Litigation Support Tip of the Night

April 2, 2020

You can improve the performance of Relativity analytics operations by increasing the amount of RAM available for Java.  The Java heap is the amount of memory allocated to the Java Virtual Machine (JVM).  The JVM is a program that executes other programs written in Java. 

Relativity recommends that servers which are used for indexing and structured analytics allocate about 50% of available RAM to Java.  This setting should be increased to 75% if only structured analytics is being performed.  Only a third of total RAM should be assigned to the Java heap if a server is used only for indexing.  

A server will need an amount of RAM in bytes equal to 6000 times the number of documents involved in an index build.  So, a training set of a million documents for an index build will require 6 GB of RAM.   The same equation applies for calculating the Java heap size needed for a structured analytics set. 

March 31, 2020

The use of Zoom has skyrocketed in recent days because of the closure of businesses in response to the COVID-19 pandemic.   Take heed of a FBI warning about 'zoom bombing'.  The FBI's Boston office issued a bulletin that there have been multiple instances of Zoom hijacking.  An uninvited person will enter the video conference for the purpose of harassing the invited host and his or her guests. 

The Bureau recommends that a Zoom host use the application's waiting room feature, which allows the host to admit guests one by one.  The video camera of each participant can be reviewed before it goes 'live' in the main meeting room.  Enable this in the online settings under Personal . . . Settings . . . Meeting tab.  

Turn on the Waiting room setting. 

Also click on your photo icon in the top right and check for updates in the drop down menu.  Zoom updated its software in January 2020 to prevent random scanning for meetings, and required passwords by default. 

March 31, 2020

The COVID-19 pandemic has seen a huge increase demand for cloud services.  Microsoft posted a report on Saturday, which shows that demand for Azure cloud services has increased by 775% in areas effected by orders requiring social distancing.   Usage of Windows virtual desktops has tripled.   According to Microsoft, "we have not had any significant service disruptions."

In this post, Microsoft tacitly acknowledges that Xbox Live may adversely impact Azure services.   So, it may be best to try to get work done after the kids have gone to bed. 

Microsoft is apparently leaning on internet service providers to, "reduce bandwidth from video sources" during the workday.  So apparently Microsoft is leaning on ISPs to cut off Hulu and Netflix to discourage slacking off in this work-from-era, and help eliminate network lag on remote business networks.  

Keep in mind this period from March 2020 to ???? when conducting electronic discovery in the future and remember to account for the increase in cloud service usage. 

March 30, 2020

Here's another tip from Bryan A. Garner's The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts.  

Take copious notes while trying to come up with imaginative approaches to conveying your argument. 

In this third tip, Garner gives examples of attorneys who began briefs in particularly creative ways. 

1. With a simile - an appellant who awaits a decision on his appeal in an asylum case is like the cosmonauts who rocketed up to the Mir space stations as Soviet citizens, but came down as citizens of Russia.  His home country is a different place than it was when the case began.  

2. With an erudite metaphor - a Court is said to have conducted a Renaissance by rediscovering ancient texts and using them to justify a bold new view of real property law.

3. With a play in which the characters lampoon the impact of a decision construing an antitrust law as preventing predatory pricing, without establishing a coherent test for determining when such pricing is taking place. 

Garner cautions that only very good writers can get away with employing such techniques.  When trying to generate ideas about how best to make a point, try to think of good illustrations, analogies, or diagrams.  If something works particularly well, use it!

It's common to get frustrated in trying to find the right approach, but sooner or later a breakthrough will come.  

March 29, 2020

Here's another tip from Bryan A. Garner's The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts.  

In his second tip, Garner recommends writing a brief in stages.  He references the 'Flower Paradigm' - advocated by Betty S. Flowers in her article, Madman, Architect, Carpenter, Judge: Rules and the Writing Process.  

1. The madman - take notes on possible approaches to a problem.

2. The architect - makes connections between the madman's idea and generates a linear outline. 

3. The carpenter - builds the draft.  Garner recommends that he write rapidly, leaving holes if necessary. 

4. The judge - a critic with a sharp eye who doesn't create anything - don't think about him until the end of the process.  The judge will perform quality control on the draft, looking to improve optimal work choice and so forth. 

March 28, 2020

Today, the D.C. Circuit court issued a decision, United States ex rel. Barko, No. 19-7064, 2020 U.S. App. LEXIS 9615 (D.D.C. Mar. 27, 2020), reserving in part and affirming in part a decision of the district court to bill costs under 28 U.S.C. § 1920.   

The defendant in this case, Kellogg, Brown & Root, Inc. reviewed 2.4 million pages in the Introspect electronic discovery platform.  171,000 documents were converted to tiff images and produced to Barko.  Summary judgment was granted to KBR.   It sought $33,000 for Introspect licensing fees; $10,000 for uploading the files to the platform; $15,000 for processing; $7,000 for deposition costs; and $5,000 for copying and printing.  The district court denied a motion to reconsider the clerk's decision to tax the full bill.

The D.C. Circuit rejected KBR's position that the 2008 amendment of § 1920 allows for the recovery of both copying costs, and costs incurred in the process of making the copies - the incurred costs supposedly including hosting and processing costs.   The Court noted that the Supreme Court has traditionally interpreted the statues in a "a modest way", and that § 1920 only "authorizes taxation of costs for the digital equivalent of a law-firm associate photocopying documents to be produced to opposing counsel."  Id. at *9-10.  KBR was only able to recover for the conversion of electronic files to the tiff format for production - a cost of only $362.41.  "These tasks resemble the final stage of 'doc review' in the pre-digital age: photocopying the stack of responsive and privilege-screened documents to hand over to opposing counsel. Such costs were taxable then, and the e-discovery analogs of such costs are taxable now."  Id. at *10.   "[I]dentifying stacks of potentially relevant materials, culling those materials for documents containing specific keywords, screening those culled documents for potential privilege issues, Bates-stamping each screened document, and mailing discovery materials to opposing counsel" are not taxable, "whether performed by law-firm associate or algorithm."  Id. at *11. 

The D.C. Circuit did allow the taxation of $4,600 for binders, tab, and folders for exhibits.  

March 26, 2020

You can use the below vba code, posted here, to sort data on an Excel worksheet by rows instead of columns.

As currently written, this macro will sort from row 2 to the end.  To clear, in this example, what happens is it sorts the entries in each row from 2 to 4, so the data in B2 through D2 is in alpha order from left to right; then from B3 through D3 from left to right; and so on. 

We begin with:

. . . and get:

Sub sortrows()

Dim i As Long
Dim lr As Long

lr = Range("A" & Rows.Count).End(xlUp).Row
For i = 2 To lr
    Range("B" & i, "D" & i).Sort Key1:=Range("B" & i), _
                               Order1:=xlAscending, _
                               Header:=xlNo, _
                          OrderCustom:=1, _
                            MatchCase:=False, _
                          Orientation:=xlLeftToRight, _
Next i

End Sub


March 26, 2020

Sometimes when running a complex formula in Excel for a lot of data, you'll get an error message indicating that Excel ran of resources. 

If this happens, note that you can improve the performance of Excel and possibly successfully run the formula for your full data set by increasing the number of threads that Excel is using. 

Computers use schedulers to assign resources to complete tasks.  The smallest sets of instructions that the scheduler can manage is a thread, but a process - the instance of a program - can use multiple threads. 

In order to confirm that you're getting as much juice out of Excel as your computer can give, increase the thread settings.  Go to File . . . Options . . . Advanced . . . and scroll down to the Formulas section.  Here you can set a specific number of threads or simply select the radial button that uses all available processors.

March 25, 2020

Don't miss that Excel's EXACT function is an easy way to tell if the data in two cells matches. 

It's case sensitive but will not detect differences in formatting.   A TRUE result is given if the cells match, a FALSE result if not. 

It's more useful to use in conjunction with another formula.  VLOOKUP is not case sensitive, but you can nest EXACT in a LOOKUP formula to do a case sensitive search.

March 24, 2020

It's generally known that email is not the most secure way to transfer data.   You're better off sending data in an encrypted zip file via FTP, then sending the same files as attachments to an email.  Why is this the case?

- Email was not designed to be secure.  The internet protocol for email transmission, Simple Mail Transfer Protocol (SMTP), doesn't include any provisions for security - emails are sent in plain text.  SMTP allows emails to be intercepted and changed by third parties. 

- Emails sent between different networks will typically involve routers operated by different owners.  

- Most email clients will store messages as plain text to enable searching through emails, and also in the case of web based providers like Gmail to facilitate advertising. 

Microsoft Exchange uses Transport Layer Security (TLS) to encrypt emails sent between internal servers.  Exchange enables a certificate for inbound and outbound connections.  However, as noted in Microsoft's documentation for Exchange, "This default configuration allows Exchange to provide opportunistic TLS on all inbound and outbound SMTP connections. Exchange attempts to encrypt the SMTP session with an external messaging server, but if the external server doesn't support TLS encryption, the session is unencrypted."  Emails sent with Microsoft exchange will be encrypted on the server hosting the messages, and they will be transmitted in an encrypted tunnel.  

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Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

The views expressed in this blog are those of the owner and do not reflect the views or opinions of the owner’s employer.


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