Posts on the Topic: ‘ESI (Electronically Stored Information)’
Selecting TAR Solutions is No Easy Task, But It All Comes Down to a Few Simple Questions
In the wake of Legal Tech 2013, many of us were left digesting a host of new service providers and old service providers claiming to offer everything under the sun. Now, is a good time to reflect on how we manage eDiscovery needs, what solutions work, and how your company or firm embraces technology assisted review (TAR) solutions. In a world of ever-expanding volumes of data and an increasing frequency of matters that involve eDiscovery, it is rare that you find cases without some form of electronically stored information (ESI).
Given the consolidation and churn in the eDiscovery market, how do you pick the best solution for your eDiscovery matter? It comes down to a few simple questions.
What type of matter do you have?
The type of matter and government or legal entity that will ultimately receive your production should be a paramount concern in deciding on the appropriate tool for a matter. The SEC, FTC, DOJ and even certain districts have preferred tools and formats for production. Producing in the preferred format and suite of solutions eliminates potential conflicts and smooths the overall process of specific government investigations or litigation. The SEC & FIRNA for example have Recommind as in-house tools, while the DOJ is a Kroll Ontrack shop just to name a few examples. Having an optimized tool in your arsenal for specific agencies strengthens your platform and ultimately your case.
What is your time frame?
Time is a major factor when vetting TAR tools and workflows. If you are in the rocket docket, or working within the 45 day HSR window, traditional eyes on every document approach may be time and cost prohibitive. Leveraging a tool that prioritizes review, takes advantage of predictive coding decisions or automated review may serve as an ideal, time saving solution. However, a complex review with highly technical documents, high level of images or complex spreadsheets may lend itself less readily to the TAR tools on the market. The shorter the time frame and the larger the volume of data, the more attractive non-linear solutions become.
How big is your budget?
Traditional eyes on every document can be done in any case, but the greater the volume of data, the more you will have to spend. Analytics allow practitioners to leverage technology to create efficiency in the review process and reduce the number of documents that need to by evaluated by a human while still remaining a defensible solution.
In the past, practitioners came up against the “pick two” scenarios, where they could have a fast, accurate or inexpensive review, but not all three. Prudent application of analytics (for culling, batching, prioritization, advanced searching, clustering, suggestive coding or automated analysis) bridges the gap and allows for a practitioner to get all three options via technology in conjunction with human analysis. Now the scenario is pick 3 out of 4: fast, accurate, inexpensive and familiar (safe).
Do you plan to use advanced analytics?
Which TAR tool you select is contingent on how much, if at all, you plan to leverage analytics. Consider the following car analogy. If you want to drive fast and maneuver stealthily through traffic, and get noticed, then a sports car is right for you. However, if you are looking to stay under speed limit and drive in a less than sporty manner, many of the benefits of a sport scar go to waste. This is my impression of many of the bleeding edge technology solutions. Are they sexy, fast and high risk/reward propositions? Absolutely! Can they function like other linear solutions? Yep! But if that is how you plan to run a review then you are not best optimizing the tool and could get the job done with a more mainstream solution.
This is why no one tool fits every situation. Sometimes you need a workhorse, a safe and reliable tool to get a job done and sometimes you need something more nuanced with technology that can be leveraged to achieve greater accuracy, speed and cost savings. Neither solution is the right answer every time. As a practitioner in the eDiscovery space it is incumbent upon you and your team and your advisers to know the options along the TAR spectrum and when to leverage which tool from your toolbox.
What is the right tool for this matter?
Every company under the sun claims their solution is the best; the metaphorical easy button for every situation. Anyone who has been working in eDiscovery for more than a moment knows this simply is not the case. What works for the rapid turnaround time and road culling requirements of an HSR matter is not necessarily going to be the same solution that works for an ERISA matter looking for the proverbial needle (email) in the haystack. If resources and time are limited, leveraging advanced technology is a great option. If reviewing the opposing side’s production eyes on every document may not make fiscal sense. However, in a highly contentious case without tight deadlines and where your client is risk adverse, a big familiar name may make much more sense. The more you know about what you are looking to get out of your review resources, the easier it is to find the appropriate tool along the spectrum of technology assisted solutions.
Looking Beyond the Technology
Looking past the review platform in selecting the managed review partner that best suits your case, be sure that they can support your needs across the TAR and Linear solutions. Make sure your partner can provide you with expert management in Relativity, TAR or other Household names like Kroll. This flexibility is key; otherwise you may end up stuck with a Managed review provider trying to tout their one trick pony as the best solution in every case.
Hudson realized early that our clients needs vary… matter-by-matter, case-by-case. And that is why we chose to take a diversified portfolio approach to our partnerships. We embraced TAR without forsaking traditional eDiscovery staffing and management because the legal practice needs a variety of solutions. If you are interested in learning more about our solution suite see the following press releases.
So, predictive coding is here to stay, how do we get an expert?
Since the spectrum of solutions and the ambiguity in the advanced analytics space requires dedicated and concerted study, it can seem like a daunting and uninviting space to enter. But, like it or not, it is increasingly relevant in an array of practices. You might be reading this and shaking your head, thinking “really, you think a corner office partner will sit through webinars and read about analytics and algorithms. Most people go into the practice of law to avoid math!” While it would be great to have rainmakers and general counsel fully educated on all the changing case law and technology in this space, it isn’t practical. So, how do you bridge the intellectual gap? One solution is to build a world-class team of discovery savvy lower to mid level assets at your firm or company.
WHO ARE THE ESI MAVENS
As I have previously discussed in “The ESI Maven: A New Breed of ESI Practitioner” and “Emergence of the eDiscovery Knowledge Worker,” there is an entire swath of professionals who have grown up in the post eDiscovery legal space. The key in a large firm or corporation, is to build an internal coalition of employee resources who understand the alternative workflows, technical nuances and implications of technology-assisted review, or a team of vendor companies. Perhaps, instead of a team, you have a key person who is dedicated to eDiscovery and solutions with a greater reliance on the expertise and support of a more hands-on external vendor.
This group of people, or single person, may not currently exist within your firm, or the people with those titles may not be up to the task. However, there is the option to train and retain or invest in replacing unqualified personnel. A case is only as strong as the facts that support it. Without leveraging technological advancements, it is like showing up to a modern day battlefield on a horse with a bayonet. The playing field is only as level as your technology makes it today.
TRAIN AND RETAIN
Firms with employees who are not fully versed in technology-leveraged solutions should have them meet with the various vendors to request demonstrations. But, firm leadership must take the training past the pretty user interface and educate personnel to be well-versed on the case law supporting the applications discussed as well as the technology. Vendors want to work with you, so make them work to help develop you team’s knowledge. Direct your team to take advantage of lunch & learns, webinars, white papers, blogs and vendor written articles. Support attendance to relevant classes or conferences and encourage involvement in technology-focused groups (like Women in eDiscovery).
If a concern is loss of billable time due to this effort, then select a single member of your team to go out into the vanguard, gather this information and knowledge, and task that person with educating the team. Any time and money spent on truly educating your teams on the correct use of these tools, the case law and technology that each tool relies on will be recouped in spades; allowing your organization to take advantage of the benefits of technology assisted review.
INVEST AUGMENT AND REPLACE
A number of firms and in-house law departments have not yet made a transition to a dedicated eDiscovery process and group of resources to support eDiscovery. Some folks even cling to the ever fading hope that eDiscovery is a passing fad. Obviously, not only is eDiscovery here to stay, it requires a specific knowledge base and skill set to support the effective application of the tools necessary to execute in matters related to ESI. Depending on how underdeveloped the eDiscovery team is in your organization, there will have to be an investment to add the talent necessary to create a functional eDiscovery team or at minimum bring in a person versed in the nuances of eDiscovery.
While not currently having the dedicated resources necessary to support the increasing volume of eDiscovery matters is generally a disadvantage, having a clear slate offers a unique advantage to bring in experts who have spent their entire legal career in the eDiscovery space. It may be a mid-level associate or sophisticated technology expert with an understanding of the importance of statistics in the changing face of eDiscovery. Whatever route taken, pay for the best talent your firm can afford.
The last piece of the puzzle is integration. Your internal team and external vendor resources need not operate in a vacuum. The team needs a clear process for engaging these experts early and often. When possible, try to engage personnel beyond the core eDiscovery team to learn more about eDiscovery and work to organically grow eDiscovery fluent members at all levels. The greater the overall familiarity with and acceptance of advanced technology the more likely it will be effectively leverage.
The integration needs to extend to the IT department, since they understand the network and data architecture. Along with IT, stakeholders in the overall legal department and the litigation support teams need to have an open stream of communication. It is essential to understand the network architecture and litigation support is key in evaluating the tools to access the data and manipulate it and the legal stakeholder ultimately needs to inform the whole group of the overriding goal for the pending review. Having some level of common understanding of the language of eDiscovery makes this collaboration much smoother.
In closing, it is clear, from the recent judicial activism, predictive coding is not only fair game, it may be proscribed as well. Legal practitioners need to be prepare and educate themselves on the various types of technology assisted review tools on the market, know their risks and benefits and understand how they work. Beyond the legal practitioners, there needs to be an integrated team consisting of internal and external resources that collaborate using the common language of eDiscovery to determine the best course of action in ESI heavy matters.
EORHB v. HOA Ruling Sends Shockwaves Across eDiscovery World
Predictive Coding, Technology Assisted Review (TAR), Conceptual Search, whatever the current term of choice, technology leveraged document review is the hottest topic in the eDiscovery space today. Conferences, white papers and bloggers from around the world are buzzing about judicial activism and steps taken by the bench to encourage broader use of the advanced tools available to drastically reduce eDiscovery cost. But, if recent cases have opened the door to broad acceptance of predictive coding, EORHB, Inc., et al v. HOA Holdings, LLC has the potential to blow the door off its hinges.
U.S. District Court for the Southern District of New York in Da Silva Moore v. Publicis Groupe, and the Circuit Court for Loudon County, Va., in Global Aerospace v. Landow Aviation, have approved the use of predictive coding in appropriate cases.
Judge Peck’s order in Da Silva, a case in which both agreed to utilize Predictive coding, let the legal community at large know that “”predictive coding should be used in the appropriate case” and practitioners need no longer fear being a guinea pig. Global Aerospace went one step further, compelling opposing Counsel to accept a production derived from a predictive coding workflow. However, in one of the subsequent hearings in the Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al., Judge Nolan (another heavy weight in the evolving eDiscovery space) cautioned that:
“[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information,” and as such “the defendant under Sedona 6 has the right to pick the [eDiscovery] method.”
A GAME CHANGING DECISION
A Delaware judge,Vice Chancellor Laster, took matters into his own hands, when he proactively decided to require both parties to use predictive coding, or show cause as to why they should not use predictive coding technology, to manage electronic discovery. Judge Laster gave both parties two options; either they use the same vendor of their choosing, or he would “pick one for them”.
“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.
I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor. Pick one of these wonderful discovery super powers … If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.
… I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”
This stands stark contrast to Da Silva Moore, Global Aerospace & Kleen because the parties in EORHB, Inc., et al v. HOA Holdings, LLC, (Hooters Holding Co.) not only never agreed to use predictive coding technology, it appears that this was never discussed between the parties let alone with Judge Laster. In Fact, while reading the 68 page ruling, the concept of predictive Coding was not mentioned until after 66 pages of discussion on the meaning of footnotes, the meaning of “Provided further, however” and Romanettes (i, ii).
Beyond the content of the ruling, the Location & Judge involved are both of major note. Delaware has taken a proactive approach, adopting eDiscovery protocols earlier this year which the many companies headquartered in the small sate will have to abide by. And Judge Laster, in his 2 short years, has established him self as a strong and fair judicial activist and more than that an in the trenches judge looking for a way to manage the ever expanding data volumes hitting the parties in his courtroom.
This ruling represents the first prescriptive directive to use the spectrum of Technology Assisted Review processes that fall under the broad category of Predictive Coding. This represents a major step forward for proponents of technology Assisted review, and a cautionary tale to those not yet studying, evaluating and figuring out how to integrate new technology in their practice. Furthermore, if a as a practitioner you want to make an educated decision or advise a Judge as to why you have chosen a specific tool or process, you need to understand the vastly different tools on the market and myriad of ways which they can be applied to a document review.
In light of the recent prescriptive application of Technology Assisted review in EORHB, Inc., et al v. HOA Holdings, LLC, (Hooters Holding Co.), choosing the right methodology and application of Predictive coding is all the more important. However, with the flood of new entrants claiming to offer some variation of Predictive Coding & the confusion on what predictive coding actually means, it Is all the more important for practitioners to be well informed on the offerings of various tools, the spectrum of methods to apply the technology and the ways in which the intersection of man and machine impact application to Predictive coding.
(Stay tuned for more in Part Two)
Long before the ink was dry on the Da Silva, Kleen or EORHB cases, Hudson saw the shifting tide in the eDiscovery market and took decisive action. Rather than attempting to be the jack of all trades & master of none, or acquiring one of the lesser known tools and trying to cobble together a way to offer everything under the sun, we chose to partner with the best of breed in the eDiscovery space. Both companies are at the top of their respective fields and offer unparalleled service & solutions, but that is not what makes this strategic alliance different from any of the countless partnerships announced on a daily basis and the ones to come.
In coming together Hudson & Recommind wanted to create a synergy between the industry leading technology, project management and deep history of success with many of the largest matters to hit the eDiscovery space. In short, the goal was to make our joint venture greater than the sum of its parts. In dedicating time to train Hudsons international project management team to intimately understand the platform, its capabilities and strategic workflows over countless hours and integrating a seamless delivery strategy the two companies have developed an unparalleled solution that addresses the full spectrum of technology assisted solutions, managed the Recommind & PMP Certified project managers and eDiscovery experts with a deep understanding of the application and maximization of efficiency derived from using technology assisted review tools. In short, this combined effort offers seamless integration & flawless execution.
Disruptive Technologies and Precedent Setting Case Law Are Driving A Rapid Transformation within The E-Discovery Space
Article Excerpt from Legal Management Magazine, bp perspective: Insights from a Business Partner by Cat Casey, Hudson Legal
Big data and technology leveraged solutions, from early case assessment and advanced culling and categorizing tools to predictive coding and fully automated review, have shifted the industry to e-discovery 2.0. Law firm and in-house counsel alike need to understand the impact this transition has on their practices and the efficiencies and cost savings that they present.
BIG DATA AND E-DISCOVERY 2.0
Electronically Stored Information (ESI) has been doubling or tripling every 18-24 months with 85 percent of that data residing in business domains. Some studies forecast that 1.8 zettabytes (1.8 trillion gigabytes) will be created and replicated in 2011. They say that necessity breeds ingenuity, and this has certainly been the case with the e-discovery industry. As corporations contend with mountains of data and costs in e-discovery matters, they are taking greater ownership of handling ESI and welcoming the development of more efficient solutions. Large corporations are bringing technology and ediscovery specialists in-house and exerting increased pressure on outside counsel to contain cost in all aspects of the discovery process. Increasingly, corporations are also requesting alternative fee structures with outside counsel and service providers to reign in the cost of e-discovery, requesting flat fees per gigabyte, per document or for entire matters inclusive of billable hours according to Fulbright & Jaworski LLP’s Annual Litigation Trends Survey Findings.
In the world of e-discovery 2.0 the sheer volume of data continues to drive innovation and is evolving to a level that requires a greater level of expertise from the practitioners involved. The innovation and efficiencies that are being developed to deal with the scale of data will only be as effective as the practitioners that are implementing the workflows. 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 ediscovery.
Continue Reading… The days of banker boxes and manual bates stamping are long gone as are the days of traditional unaided linear review. Download Full Article >
Reprinted with permission from Legal Management magazine, Volume 31, Issue 6, published by the Association of Legal Administrators, www.alanet.org.
Fostering a Knowledge Worker Team
There is no denying that there have been rapid transitions in the eDiscovery space, and the discovery space over the last decade and increasingly so over the last 18 months. Along with these emerging processes, technologies and increasing volumes of data, a new breed of practitioners have emerged to effectively utilize the tools and technologies changing the eDiscovery space. From statistician and linguist, sophisticated project managers and consultants to savvy up-and-coming associates and litigation support professionals, the new knowledge workers occupy a wide swath of the legal community. The million-dollar question is, how does a firm or corporation attract, retain and most of all develop this talent internally at a speed that keeps pace with the rapidly evolving market?
What type of knowledge workers do you need?
The wide spectrum of talent in the eDiscovery community and legal space offers a dizzying array of potential knowledge workers for a legal team to choose from. So, how do you begin?
The first step in the process of creating a knowledge worker centric team is to know how your company or firm wants to approach e-discovery in general. Does your practice have the scale and volume of electronic discovery initiatives to support capital investment in hardware, software and internal personnel and infrastructure? If so, a fully in-sourced solution inclusive of statisticians, linguists, and the project management and attorneys is necessary to support document reviews.
If you have a smaller volume or less of a desire to have control of the eDiscovery process then a partially or fully outsourced solution makes the most sense. Firms that partially outsource or fully outsource eDiscovery are well served to recruit and develop practitioners with project management strength and to develop associates or junior partners that understand the eDiscovery process and can articulate it to outside counsel or to potential clients. Even if your plan is to fully outsource, having a few key individuals with a deep pool of knowledge is key to ensure effective and defensible application of technology as well as ensuring that eDiscovery technology and staffing solutions are provided at reasonable and predictable pricing levels.
Building your Knowledge Worker Team
For fully in-sourced eDiscovery solutions, the key is to find attorneys and specialist that possess the requisite knowledge at the outset to support and build an eDiscovery counsel or in-house self-contained eDiscovery solution. Firms and corporations looking to develop this self-sufficient approach to eDiscovery need to employ a blend of external hires and current resources trained on the specific platforms to be applied at an enterprise level. Whether the plan is to implement a linear approach to review incorporating a basic processing tool like Law or Nuix and running the hosted review on Relativity or employing advanced analytics and predictive or automated coding, the key to success is to have professionals certified and highly experienced with the selected tools. Some existing personnel can be “trained up” to meet the increased rigors of managing the end-to-end eDiscovery process.
If the approach that your company or firm elects is one of partial or full outsourcing, it makes more sense to rely on your partnered solution providers for niche experts like linguist or statisticians and the need for quality project managers and internal resources that understand the eDiscovery process is heightened. Rather than looking purely externally, rely on the resources provided by your vendors and certifications to help elevate you current internal personnel
Resources for “Training Up”
All of the major technology providers in the eDiscovery space offer proprietary certification in their tools, many also offer webinars and articles or white papers on a wide array of topics relating to case law and changes in the eDiscovery space. These free resources are readily available and most vendors are more than happy to train or speak with your team because educated clients help everyone in the long run. Certifications seminars and coursework are also options although they require a greater monetary investment. The PMP certification, offers project managers a structure and process to approach managing eDiscovery matters that mirrors what many large scale government contracting companies utilize and it is becoming increasingly popular in the eDiscovery space.
The PMP certification requires 35 hours of coursework; documented years of project management experience and costing between $1000-2000 this investment is not unsubstantial. There are countless conferences across the U.S. and internationally that offer 2-3 days of sessions with industry leaders speaking on eDiscovery. Legal Tech, The masters, IQPC, ILTA, CEDF, Carmel Valley and many regional seminars and conventions focus purely on eDiscovery. For a novice these may be a great way to get immersed in eDiscovery, but as with any conference the professionals only get as much out of it as they want to.
Fostering the Knowledge Worker Culture
Keeping and enticing the type of people necessary to keep ahead of the curve in the eDiscovery space is no simple task. Vendors, corporations and law firms alike are courting leaders in this space. Supporting on-going learning and offering the practitioners that you bring into the fold at your organization the ability to explore and test new technology is one aspect of the puzzle. Realizing that the eDiscovery practice area does not conform to the normal ebbs and flows of legal practice is also key. Whether you fully in-source or outsource some or all of your practice, the ability to be adaptable and scalable is also a key component.
The eDiscovery market is rapidly changing, but with the right investments… organizations can get and stay ahead of the game.
Key Themes from the Premier Global Legal Conference
Hudson Legal recently sponsored and presented at the IQPC Information Governance & eDisclosure Management Summit in London. The event gathered experts in Information Governance, eDisclosure, Technology, Managed Review and Consulting from around the globe. The themes that resonated throughout the presentations and panel discussions include:
- The need for thoughtful proactive information governance programs that bridge the gap between the Corporate Legal Departments and Information Technologists.
- The dilemma of how to deal with the costs associated with the ever-increasing size and evolving types of data in the world of multinational companies.
- How to manage litigation across boarders given the various privacy laws within the EU and abroad.
- And finally, how do practitioners apply the best in breed technology in response to these issues?
The undercurrent at the event demonstrated that we are on the verge of tectonic shifts in eDiscovery and eDisclosure procedures and processes. In particular it is an exciting time for the UK legal community – there are fundamental changes happening and a chance to be a part of the shifting landscape. Continue reading “IQPC Information Governance & eDisclosure Summit 2012: London” »
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.” 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.
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.
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.
Part 2 of 2
Read Part 1
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.
Part 1 of 2
Read Part 2
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.
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.
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. 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 . The new technology has the capacity to reshape the e-discovery game. If we are to believe the recent ruminations of Judge Peck, 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.