The Practitioners Role in eDiscovery 2.0

Man vs. Machine or People + Technology?

The Importance of Choosing the Right People in eDiscovery 2.0

Recently, US District Court Judge Andrew Carter upheld the now infamous February opinion by Judge Andrew J. Peck in Da Silva Moore v. Publicis Groupe^[1]. This paves the way for increasing utilization of advanced technologies to augment or replace traditional models of linear review. As a result, law firms and corporations no longer need to fear being penalized for using alternative non-linear technologies.

Despite this affirmative ruling, early adopters still need to ensure that when cutting edge technology is applied, it is well-managed by practitioners with the skills necessary to effectively utilize said technology. The intersection of man and machine heightens the need for trusted advisors in the legal technology and staffing space, and calls for a method of evaluating the skill-set of attorneys who are employing increasingly sophisticated technology.

Da Silva & Other cases… What do they mean?

There has been so much activity in legal periodicals and the eDiscovery blogosphere that it’s easy to lose sight of the relevance of the Da Silva decision. Judge Peck did not order the use or acceptance of Predictive Coding, rather he stated that the technology should be considered as a method to curtail discovery costs. He went on to determine which of two proposed protocols (both employing Predictive Coding) was acceptable. In the original opinion, Judge Peck stated:

Computer-assisted review …should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer needs to worry about being “first” or “guinea pig” for judicial acceptance of computer-assisted-review.

The recent order in Global Aerospace Inc., et al, v. Landow Aviation^[2] goes a step further and affirmatively directs an unwilling plaintiff to accept a production derived via predictive analytics to curtail discovery costs, overruling an assertion that said technologies were a “radical departure from the standard practice of Human Review”. In his ruling, Virginia Circuit Court Judge James H. Chamblin noted that predictive coding tools were not being used in lieu of having human beings make selections, but rather:

Predictive coding tools require human input for a computer program to “predict” document relevance. Additionally, the proposed approach includes an additional human review step prior to production.

There has not yet been a ruling where predictive coding has been proscribed despite opposition from one side, but that circumstance is likewise under judicial consideration. In looking at the cases above, it is clear that there is a willingness of the bench to accept Technology Assisted Review (TAR). The key factor being the word “assisted”. Practitioners must take an active role in the implementation of these tools and use them in conjunction with fact-driven case development to reap the rewards offered by predictive coding or any of the litany of other tools. Judicial approval lies in sound processes and the intersection of man and machine, not merely in which widget is selected.

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International Data Protection and Discovery, Part 2

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Global Privacy Differences and Coming Changes to Cross-Border Discovery

Hudson Legal’s continued interview with Kenneth Rashbaum, experienced litigator and often-published author on the topic of international data privacy laws.

Hudson Legal: It seems that other countries value privacy much more than the United States does. Why do you think that is?

Kenneth Rashbaum: There are cultural, historical, and legal reasons that explain why privacy is much more closely held and ingrained into litigation disclosures worldwide:

• Cultural: Privacy has long been considered a fundamental right in Europe and most of the rest of the world, but in the United States it’s more of a legislative benefit. In many countries their fundamental right to privacy is stated in their constitutions, which is the case in countries like Belgium, Brazil, Chile, and Argentina. In the States, we have privacy law segmented by industry: HIPAA for Healthcare, Gramm-Leach-Bliley for Finance and FERPA for Education, but no overarching legislation to protect privacy.

• Historical: In countries that experienced authoritarian regimes, where information was previously used as a tool to locate dissidents, the pendulum swung back the other way once released from these authoritarian regimes. Some of the strictest privacy laws in the world are in countries such as Germany, France, Spain, and Italy, to name a few.

• Legal: In civil law countries (all of the EU except the UK, plus Mexico, South America countries and most of Asia) the notion of discovery is entirely different from here in the US. Discovery, particularly of personal data, is far more circumscribed.
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International Data Protection and eDiscovery

Exploring Impending Changes in Global Privacy Laws and the Implications for Multinational Corporations

Global businesses have complicated operational considerations. From technology management and legal implications to human resources conduct and accounting procedures, cultural differences, laws and regulations directly impact the way they conduct themselves in the global marketplace. At Hudson Legal, we experience this regularly in the form of an ever-increasing need to advise and execute on the stipulations of cross-border discovery. To take a deep-dive into this intriguing intersection of law and international business, we recently sat down with Kenneth Rashbaum, an experienced litigator and often-published author on the topic of international data privacy laws.

Hudson Legal (HL): Today, you wanted to discuss two recent developments stateside and abroad that are expected to significantly impact international data protection and discovery?

Kenneth Rashbaum (KR): Yes, those developments include:

1. The American Bar Association (ABA) House of Delegates recently passed Resolution 103 urging US courts to respect foreign laws on data protection and privacy
2. The proposed revisions to the European Union Privacy Directives, which, if accepted, should be passed into law  within the next two years

HL: You were chair of the drafting team for ABA Resolution 103, can you explain the intent and potential impact of the resolution?

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Remote Project Management

Best Practices and Guidelines for Successfully Managing Projects Remotely

As a project manager, it’s my job to ensure projects are executed on-time and on-budget in the most efficient and accurate way possible. This calls for a delicate balance of people, technology and processes. Every project is different with its own unique set of circumstances and requirements. What works flawlessly for one client might not be appropriate or applicable for another… yet, remote (or virtual) project management is becoming an increasingly more viable option in the digital age. Being away from the team isn’t always easy, but it’s highly effective when done right.

When I was a child, I abhorred being away from my family. In fact, while I was in kindergarten, my many feigned illnesses enabling me to stay home became so obvious that the principal came to visit me there to investigate. What resulted was a concerted effort to assure me that even though my family wasn’t there, that things were ok and that they weren’t far away. My first-grade (pun intended) sister, was allowed to visit my classroom on occasion, and my parents stressed that they were only a phone call away. This played out in later years through equipping me with family pictures and other mementos during summer camps. Such things gave me the feeling that they were there without actually being there. Those memories and that concept resurfaced recently when I was asked a question about managing a project remotely.

The question is simply: When the circumstances are right, how do you manage a project remotely? My answer is, you make the project team feel like you are there when you aren’t actually there. This is evidently a popular thing to do nowadays, exemplified by the emergence of such things as virtual offices, Skype, Instant Messaging and all forms communication that allow remote employment to be a desirable and cost-effective option for many businesses.

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E-Discovery Special Report: The Rising Tide of Nonlinear Review

Disruptive Technology, Savvy Clients and Cost Pressures are Changing the E-Discovery Game

Article Excerpt from The National Law Journal
Contributed by Cat Casey and Alejandra Perez, Hudson Legal

Leveraging technological advancements to minimize the cost and maximize the accuracy of human analysis required for large data reviews is the next step in the world of electronic discovery. Rapidly expanding data volumes and skyrocketing costs are driving this evolution. It is increasingly in counsel’s interest to make use of technology to find the most cost-efficient and accurate ways to review large volumes of data.

Service providers, counsel and cost-conscious clients are looking to nonlinear methods for relief from this burgeoning volume of data and the costs associated with it. When used effectively, emerging technologies can create efficiencies in prereview categorization of data, expand the scope of content analysis and accelerate the speed and accuracy of review. Rather than a one-size-fits-all approach to e-discovery, there is now a spectrum of alternative technologies and processes that can be tailored to the case at hand.

The exponential growth of electronically stored information (ESI) during the past decade has forced organizations to reevaluate how e-discovery is handled. Rather than focusing their efforts on the merits of a case, companies and their counsel have been forced to spend exorbitant amounts of money and time to preserve, collect, identify and produce the proverbial needle in a haystack from first megabytes, terabytes and now petabytes of data.

ESI has been doubling or tripling every 18 to 24 months and 85 percent resides in business domains. International Data Corp. estimated that 1.8 zettabytes (1.8 trillion gigabytes), contained within 500 quadrillion files, would be created and replicated in 2011. This means, as of today, there are more bits of ESI than there are stars in the known universe. See John Gantz & David Reinsel, “Extracting Value from Chaos” (2011). http://idcdocserv.com/1142. This tidal wave of data and the cost associated with it is driving innovations in nonlinear review.

Continue Reading… To learn more about cost pressures, linear and nonlinear review methodologies and technology, and early case assessment advantages. Download Full Article >

A Game Theorist Perspective on E-Discovery

Can the Pain of E-Discovery Shift Practitioners from the Prisoner’s Dilemma to a Nash Equilibrium?

The application of Game Theory to the practice of law is not new. Before e-Discovery took center stage the classic adversarial stance taken by many litigators is often likened to the Prisoner’s Dilemma; where the incentives are aligned to encourage parties to defect in their own self interest in lieu of cooperating for a better mutual reward. The 1979 modification to the Federal Rules of Civil Procedure and the influx of Electronically Stored Information (ESI) have only served to increase the likelihood of non-cooperation in the discovery space. As the scale of data has steadily increased and the cost associated with discovery has grown exponentially, parties have adopted an increasingly black and white approach to the entire discovery process.

Using the lens of Game Theory, this piece addresses the factors that entrenched the adversarial approach and created a Litigator’s (prisoner) Dilemma, the factors driving change and what it might take to get lawyers to pursue a mutually self-interested solution and reach a Pareto Optimal Nash Equilibrium.

Game Theory Defined

At its core, Game Theory is simply “the study of mathematical models of conflict and cooperation between intelligent rational decision-makers.”^[1] It was developed in the 1940’s and applied extensively to economics in the 1950’s and later to group dynamics, psychology and an array of other spaces that involve interactive decision making between self-interested or rational beings.

The limited or imperfect information present in the 26 (f) meet and confer conferences as well as the high risk/reward potential in large scale litigation make the current e-Discovery process a prime real-world case study for game theorists. In the context of e-Discovery, the self interested rational beings are Plaintiffs, Defendants and parties in government investigations and the stakes are primarily monetary, reputational and time-related.

The Prisoner’s Dilemma in a Legal Context

The game that is most often used in discussing the conflict present in litigation is the Prisoner’s Dilemma; It is one of the most well known and understandable iterations of game theory.

The Scenario

Two prisoners are held for trial in separate cells with no means of communication. The prosecutor offers each of them a deal. He also disclosed to each that the deal was made to the other. The deal he offered is this:

• If you will confess that the two of you committed the crime and the other guy denies it, we will let you go free and send him up for five years.
• If you both cooperate and deny the crime, we have enough circumstantial evidence to put both of you away for three years.
• If both of you confess to the crime, then you’ll both get two year sentences.^[2]

This game may begin with cooperation or with competition; but the more times the game is played the greater the likelihood of defection. And an initially cooperative player ceases to be cooperative if they are burned once.

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E-Discovery Judges in Charlotte: Practitioner Advice, Technology, and Specializations

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What Can Practitioners Do to Handle E-Discovery Matters Effectively in Court?

Take a cooperative approach

From the point of view of the bench and ESI practitioners alike there is a need to cooperatively approach discovery. There are rules on the books currently to mitigate the burden of e-discovery. From Judge Grimm’s perspective the Claw back is a great tool when used properly. It’s a cost effective way to handle discovery permitted by 26(v)(b)5 that allows the production of all data without searching by a party and without violating attorney-client privilege. These tools (while helpful) are not always a viable or logical solution.

Be informed, reasonable and prepared to educate the Judge

Judge Hodges noted the dirty little secret is that motions to compel are the bane of our [Judges] existence. She “gets the willies” when she sees ESI and “we are the least fit to make the decisions on the details of key words, custodians, systems”. Practitioners who have spent weeks, months and even years analyzing cases know the key factors. The Discovery request should be the result of a reasonable discussion. Judge Peck noted, “If you do not think that the request is appropriate, provide an alternative solution and be prepared to produce what you believe is reasonable”.

Look to your courts recommendations

Judge Grimm’s District court adopted and posted a suggested protocol for discovery of ESI and many courts have a standing order once the 2006 FRCP rules were going to adopt the ESI rules. They have a liaison committee to work with the standing committee on rules and forms to get input from practicing attorneys for real-time insight. None of this may apply or some of it may apply, but as of today 97.6% of attorneys in (his) court are completely oblivious it exists. It is absolutely correct and totally useless. There is also a pilot project in the 7th circuit, and an 8 factor requirement in Losey’s District when it comes to meet and confer and e-discovery matters.  In the Judge’s opinion, we are starting to see more consensus on how to approach these things.

Have a truly cooperative and substantive 26(f) conference

Peck commented that “too many are more like drive bys”. A good rule 26(f) provides the first opportunities to get a handle on e-discovery, to be open with your adversary about what you can and can’t do, and work it out at beginning of discovery. This should be an iterative process, with parties continually conferring as the case goes on. He went on to say that Judges are not sitting in chambers saying “I can’t wait for a sanction opportunity”. They are more work than they are worth.

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E-Discovery Judges in Charlotte: Post-CLE Summary

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Last week I had the pleasure of attending a CLE in Charlotte, NC, featuring three of the preeminent Judges in the e-discovery space as well as a deep bench of ESI practitioners in the field. Judges Facciola, Grimm and Peck spoke on the most pressing issues facing practitioners today. Using the context of a mock case (and its attendant meet and confer and Rule 16 conferences) the panel analyzed best and worst practices, and looked to the future of litigation and government investigation in a post-ESI world.

Panel Judges:
Hon. John M Facciola (US Magistrate Judge, DC)
Hon. Paul W. Grimm (Chief US Magistrate Judge, US District court, MD)
Hon. Andrew J. Peck (US Magistrate Judge, SDNY)

Also Featuring:
Hon. Shiva Hodges (Magistrate, NC)
Hon. David Kessler (Magistrate, WDNC)
Craig D. Cannon (Bank of America Discovery Counsel)
Ralph Losey (Partner Jackson Lewis)
… and other e-discovery specialists

Why do we, as Legal Practitioners, Need to Care About e-Discovery?

At the outset of the program, the moderator posed the question, “Why should we be concerned about this subject” to the Big Three, and they offered key insights into the view from the bench. For Grimm, the concern broke down to three major legal fictions that society and the legal community are currently laboring under: 1) that computers are secure, know they are not and know how easy they are to access, manipulate, 2) the fiction of privacy, via digital media we have greatly sacrificed privacy and 3) the myth that we can control and manage our data, we know intellectually that we cannot do this. New technologies have rapidly been adopted integrated into the way we do business.

Grimm explained that lawyers need to recognize that the disputes legal practitioners are now called upon to deal with are operating with this information and the resolution of these disputes will evolve with this technology. He went on to say that many courts are looking to reign in preservations via key word search limitation or application of cost effective search. Ultimately, the solution cannot be a 17th century concept of technology applied to current technologies.

For Facciola, the question of proportionality in this brave new world of mega volumes of ESI took ultimate significance. The effort required for e-discovery is not proportional to the scale of cases; this is interrupting the docket and taking disproportionate amount the courts of time. Increasingly mid-sized companies and the middle class are being driven out of federal courts by the growing costs to handle ESI.

Peck focused on embracing technology, saying that unless we’re prepared to abandon pretrial discovery, we must be versed in e-discovery; there is no paper anymore. Even in slip and fall matters, the defense counsel is using Facebook as a tool to disprove the claims of plaintiffs. In every sort of case need to know enough to be able to effectively represent your client. Otherwise, we will not live up to Federal Rules of Civil Procedure (FRCP) (the just, speedy, and inexpensive determination of every action and proceeding), ensuring that e-discovery is not used as blackmail to make a defendant settle the case.

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Social Media and E-Discovery: Impact and Influence

Contributed by Steven W. Green, Hudson Legal

 

 

• As corporate social content increases, so will the challenges that corporate litigants face in producing and reviewing data stored with social media providers.
• The key social media challenge in electronic discovery is to collect and prepare social media content for review, production, and presentation in a way that preserves its original context and significance.
• Corporations must prepare and strategize for the discovery implications of this emerging social media world.

Introduction

Corporate demand for assistance in dealing with the high costs and complexities of discovery in the digital age has given rise to an entire e-discovery industry. As business information shifted from paper documents and correspondence to stored data and electronic mail, the volume of corporations’ potential evidence rapidly increased. Tools, technologies, and methods have been, and continue to be developed to help assess the relevance of electronic data, and most advancements have been designed to grapple with enormous quantities of email.

Social media is now widely considered to be overtaking email as the primary means of electronic communication. While this appears to be the case for personal communication, it remains to be seen whether business communication will follow suit. If it does, technological and workflow approaches to each phase of the current e-discovery model will need to evolve to ensure social media content is properly preserved, collected, reviewed, and produced in satisfaction of discovery obligations.

Minimal Corporate Risk So Far

SharePoint and a number of services under the umbrella of “Enterprise 2.0” contain social-like features, but are generally controlled or hosted by the user corporation. Assume that by social content we are referring to environments such as Facebook, Twitter, and blogs – areas where interaction is not restricted to a private corporate network.

There have already been a surprising number of court decisions related to discovery of social media content. However, a distinct pattern is clear: these cases deal with individual-oriented litigation such as personal injury.^[1] Where a corporation is involved, it is the party requesting social media information from an individual, usually to refute a claim about the individual’s physical condition or state of mind.

It’s unlikely that a “smoking gun” piece of evidence relevant to high-value corporate litigation will turn up in a social media posting. Corporations and their key employees generally understand social media environments to be public spaces, and are not using them to communicate company secrets. Corporate social content is typically for marketing purposes and intentionally public. While risks to corporations may be minimal now, as social media adapts to serve more business uses, it will become more relevant to e-discovery.

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The ESI Maven: A New Breed of ESI Practitioner

Are You Ready for e-Discovery 2.0?

In recent months there has been a furor over new disruptive technologies entering the e-discovery marketplace. Predictive coding, non-linear review workflows and machine assisted learning are changing the landscape and practice of law in the e-discovery arena and being discussed ad nauseam in legal periodicals, blogs and conferences. But amid all the discussion one key component has been overlooked: what will the new e-discovery practitioner look like in this new technology driven ESI landscape? As the suite of services in e-discovery evolves to include technology assisted non-linear review a new breed of skilled knowledge workers are emerging.

Big Data & Evolution of e-Discovery 2.0

Since the first attorneys asked the fateful question “do you think email is discoverable?” about a decade ago, Electronically Stored Information (ESI) has been doubling or tripling every 18-24 months with 85% of that data residing in business domains. The IDC Digital Universe study, “Extracting Value from Chaos” forecasts 1.8 zettabytes (1.8 trillion gigabytes) will be created and replicated in 2011 at a rate faster than predicted by Moore’s law^[1]. As corporations and law firms have scrambled to wrap their arms around the ever-increasing mountain of data associated with some litigation and government investigations, the cost associated with the discovery process has skyrocketed rendering certain matters cost prohibitive. Rather than focusing on the merits of a case, attorneys have had to spend exorbitant amounts of money to preserve, collect, search and ultimately produce the proverbial needle in a haystack from first megabytes, then terabytes and now petabytes of data. Linear review is still defensible and ultimately reliable, but as big data dominates aspects of the market, e-discovery practitioners need to evolve to embrace technology assisted review as well.

The first plan of attack was one of brute force; companies hired legions of contract attorneys to painstakingly review every document for relevance, privilege and key issues. Over time the multi-million dollar cost of collecting, processing, hosting and producing the relevant data has been commoditized and reigned in, but the bulk of the cost for an electronic discovery matter, the cost for the human capital has remained a heavy burden. The introduction of enterprise cloud computing and now with the iCloud personal cloud computing, the volume of data is only trending upwards. The eyes on every document linear review process and its brute force approach is simply cost prohibitive when dealing with the new Big Data infiltrating the e-discovery Market.

The Paradigm Shift: Machine Learning and Big Data Analytics

They say that necessity breeds ingenuity, and this has certainly been the case with the e-discovery industry. Out of the morass of data technologies that facilitate early case assessment, advanced algorithms and machine assisted learning or front end semantic indexing have steadily cropped up as viable alternatives to traditional Boolean searching and brute force approaches to e-discovery ^[2]. The new technology has the capacity to reshape the e-discovery game. If we are to believe the recent ruminations of Judge Peck,^[3] it also likely has blessing from the bench if used in a defensible workflow and in a reasonable manner when data volume necessitates its use.

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