Clearwell Gets Its First Case Mention

Patrick Zeller Since EnCase® has been used in hundreds of thousands of cases, and mentioned by name in over 70 reported decisions, we know a little something about the pride an organization feels when its software gets highlighted in a judicial opinion. Now getting mentioned in a brief filed in a case, as opposed to a reported opinion, won’t usually set hearts aquiver in quite the same way, but something tells me that Clearwell’s mention in the government’s brief asking for a stay of Judge Scheindlin’s groundbreaking Order in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency has nevertheless created some nervous excitement for them. First, Immigration and Customs Enforcement (ICE) highlighted that using Clearwell for FOIA purposes had already cost it over $300,000, and that “[c]ontinued use of the software will require an additional expenditure of funds in an unknown amount, perhaps in the hundreds of thousands, if not millions, of dollars.” Well, it may cost a large, growing, and ultimately unknown amount, but on the positive side at least “ICE was required to suspend many of the agency’s security protocols in order to allow Clearwell to run properly.” Er, wait, uh . . . never mind ICE, what about the other defendants? The FBI noted that it would be able to use Clearwell to process 79 spreadsheets, but that “Clearwell will be unavailable for future productions because it has reached maximum capacity . . .”

UPDATE (March 29, 2011): Last week we blogged about Clearwell getting mentioned in the government brief asking for a stay of Judge Scheindlin’s Order in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency. Supporting the government’s brief was the Declaration of the Director of the Freedom of Information Act Office at ICE, available here. It contains a number of bold statements such as: “[The ICE Office of the Chief Information Officer] decided that given the tremendous technical difficulties and huge expenditure of manpower . . . associated with operating the Clearwell software . . . the agency should abandon the Clearwell application and discontinue its use.” (Declaration at ¶ 14)

Thinking about the situation more broadly, it seems that Judge Scheindlin has an uncanny knack for issuing landmark opinions in e-discovery cases, but each of them highlights situations that others can avoid by using commercially available software that is suited for the task at hand – to collect and preserve potentially relevant data, thereby avoiding the problems of the defendants in the Zubulake cases, to issue and track legal holds and conduct online surveys of custodians, thereby avoiding the problems in Pension Committee, and to properly preserve metadata, thereby mitigating the problems in NDLON v. ICE. (As Judge Scheindlin noted, “[b]y now it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.”) As we pointed out earlier, EnCase® eDiscovery is an in-house e-discovery system that can handle all types of matters, without disrupting an organization’s business or impacting its security protocols. Instead of capacity limitations, it has no constraints on usage. Instead of unknown future charges, it delivers cost certainty.

Patrick Zeller is vice president of e-discovery and deputy general counsel at Guidance Software.