Organizing Those Old Boxes in the Attic: E-Discovery and the JFK Documents

If you have cleaned out an attic, you’ve probably run across a box of forgotten treasures. I remember some years ago when my mom sold the house I grew up in, she found a copy of the very first short story I wrote in the fourth grade, which was a finalist in my county’s young authors contest, and some other school papers written in my child’s scrawl.

Other times, that trove of forgotten treasures is so overwhelming, the thought of beginning to sift through everything seems impossible.  Even though you know there are valuable things there, it’s easier to shut the door to the attic and tell yourself you’ll do it another time.

Now imagine that those boxes in the attic contain information about one of the biggest events of the past century and have been locked away for 50 years. That’s what researchers faced this past month when the National Archives released nearly 30,000 documents related to the JFK Assassination.

You don’t have to be a historian to understand the excitement this brings – the questions surrounding the assassination of John F. Kennedy have continued across each generation since November 22, 1963. What did the CIA and FBI know about Lee Harvey Oswald? Why was he in Mexico City weeks before the shooting, and what were his connections to Russia and Cuba? What do statements, classified until now, from people like Jackie Kennedy and mafia bosses reveal? The problem is, most of the files are documents and photos imaged into single PDF files which had to be gone through individually using only the table of metadata provided by the National Archives.

This is where Ian Campbell, CEO of iCONECT (an ACEDS affiliate) saved the day. As he said in a recent interview, “I figured, we have a technology that provides multi-party access to confidential information every day. Why not make this easier for everyone?” iCONECT imported the PDF files, OCR’d them and built a search index where the data could be searched using a keyword, date, document-type, agency, or to/from fielded data and viewed (or listened to in the case of audio files) within the platform. If only someone would come to your attic and do this!

It is also important to note the speed at which iCONECT loaded, cleaned, and indexed the documents (including audio and video), and that they made it freely available to the general public. They also solved scaling and training issues that have challenged our community in a weekend, and are using the feedback to improve their product.

Other e-discovery companies (such as ACEDS affiliate Logikcull) are also making the JFK archives freely available using their software solutions as well.

Whether you are interested in JFK or not, the technical aspects of data management, collection, and production regarding the archive will be of interest to anyone working in the world of e-discovery. That’s why the ACEDS Educational Series is hosting the pre-recorded webinar, 5 Things We Learned by Hosting the JFK Documents, featuring Ian Campbell, on Friday December 15th, at 1pm EST. This webcast was originally presented on E-Discovery Day and is back by popular demand. Request your FREE access to the files prior to Friday’s webinar here. This is something you won’t want to miss.

Worst Nightmare: Court Uses 502 to Compel a Sneak Peek of Privileged Docs

Court of Federal Claims Judge, Margaret Sweeney, who presides over Government litigation regarding oversight of financial institutions, has issued another opinion on attorney client privilege, this time distinguishing Federal Rule of Evidence 502(d). In the most recent status report in the case, Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385(Fed. Cl. Oct. 23, 2017), the defendant produced an additional 3500 documents in response to an earlier order by the court, but in so doing, produced 38 documents that were privileged, then after a review of those, then produced another 22 additional documents. The plaintiff asked to use the quick peek procedure under Rule 502(d), to which the defendant disagreed.

Judge Sweeney, clearly frustrated by lack of cooperation, fashioned a remedy to move the case forward on jurisdictional discovery as a way to bring the long running case to a merits determination.

Judge Sweeney required the defendant, among other things, to:

  • Provide plaintiffs with the opportunity to review the approximately 1500 documents at issue—which are currently being withheld by defendant as privileged pursuant to the deliberative process and bank examination privileges—at a time and place to be determined by defendant.  In so doing, defendant shall not be deemed to have waived any privileges as to these documents.

Judge Sweeney also rejected Sedona’s comment disarming 502’s use as a weapon:

  • [FRE] 502(d) does not authorize a court to require parties to engage in ‘quick peek’ … productions and should not be used directly or indirectly to do so. … Rule 502 was designed to protect producing parties, not to be used as a weapon impeding a producing parties’ right to protect privileged material. Compelled disclosure of privileged information, even with a right to later claw back the information, forces a producing party to ring a bell that cannot be un-rung.

This case may be distinguished due to the comingling of confidentiality into the privilege designation and FRE 502’s focus on privilege protection, the resources of the court anticipating an in-camera review and the Judge’s lack of patience with the producing party.

K&L Gates discusses the case, and provides a direct link to the opinion here.

An All Day, Coast to Coast Celebration: ACEDS E-Discovery Day Recap

It seemed like almost everyone who is involved in the world of e-discovery was celebrating on December 1st. The third annual E-Discovery Day was bigger than ever this year – according to fellow E-Discovery Day sponsor and ACEDS affiliate Exterro, “12 sponsoring organizations hosted 13 separate live events, with over 370 attendees, in 7 States plus the District of Columbia. More than 2000 virtual participants listened to 14 hours of news, analysis, practical tips, and advice presented by 39 e-discovery experts in 15 webcasts.”

And ACEDS was right there doing our part. ACEDS Executive Director, Mary Mack, participated on webinars as a speaker, moderator, or panelist from dawn till dusk, closing out the day with Top 5 E-Discovery Process Improvements Legal Needs to Make (But haven’t made yet…) – the most well attended event according webinar co-sponsor Exterro. This roundtable discussion featured William Hamilton, Director, UF Law; Hon. John Facciola (Ret.), US Magistrate Judge, D.C.; and Mary Mack, these experts, who are not only e-discovery teachers but have also navigated complex e-discovery projects, weighed in on what 5 e-discovery process improvements legal teams need to make to start seeing real results.

When asked what some of the biggest obstacles legal teams are facing when it comes to process improvements, two main themes arose: the lack of focus on understanding e-discovery, and because of this, the inability to match team members’ skills with specific tasks. As Judge Facciola said, “most [obstacles] come from attorneys not knowing how delegate the handling of a matter. They either need to truly understand it or give the jobs to someone who does. And at the same time, there are too many young attorneys not getting guidance from their superiors.”

William Hamilton supported this by saying, “law firms have a peculiar culture, similar to corporate settings, where there’s a lack of structure around e-discovery. Even within the same law firm, you’ll have attorneys with different levels of expertise regarding e-discovery.”

In another ACEDS sponsored webinar, 5 Critical Cyber Security Updates for Firms and Corporations in 2018, a similar theme of understanding and taking the steps towards competency, only this time on the cyber security side of things. Roy Zur, Intelligence Expert and CEO of Cybint (a fellow BARBRI company), explored the upcoming security trends for 2018 and what companies should do to prepare for new threats and intrusions. Roy Zur covered all the different types of threats and attacks in one of the clearest ways I’ve ever heard, next he went into the Dark Web – what it is, how it’s used – and then prevention, detection, and best practices for minimizing risk. It’s more important than ever for law firms to protect themselves. “Mainly it was financial markets and government and big retailers” Mr. Zur said of targets of cyber-attacks, “but now there are increased attacks on law firms, because a firm is a hub for a lot of confidential information, serving many companies.”

There were other events around the country with ACEDS chapters and affiliates as well. The ACEDS Philadelphia Chapter put together the largest gathering of e-discovery professionals in Philadelphia with ILTA, ARMA Liberty Bell Chapter, and Women in eDiscovery Philadelphia Chapter. Exterro sponsored the event, which focused on the topic of “The good, the bad and the ugly of ISO 27050-3 – Code of practice for electronic discovery.”

The Twin Cities ACEDS chapter and Mary Mack hosted a panel discussion regarding the appropriate disposition of client data: “The Case is Done but the Data’s Still Everywhere. What’s a Client to Do?” For many clients this can be the biggest headache, so this webinar looked at considerations when looking at the security of data once that data gets to law firms and providers; what measures should be taken to protect data held by those organizations, and how to vet those measures; and, how should the client ensure appropriate disposition of data by their law firms and vendors at the end of a matter.

And finally, Mary was at it again, this time with LTPI Chairman and President, Eric P. Mandel, and three of the Discovery Data Governance Model co-authors, Quintin Gregor, Kevin Clark and Seth Eichenholtz, to discuss explore the state of the industry, and to examine LTPI’s DDG project, as well as the ACEDS / LTPI relationship.

Other ACEDS chapters had gatherings around the country as well: The New England ACEDS chapter kicked things off with a breakfast roundtable discussion, while our friends in Florida were celebrating E-Discovery Day with the Jacksonville and South Florida chapters both had educational and networking events. There was also a New York City networking event sponsored by LTPI, ACEDS, WIE, and Exterro. There was even an ACEDS hosted E-Discovery Day Twitter chat (click here for highlights).

It’s easy to see why E-Discovery Day has become the year-end event for the industry, and we’re already looking forward to next year’s celebration!