Falcon CEO Speaks on Privacy at ARMA’s Annual Conference

Falcon’s CEO, Don McLaughlin, spoke on October 29th at ARMA’s annual meeting in Las Vegas on a panel entitled “Privacy Concerns in the Management of Today’s Information.” The panel session was standing room only. Mr. McLaughlin addressed a host of legal and technology issues related to privacy and data management. In particular, Mr. McLaughlin focused on issues related to  the cost and benefits of cloud computing, the implications of social media use by corporations, and strategies for minimizing the risk of data breaches and violations of state and federal privacy laws.

Falcon’s Partner kCura Recognized in National Survey for Best Predictive Coding Solution and Best Online Review Platform

In a national survey, Falcon’s long-time partner, kCura, recently received high honors in the New York Law Journal Reader Rankings Survey. Based on 8,000 votes submitted by litigation professionals from around the country, kCura’s Relativity software was voted the Best Predictive Coding Solution and the Best Online Review Platform. Recognized as a “Leader” in Gartner’s 2013 E-Discovery Magic Quadrant, kCura are the developers of the e-discovery software Relativity, a web-based platform for the processing, review, analysis, and production of electronic data. Relativity has more than 80,000 active users worldwide from organizations including the U.S. Department of Justice and 95 of the top 100 law firms in the United States.

Falcon’s Relativity InsideOut™ solution gives corporate legal departments a dedicated Relativity environment (including unlimited use of Relativity’s processing software), a solution that is currently saving Falcon’s clients hundreds of thousands of dollars a year on the high processing, hosting and production imaging fees typically charged by other consulting and litigation support firms. Contact us today to learn more.

Falcon Founder Selected to Speak at eDiscovery Conference for State Court Judges

Falcon’s founder and CEO, Don McLaughlin, has been asked to serve on an educational panel during the 2nd Annual Educational Summit for State Court Judges, hosted by the Institute for the Advancement of the American Legal System at the University of Denver. The Summit’s educational focus is “Unlocking E-Discovery” and takes place September 19-20 at the University of Denver. The Summit includes participation by approximately 45 state court judges from 31 different states. Mr. McLaughlin will join a select group of nationally renowned e-discovery experts during the Summit, and will present on a panel entitled “Practical Aspects of Using Third Parties: From Vendors to Liaisons to Special Masters.”

Falcon Discovery to Present at Corporate eDiscovery Forum Meeting in Minneapolis on August 8, 2013

DENVER, CO–(Marketwired – July 23, 2013) – Falcon Discovery, the industry leader for in-house e-discovery managed services, today announced that it is co-sponsoring and presenting at the Corporate eDiscovery Forum (“CEDF”) in Minneapolis on August 8, 2013.

The CEDF meeting on August 8 will include a full-day of panels and roundtables, including sessions set aside exclusively for in-house members to dialogue and benchmark on e-discovery management issues such as: technology selection, process management, and best practice tips for reducing data volumes in-house. The meeting will also include a judicial panel that will address a variety of topics, including Minnesota’s new rules concerning e-discovery.

“As a former in-house lawyer and CEDF member, I appreciated the opportunity to network and benchmark with other in-house lawyers and e-discovery professionals during the CEDF meetings,” noted Falcon’s Founder and President, Don McLaughlin, “and I am delighted that Falcon is sponsoring CEDF’s meeting in Minneapolis.” During the August 8 meeting, Mr. McLaughlin will participate in a mock pre-trial hearing concerning technology-assisted review. The Honorable Judge Andrew Peck will preside over the mock hearing, which will include a heated debate about the merits of technology-assisted review and under what circumstances it can be used to advance the discovery process.

“As an in-house managed services provider for several CEDF member organizations, we are looking forward to contributing our insights and expertise during the Minneapolis meeting,” said Mr. McLaughlin, “and we encourage others with corporate e-discovery responsibilities to register and participate in CEDF.”

Since 2006, CEDF has been the preferred place for Fortune 1000 corporations to meet and collaborate on the complexities of electronic discovery and information management. CEDF currently includes over 300 corporations, and more than 550 individual members include the AGC of Litigation, in-house e-Discovery Attorneys, IT e-Discovery Liaison and IT Security, Litigation Support Managers, Paralegals and Records Managers and Information Governance Directors.

In-house corporate personnel with ediscovery, compliance or corporate governance responsibilities can register for CEDF at CEDF Membership Registration, upon which individuals will be able to register for the Minneapolis Forum meeting scheduled for August 8, 2013. There is no fee to join the CEDF organization and no fee to participate in the Minneapolis Corporate eDiscovery Forum.

About Falcon Discovery

Falcon Discovery is transforming the way corporate legal departments and law firms manage discovery and compliance in the digital age. InsideOut, Falcon’s visionary legal and technology managed services program helps corporations unbundle legal services to gain transparency, reduce costs, and exercise more control over the discovery process from in-house. Falcon’s lawyers, process managers and technologists become an extension of the in-house legal team and create a unique framework that aligns people, processes and technology to optimize the discovery process across matters. Visit www.falcondiscovery.com for more information.

Highlights from the 2013 Annual ACEDS Conference

As we have done every year since the inception of this industry-leading conference, Falcon’s team of ACEDS-certified attorneys and project managers attended the 2013 ACEDS Conference to share ideas and insights with other industry leaders and e-discovery certification experts.

For those who were unable to attend the conference this year, we have compiled our notes and summarized these highlights from the conference.

Learning from E-Discovery Fiascos  

The case of Coquina Investments v. TD Bank illustrates what can occur when a defendant and its outside counsel fail to produce critical data. Serious mistakes arose from poor planning, failed processes and communication breakdowns between attorneys, counsel and vendors, which resulted in sanctions against TD Bank and Greenberg Traurig for blatant e-discovery violations. This session emphasized the need for delegating roles and maintaining clear lines of communication between in-house and outside counsel, vendors and IT.

Avoiding E-Discovery Malpractice

Concerns related to malpractice by e-discovery practitioners appear to be on the rise. This session covered protecting yourself and your client from this risk by preparing for malpractice claims and ensuring you have adequate coverage. In addition, the session covered best practices for service providers when implementing new review technologies, including advice on performing conflicts check and clarifying crucial roles.

Emerging Social Media Use

The use of social media for business purposes creates legal risks for users. Companies need to understand how to manage these risks against its utility for driving business success. Issues arise from the use of social media include preservation and collections issues, as well as tying its use into current information governance and compliance programs through enacting social media policies.

Information Governance and Development of a Defensible Deletion Policy and Procedure

With the quantity of data created yearly, it is a must for a company to create a deletion policy and apply that policy uniformly. A company without a uniform policy is incurring unnecessary expense of storage and the risk of significant e-discovery costs when litigation occurs.

Project Management and Process is Essential

Due to the size of data volumes in litigation and the number of people involved in responding to a large e-discovery request, applying sound project management principles is essential. Each project needs a plan and process for executing that plan to have an efficient and high quality e-discovery response.

Big Data in the Cloud

With Google and Microsoft offering cloud office applications and storage, many companies are turning away from managing their own servers. These companies offer end to end office products and services which are available anywhere with an internet connection. These cloud services reduce the need for full time employees and hardware. However, a company must be careful to review the service agreements and determine the risks involved in responding to litigation. Thought must be given to document retention policies that would specifically apply to corporate data stored in the cloud.

Cost Transparency in E-Discovery is Critical

Our federal and state judiciary and the federal rules regarding e-discovery demand proportionality among litigants. Take control of the process and demand a transparent cost estimate from your outside consultants and outside counsel to ensure that what you present to the court regarding discovery is accurate, reasonable, defensible and proportionate at the outset of the litigation.

Be Proactive, Get it Right Before Litigation Hits

Companies with proactive and defensible strategies regarding information governance and litigation readiness save money and avoid costly litigation.  In-house counsel must work in collaboration with IT and compliance to ensure defensible, cost-effective strategies for e-discovery and information governance.

Get to Know Your E-Discovery Consultant BEFORE Litigation  

Do your homework and ask good questions about the team you want to hire. E-discovery vendors look and sound alike and assure you they can support you with full EDRM support. Be sure you are engaging knowledgeable and experienced litigation attorneys and technologists who have practiced in the trenches and in fact have experience and expertise across the EDRM.

Small to Medium Sized Businesses Increasingly Impacted by E-Discovery

E-discovery continues to expand its reach to state courts, as more and more states are adopting e-discovery rules, procedures. What this means for small and medium size businesses that do not have significant litigation exposure at the Federal level, is that they too will increasingly need to deal with the costs and challenges associated with e-discovery and complying with the rules that govern it; e-discovery touches those beyond the large multi-national corporations.

Cross-Border E-Discovery Remains a Tricky Proposition

For all the advances in e-discovery technology, obtaining ESI from international locales remains difficult and fraught with risk due to data and privacy protection regimes in foreign jurisdictions. It is an exercise that should only be undertaken with expert advice and local counsel from the location in which you need to collect ESI.

In-House Legal Benefits from E-Discovery Certifications

The ACEDS certification and e-discovery certifications in general, are a good value proposition for in-house legal teams looking to increase internal buy-in and awareness of e-discovery and its needs within their organizations. Anecdotally, many attendees at the 2013 Conference hailed from organizations who have growing e-discovery needs but are behind the ball in terms of adopting processes and technology to efficiently and effectively meet their discovery obligations. Attending ACEDS and becoming certified was a way for the professionals at these corporations to not only know more about what they are dealing with, but also prove to the decision makers in their company that they do know what they are talking about and that their requests really do have merit and are based on real business needs; a certification, whether from ACEDS or reputable organization, provides legitimacy on the subject of complying with discovery obligations in the digital age.

Fortune 200 Company Renews 5-Year Managed Services Contract

Falcon to manage entire in-house e-discovery operation, to include in-house discovery technology and delivery of unbundled legal
support services 

DENVER, April 30, 2013 — Falcon Discovery, a legal services provider specializing in managing e-discovery in-house, today announced that a Fortune 200 company has renewed a five-year managed services contract with Falcon to continue implementing Falcon’s InsideOut™ services solution. In particular, Falcon will manage the client’s entire in-house discovery operation and deliver unbundled legal support services across matters. This new five-year managed services contract renews an existing five-year contract between Falcon and the company.

As part of the new agreement, Falcon’s team of legal technologists and discovery attorneys will serve as an extension of the corporate legal department both on-site and near-site to the client’s facilities. Falcon’s technology team will manage all aspects of the client’s in-house discovery technology, which includes the client’s multi-terabyte Clearwell license and kCura’s Relativity platform. Falcon is one of only a few Certified Symantec Managed Service Providers in the world, and its team holds multiple certifications related to kCura’s Relativity platform. Falcon’s technology team currently manages tens of terabytes of case data for this client alone.

In addition, Falcon’s team of discovery attorneys and project managers will work at the direction of in-house and outside counsel to perform the day-to-day discovery tasks required across all types of legal matters. As part of these unbundled legal services, Falcon’s attorney and technology teams will continue to assist counsel in completing the following types of tasks:

  • Discovery planning & project management
  • Preservation & collection interviews
  • Search & early case analysis
  • Processing & hosting
  • Technology assisted review & production management
  • Pre-trial support

“This renewed five-year agreement is rare in the industry and stands as a testament to the substantial value that we deliver day-in and day-out, fueled by the dedication, skill, knowledge and collaborative nature of our team,” said Falcon’s founder and CEO, Don McLaughlin. “I am also thrilled to see increasing adoption of our InsideOut™ services solution, as more companies look at better ways to both reduce legal costs and improve how discovery is managed.”

Falcon’s InsideOut™ solution gives companies immediate control over e-discovery, without additional head count or incurring a large capital expenditure. With InsideOut™, Falcon serves as an extension of the legal department by delivering integrated in-house enterprise e-discovery technology, rigorous, proven processes, and specialized legal and technology teams to manage both cases and technology across the entire litigation life cycle.

Over the past five years, Falcon’s team has managed the technology and delivered legal support services for a wide variety of legal matters including:

  • High-stakes internal investigations
  • All types of employment matters
  • Complex commercial and IP litigation
  • Multi-district securities class actions and high-profile government investigations
  • M&A reviews and HSR filings for multi-billion dollar transactions

Once in place, the InsideOut™ service team can often respond to internal investigations or urgent discovery requests in a matter of hours—not days or weeks. Both in-house and outside counsel understand cases far more quickly, and Falcon’s repeatable in-house processes, legal acumen and expertise using advanced technology make every step more efficient and cost-effective.

“The cost savings InsideOut™ delivers across multiple matters contributes directly to the bottom line of the legal department budget, ” said Cody Greenwaldt, Managing Director of Legal Operations, “even when compared to companies that are already using preferred outsourcing providers for e-discovery technology or managed review services.” For example, Falcon’s InsideOut™ solution yields cost savings of up to 85% below the industry average for discovery review and production costs when compared to the discovery costs summarized by the RAND Corporation’s Institute for Civil Justice in a 2012 report, “Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery.”

Highlights from the 2013 Annual Conference of the Association of Certified E-Discovery Specialists (ACEDS)

As we have done every year since the inception of this industry-leading conference, Falcon’s team of ACEDS-certified attorneys and project managers attended the 2013 ACEDS Conference to share ideas and insights with other industry leaders and e-discovery certification experts. For those who were unable to attend the conference this year, we have compiled our notes and summarized these highlights from the conference.

Learning from E-Discovery Fiascos  

The case of Coquina Investments v. TD Bank illustrates what can occur when a defendant and its outside counsel fail to produce critical data. Serious mistakes arose from poor planning, failed processes and communication breakdowns between attorneys, counsel and vendors, which resulted in sanctions against TD Bank and Greenberg Traurig for blatant e-discovery violations. This session emphasized the need for delegating roles and maintaining clear lines of communication between in-house and outside counsel, vendors and IT.

Avoiding E-Discovery Malpractice

Concerns related to malpractice by e-discovery practitioners appear to be on the rise. This session covered protecting yourself and your client from this risk by preparing for malpractice claims and ensuring you have adequate coverage. In addition, the session covered best practices for service providers when implementing new review technologies, including advice on performing conflicts check and clarifying crucial roles.

Emerging Social Media Use

The use of social media for business purposes creates legal risks for users. Companies need to understand how to manage these risks against its utility for driving business success. Issues arise from the use of social media include preservation and collections issues, as well as tying its use into current information governance and compliance programs through enacting social media policies.

Information Governance and Development of a Defensible Deletion Policy and Procedure

With the quantity of data created yearly, it is a must for a company to create a deletion policy and apply that policy uniformly. A company without a uniform policy is incurring unnecessary expense of storage and the risk of significant e-discovery costs when litigation occurs.

Project Management and Process is Essential

Due to the size of data volumes in litigation and the number of people involved in responding to a large e-discovery request, applying sound project management principles is essential. Each project needs a plan and process for executing that plan to have an efficient and high quality e-discovery response.

Big Data in the Cloud

With Google and Microsoft offering cloud office applications and storage, many companies are turning away from managing their own servers. These companies offer end to end office products and services which are available anywhere with an internet connection. These cloud services reduce the need for full time employees and hardware. However, a company must be careful to review the service agreements and determine the risks involved in responding to litigation. Thought must be given to document retention policies that would specifically apply to corporate data stored in the cloud.

Cost Transparency in E-Discovery is Critical

Our federal and state judiciary and the federal rules regarding e-discovery demand proportionality among litigants. Take control of the process and demand a transparent cost estimate from your outside consultants and outside counsel to ensure that what you present to the court regarding discovery is accurate, reasonable, defensible and proportionate at the outset of the litigation.

Be Proactive, Get it Right Before Litigation Hits

Companies with proactive and defensible strategies regarding information governance and litigation readiness save money and avoid costly litigation.  In-house counsel must work in collaboration with IT and compliance to ensure defensible, cost-effective strategies for e-discovery and information governance.

Get to Know Your E-Discovery Consultant BEFORE Litigation  

Do your homework and ask good questions about the team you want to hire. E-discovery vendors look and sound alike and assure you they can support you with full EDRM support. Be sure you are engaging knowledgeable and experienced litigation attorneys and technologists who have practiced in the trenches and in fact have experience and expertise across the EDRM.

Small to Medium Sized Businesses Increasingly Impacted by E-Discovery

E-discovery continues to expand its reach to state courts, as more and more states are adopting e-discovery rules, procedures. What this means for small and medium size businesses that do not have significant litigation exposure at the Federal level, is that they too will increasingly need to deal with the costs and challenges associated with e-discovery and complying with the rules that govern it; e-discovery touches those beyond the large multi-national corporations.

Cross-Border E-Discovery Remains a Tricky Proposition

For all the advances in e-discovery technology, obtaining ESI from international locales remains difficult and fraught with risk due to data and privacy protection regimes in foreign jurisdictions. It is an exercise that should only be undertaken with expert advice and local counsel from the location in which you need to collect ESI.

In-House Legal Benefits from E-Discovery Certifications

The ACEDS certification and e-discovery certifications in general, are a good value proposition for in-house legal teams looking to increase internal buy-in and awareness of e-discovery and its needs within their organizations. Anecdotally, many attendees at the 2013 Conference hailed from organizations who have growing e-discovery needs but are behind the ball in terms of adopting processes and technology to efficiently and effectively meet their discovery obligations. Attending ACEDS and becoming certified was a way for the professionals at these corporations to not only know more about what they are dealing with, but also prove to the decision makers in their company that they do know what they are talking about and that their requests really do have merit and are based on real business needs; a certification, whether from ACEDS or reputable organization, provides legitimacy on the subject of complying with discovery obligations in the digital age.

Falcon’s Brandon Hollinder Testifies to the Quality of the ACEDS Conference

Falcon Discovery was proud to be a sponsor of the 2013 ACEDS Conference in Hollywood, FL. Here’s what Senior Discovery Consultant, Brandon Hollinder had to say about what makes this such a great and useful event in the e-discovery world. More >>

DB Discovery Article by Falcon’s Michael Spencer

Requests to produce entire databases are often thought to yield a higher level of usable information. However, knowing how to make targeted requests related to specific data stored can produce much more specific and relevant. Learn key principles that can keep a hunt for a needle in a stack of needles from turning into a search for a needle in a haystack.
Read DB Discovery Article Here

 

CEIC 2012 – Key Takeaways

As we have done for the past four years, Falcon’s team recently attended the Corporate Enterprise Investigations Conference (“CEIC”) in Las Vegas. CEIC is one of the largest international gatherings of legal, IT, corporate, law enforcement and government attendees that focus on the latest developments in the digital investigations and e-discovery fields.

This year the conference seemed to draw a far higher number of international participants than in past years, with a marked increase in the number of participants from the Asia Pacific region.

Here are some key takeaways from CEIC 2012:

Judicial Perspectives on Current Electronic Discovery Case Law

Judge Andrew J. Peck, United States District Court, Southern District of New York,
Judge John M. Facciola, United States District Court, The District of Columbia,
Judge Herbert B. Dixon, Superior Court of DC,
Ken Withers, The Sedona Conference
 

Cloud Computing

Judges on the panel underscored:

  • The risks associated with moving corporate information into the cloud, particularly where the client/customer does not have a good handle on where their data is being stored and how it can be readily accessed for legal discovery.
  • The dangers associated with corporate IT groups unilaterally moving ahead with cloud-based solutions without consulting legal about discovery and security implications.
  • That the anticipated cost savings of moving data into the cloud may be outweighed by the additional costs associated with the cloud provider enhancing security and ensuring compliance with discovery obligations.

Social Media

The admissibility of data retrieved from social media sources can be challenging, particularly since it is often difficult to establish through direct evidence who posted the information contained on the social media site.

  • Circumstantial evidence is often the only way to establish ownership, but direct evidence could be relied upon if the social media content is preserved and collected similar to the way in which other data sources (e.g., laptops or desktops) are collected.

Predictive Coding

There was consensus among that panel that the use of advanced technology to perform document review will grow, and the hope is that it will be used more frequently in an effort to reduce the costs of privilege review.  Additionally, the Judges commented on the following:

  • The use of advanced technology for review does not implicate Rule 702 concerning experts, but instead the key factors in demonstrating the efficacy of the technology will be (i) explaining how the technology works and (ii) what has been done to test the accuracy of the technology.
  • It is imperative to address the possibility of using advanced technology early-on in the meet and confer stage.
  • The Department of Justice is implementing new guidelines for e-discovery, and these encourage an early meet and confer to address issues like the use of advanced technology. This is an important development because the high costs of discovery are forcing more defendants to request court-appointed counsel, which costs the taxpayers more money.

Government E-Discovery: Implementing Appropriate Processes and Solutions for Public Sector Legal Needs

Jamie Brown (CFTC), U.S. Commodity Futures Trading Commission,
David Shonka, FTC

The panelists highlighted a number of important points, including:

  • E-discovery is a challenge for government agencies much the same way it is for the parties to whom the government issues requests. For example, government agencies often have to respond to congressional inquiries that require extensive discovery.
  • As such, while government requests are often broad and far reaching at first (in order to preserve the government’s right to request additional information throughout an investigation), government agencies understand the challenges and dangers of ‘scorched earth’ discovery and will often negotiate the scope of discovery when asked.
  • It is surprising how often outside counsel does not meet and confer with government agencies, and instead outside counsel appear to be telling clients that they must engage in a massive effort to deliver over everything that the government is requesting.

International E-Discovery: Data Protection, Privacy, & Cross-Border Issues

M. James Daley, Daley & Fey LLP,
Dominic Jaar, KPMG Canada,
Quentin Archer, Hogan Lovells International LLP,
Chris Dale, eDisclosure Information Project
 

This was an engaging and lively discussion among the panel.  Much of the discussion focused on the E.U. Data Protection Directive (95/46), and included a number of important points on the following topics:

“Processing” and “Personal Data”

  • E.U. member States should implement laws to restrict all manner of “processing” of “personal data” and prohibits the transfer of personal data outside the E.U.
  • Exception: the country to which it is transferred provides “adequate protection” of personal data (E.U. Directive Article 25).
  • Consensus among the panel is that remotely accessing data in the E.U. from countries outside the E.U. may qualify as “processing” of data.

U.S. – E.U. “Safe Harbor” Framework

  • The U.S. – E.U. “Safe Harbor” framework is only available for companies that are subject to the jurisdiction of the Federal Trade Commission or the Department of Transportation.
  • This framework is really intended for business to business transfer.
  • Under the “Safe Harbor” framework data can be transferred to the U.S. but when it is transferred, it needs to be treated with same safeguards in the U.S. as it is in the E.U. (including the right of the data subject to be informed of the transfer and the ability to withdraw consent).
  • Transmission of data outside the E.U. may require permission from the local Data Protection Agency in the applicable country.

New Technologies and New Problems for E-Discovery

Renee Meisel, Dell,
Andy Drake, Nationwide Insurance,
Kia Hakimi, Best Buy
 

This panel focused heavily on new technologies and problems that impact in-house legal and IT teams.  The panelists addressed a wide range of topics, including:

Cloud Computing and Privacy

  • It is critical to get a commitment from the cloud provider to identify where the hosted data will be stored and how it can be accessed and collected for legal discovery.
  • Remote access to ESI from the U.S. may be considered “processing” of data under the E.U. Data Protection Directive.
  • As such, consider leaving ESI in the host country and performing review in that country in order to avoid the complications of transferring data outside the country.

In-House Discovery Management

  • Nearly all panelists described an effort to move more discovery functions in-house, principally to gain better control of corporate information and to reduce outside legal costs.
  • One challenge is that it is difficult to hire FTEs to carry out these functions, which underscores the need to enlist providers to deliver these services.
    • Important to strike a balance between internal employees performing these functions and enlisting outside providers who can augment in-house staffing capabilities.
    • Searching for the ‘cheapest’ vendor or technology solution can often have negative consequences.

Social Media and Instant Messaging

  • Sharp increase in the use of social media for business purposes, which requires that companies create a formal policy and framework for how social media is to be used.
  • It is taking some time to develop an effective workflow to identify and capture social media for litigation and regulatory requests.
  • It is challenging to capture social media because the content is dynamically created and updated, and collections are only a snapshot in time.
    • Collecting social media content created by employees often turns on whether the content was created for business purposes.
    • Instant messaging content is also challenging to capture, and some companies simply turn off the logging of instant messaging as part of its records management policy.
    • For such companies, the preservation of instant messaging for custodians on legal hold may require activating the logging or collection of the messages but this will depend on the nature and factual circumstances of the legal matter.

Bring Your Own Device (BYOD)

  • While there is a push for employees to use their own devices at work, this presents unique security and privacy challenges.

The anticipated cost savings of encouraging employees to use their own device (rather than a corporate device) are often outweighed by the additional risk and costs associated with protecting and accessing information stored on the employee’s device when necessary.