDC, “The Digital Universe” (2011)  It is projected that organizations will need to deal with 50 times more information by 2020 than they're managing today.  Source: IDC, “The Digital Universe” (2011)  From a litigation perspective, 1 in every 3 corporations involved in ediscovery averaged more than 2.5 terabytes of data per legal matter in 2011. That’s a 20% increase in the last 3 years.  Source: IDC, “Leveraging Cloud-Based Delivery Capabilities for Do-It-Yourself (DIY) eDiscovery” (February 2012) Wait… how much ? Source: Cisco, The Internet in 2015 is the Dawn of the Zettabyte Era …a Zettabyte is approximately one trillion gigabytes!!!

30. Big Data = Big Headaches for Unprepared Attorneys 30  Many sanction awards in 2012 stemmed from counsel trying to keep pace with the era of “big data.” » Coquina Invs. v. Rothstein, 2012 WL, 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012) - Over 200 defense attorneys tasked with collecting, reviewing and producing ESI constituted “ a case of too many cooks spoiling the broth,” amounting to insufficient production, a finding of gross negligence, and sanctions.  Courts were all over the map regarding appropriate preservation and spoliation standards in “big data.” » Chin v. Port Auth. N.Y. & N.J., 2012 WL 2760776 (2d. Cir. July 10, 2012) – Not negligence per se ; diverged from Zubulake and favored a case-by-case analysis » Voom Holdings LLC v. Echostar Satellite LLC, 2012 WL 265833 (N.Y. A. Div. Jan. 31, 2012) – Applied Zubulake ; failing to implement hold an automatic deletion of e- mail amounted to gross negligence

31. 31 Ediscovery News in 2013?