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Monthly Archives :

November 2010

eDiscovery Searching: Exceptions are the Rule
 

Virtually every collection of electronically stored information (ESI) has at least some files that cannot be effectively searched.  Corrupt files, password protected files and other types of exception files are frequent components of your ESI collection and it can become very expensive to make these files searchable or reviewable.  Being without an effective plan for addressing these files could lead to problems – even spoliation claims – in your case.

How to Address Exception Files

The best way to develop a plan for addressing these files that is reasonable and cost-effective is to come to agreement with opposing counsel on how to handle them.  The prime opportunity to obtain this agreement is during the meet and confer with opposing counsel.  The meet and confer gives you the opportunity to agree on how to address the following:

  • Efforts Required to Make Unusable Files Usable: Corrupted and password protected files may be fairly easily addressed in some cases, whereas in others, it takes extreme (i.e., costly) efforts to fix those files (if they can be fixed at all).  Up-front agreement with the opposition helps you determine how far to go in your recovery efforts to keep those recovery costs manageable.
  • Exception Reporting: Because there will usually be some files for which recovery is unsuccessful (or not attempted, if agreed upon with the opposition), you need to agree on how those files will be reported, so that they are accounted for in the production.  The information on exception reports will vary depending on agreed upon format between parties, but should typically include: file name and path, source custodian and reason for the exception (e.g., the file was corrupt).

If your case is in a jurisdiction where a meet and confer is not required (such as state cases where the state has no rules for eDiscovery), it is still best to reach out to opposing counsel to agree on the handling of exception files to control costs for addressing those files and avoid potential spoliation claims.

On Monday, we will talk about the types of exception files and the options for addressing them.  Oh, the suspense!  Hang in there!

So, what do you think?  Have you been involved in any cases where the handling of exception files was disputed?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Project Management: Train the Team — Agenda
 

Training for a task should be thorough and aimed at teaching the team what they need to know to do the work correctly and efficiently.  It should cover project overview information, procedures for doing the work, and sample work.  Here’s a sample training agenda for a document review project that you can use as a guide:

Case Background Information

  • A description of the parties
  • A description of the events that led to the case
  • A description of the allegations and defenses
  • An overview of the expected case schedule

Project Overview

  • A description of the goals of the document review project
  • A description of the process
  • An overview of the expected project schedule

Responsive Criteria

  • Go through the criteria – point by point – to ensure the group understands what is responsive and what is privileged
  • Provide samples of documents that are responsive and documents that are not responsive

Mechanics

  • Describe the roles of individuals on the team (reviewers, quality control staff, supervisors, project managers, etc.)
  • Review the procedures for the review
  • Train the team how to use the online review tool

Samples

  • Have the team do some sample work and turn it in
  • Review the sample work and go over it as a group

The first items on the agenda  — case background and project overview information — are very important.  While they don’t directly cover the mechanics of the work the team will be doing, these topics are significant for motivating the team.   The team will “invest” more in the project if they understand the big picture and how the work they are doing fits in.  In fact, it’s always a good idea to have a senior litigation team member participate in the overview portion of the training.  This further emphasizes the importance of the work the team will be doing.

What do you think?  Have you seen the difference good training can make on a project? Do you have useful training tips to offer?  Please share your comments or let us know if you’d like more information on a topic.

eDiscovery Project Management: Train the Team — Preparation
 

As critical as procedures are, they aren’t enough.  People need to be trained in applying those procedures.  Training the staff will get your project off to a good start.

Training is especially important for tasks that require a team of people to do the work – for example, a document review project.  When a team is doing the work, train them together as a group if that’s possible.  That way, different interpretations of the rules will likely surface and team members will benefit from the questions of others.

Training should cover project overview information and a review and explanation of the procedures for doing the work.  If there’s a subjective component to the work, review the subject matter outline or criteria.  Have the team do sample work, review it right away, and go over it as a group.

Let me give you a more detailed training plan and outline, using training for a document review project as an example.

Prepare a Project Manual

As a starting point, prepare a manual for each team member.  Include this information in the manual:

  • Case Documents, such as the complaint and request for production;
  • The Document Review Criteria, which provides guidelines for determining responsiveness and privilege;
  • A List of Custodians with information about each such as his/her position in the organization, a description of his/her role in the events that are at issue, and the types of documents you expect will be found in the custodian’s files;
  • Lists of Keywords, Key Characters, Key Events and Key Dates;
  • The Review Procedures;
  • The Review Schedule;
  • Instructions for Resolving Questions;
  • Instructions for Use of the Review Tool.

You’ll use this manual as the basis for the training, and in addition it will be a useful resource for each team member throughout the project.

Tomorrow I’ll give you a sample training agenda that you can use as a guide for your own training sessions.

What do you think?  Have you seen the difference good training can make on a project? Do you have useful training tips to offer?  Please share your comments or let us know if you’d like more information on a topic.

eDiscovery Case Law: Discovery Compelled for Social Media Content

Discoverability of social-media usage continues to be a hot topic for eDiscovery.  Information for litigants’ LinkedIn, Facebook, Twitter and MySpace accounts can be the “smoking gun” for litigators looking to pursue or defend a claim.

In McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), defendant Hummingbird Speedway, Inc. sought to compel discovery of the plaintiff’s social network account log-in names, and passwords.  A copy of the opinion granting that Motion to Compel is available here.

The plaintiff was allegedly injured during a stock car race in the summer of 2007.  During the litigation that followed, defendant Hummingbird Speedway, Inc. requested production of plaintiff’s user names, log-in names, and passwords for any social network accounts – to which the plaintiff objected, arguing that the information was confidential.  Based on information in the public sections of the plaintiff’s social network accounts, the defendant filed a Motion to Compel.

In his opposition to the motion, the plaintiff argued that communications with friends via social media sites were private and protected from disclosure. The court disagreed, indicating that the plaintiff was essentially asking the court to recognize an evidentiary privilege for such communications, but that there is no “social media privilege” recognized by Pennsylvania’s court or legislature.

The court also noted that those communications were not privileged based on “Wigmore’s test for privilege”, which requires the plaintiff to establish four factors:

  • “His communications originated in the confidence that they would not be disclosed”;
  • “The element of confidentiality is essential to fully and satisfactorily maintain the relationship between the affected parties”;
  • “Community agreement that the relationship must be sedulously fostered”; and
  • “The injury potentially sustained to the relationship because of the disclosure of the communication outweighs the benefit of correctly disposing of litigation”.

Because the plaintiff failed to establish these factors, the court ultimately ruled that “Where there is an indication that a person’s social network sites contain information relevant to the prosecution or defense of a lawsuit…and the law’s general dispreference for the allowance of privileges, access to those sites should be freely granted”.

So, what do you think?  There have been other cases where the discoverability of social media was called into question – have you experienced any?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. – For those (like me) who didn’t know what the word “sedulously” meant, I’ve provided a link to the definition above… 🙂

eDiscovery Case Law: Adverse Interference Sanction for Lost Text Messages

As the sources of electronic files continue to become more diverse, case law associated with those different sources has become more commonplace.  One ruling in a case last month resulted in an adverse instruction against the US Government for failing to preserve text messages.

In United States v. Suarez, (D.N.J. Oct. 21, 2010), United States District Judge Jose L. Linares considered adverse inference sanctions related to the Government’s failure to preserve text messages.  In this case, the F.B.I. should have retained text messages between a cooperating witness and F.B.I. agents because it was reasonably foreseeable that the text messages would be discoverable by defendants in later criminal proceedings. However, given the lack of evidence of Government bad faith in failing to impose a litigation hold on the text messages until seven months after its investigation ended, the court imposed the “least harsh” spoliation adverse inference instruction that would allow but not require the jury to infer that missing text messages were favorable to defendants.

A cooperating witness posed as a developer and, as instructed by Federal Bureau of Investigation agents, offered payments to local public officials in exchange for expediting his projects and other assistance. During the F.B.I. investigation, the witness exchanged Short Message Service electronic communications (text messages) with F.B.I. agents. In later criminal proceedings, the government notified the court that it had incorrectly stated that no text messages were missing. The court held a hearing at which F.B.I. agents and information technology specialists described F.B.I. procedures to preserve and retrieve data generated by handheld devices. Despite an F.B.I. Corporate Policy Directive on data retention and litigation hold policies, no litigation hold was in place when the cooperating witness was “texting” with agents.

In a “not-for-publication” decision, the court pointed out that the Government’s obligation under Fed. R. Crim. P. 16 to disclose information was more limited than its obligation under civil discovery rules. However, the text messages with the witness were “statements” under the Jencks Act that should have been preserved by the Government. The F.B.I. was “well-equipped” to preserve documents, and the U.S. Attorney “was aware of the importance of preserving documents relevant to the litigation and could have requested a litigation hold on the text messages from the inception of the investigation.” The request for a litigation hold was not made until seven months after the investigation ended and three months after the F.B.I. began searching its servers for missing text messages.

In determining sanctions, the court considered precedents in the civil cases of MOSAID Techs. Inc. v. Samsung Elecs. Co., 348 F. Supp. 2d 332 (D.N.J. 2004), and Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010). The court concluded there was “little evidence” of Government bad faith leading to loss of the text messages. On the other hand, evidence indicated the defense was prejudiced by the loss of text messages with the cooperating witness, whose credibility was “of paramount importance.” The court thus denied defendants’ request for the “relatively severe” sanction of suppression of the witness’s testimony and all tape recordings in which he was a party. However, an adverse inference instruction was appropriate under MOSAID criteria. The text messages had been within the Government’s control and were intentionally deleted by F.B.I. agents, and the U.S. Attorneys’ Office failed to take steps to preserve the messages. The messages were relevant to claims or defenses, and it was reasonably foreseeable by the Government that the messages would later be discoverable. The court concluded that the “least harsh” spoliation adverse inference jury instruction described in Pension Committee would be issued because Government bad faith had not been shown. Such an instruction would allow but not require the jury to infer that missing text messages were favorable to defendants.

So, what do you think?  Have you encountered a case where preservation of text messages was a critical component?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

SaaS and eDiscovery: Load Your Own Data

Software as a Service (SaaS) applications hosted “in the cloud” are continuing to become more popular.  A new IDC study forecasts the SaaS market to reach $40.5 billion by 2014, an annual growth rate of 25.3%.  Also by 2014, about 34% of all new business software purchases will be via SaaS applications, according to IDC.

If you haven’t used a SaaS application, you haven’t used the Internet.  Amazon, Facebook, Twitter, eBay and YouTube are all examples of SaaS applications.  Ever shared a document via Google Docs with a colleague or business partner?  Use SalesForce.com for Customer Relationship Management (CRM)?  These are SaaS applications too.

Like any software application, SaaS applications are driven by data.  Many enable you to upload your own data to use and share via the Web.  Facebook and YouTube enable you to upload and share pictures and videos, Google Docs is designed for sharing and maintaining business documents, and even SalesForce.com allows you to upload contacts via a comma-separated values (CSV) file.

eDiscovery SaaS Applications

SaaS applications have also become increasingly popular in eDiscovery (especially for review and production of ESI) with several eDiscovery SaaS applications available that provide benefits including: no software to install, intuitive browser-based interfaces and ability to share the collection with your client, experts, and co-counsel without distributing anything more than a login.

However, most eDiscovery SaaS applications do not enable the user to upload their own data.  Or, if they do, it can be costly.

One exception is OnDemand™, which has now rolled out the new SelfLoader™ module in beta to enable clients to load their own data.  With SelfLoader, clients can load their own images, OCR text files, native files and metadata to an existing OnDemand database using an industry-standard load file (IPRO’s .lfp or Concordance’s .opt) format.

The best part?  You can load your data for free.  With SelfLoader, OnDemand provides full control to load your own data, add your own users and control their access rights.

Is this a start of a trend in eDiscovery?  Will more eDiscovery SaaS providers provide self-loading capabilities?  What do you think?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Project Management: Assign the Right People

Last week, on Wednesday and Thursday, we talked about assembling an electronic discovery team.  That’s not the only team you might need.  You may need to assemble a team for a specific task — for example, for a document review.

It’s essential that you assign the right type of people to a task.  For many litigation projects, this means deciding whether attorneys or non-attorneys will do the work.

Pushing the work up to over-qualified people can be just as problematic as using under-qualified people.   I’ve seen first hand how important this is.  I once worked on two large cases simultaneously where millions of documents had to be reviewed in each case.  In one case, I convinced the client that paralegals could handle the bulk of the work.  In the other case, the client insisted that only lawyers could do the work.

I don’t have to tell you how much more the second client paid for the work.  You may be surprised, however, by the quality comparison.  Each project involved multiple law firms, and one firm was involved in both.  That firm did quality control on both projects, and found that there was significantly less re-work required in the project where paralegals did most of the work.

Why?  We gave the paralegals objective criteria that didn’t require a law degree to understand, and they were far more attentive to work that made the lawyer’s eyes glaze over.  The lawyers — who were responsible for making decisions, answering questions, and reviewing work — were able to stay attentive to the more substantive work.

This is where breaking a task into components can help.  Here’s an example.  Everyone knows that determining privilege is an attorney task.  That doesn’t mean, however, that only attorneys can work on the project.  In every collection there are types of documents that will never be privileged unless they bear privileged annotations (published materials, annual reports, case-specific documents like routine manufacturing and quality control reports, etc.).  A trained paralegal using good criteria can do an initial review to identify potentially privileged documents for attorney review.

A project handled like this will certainly cost less, and will probably result in more consistent, higher quality work.

Have you worked on projects where the wrong people did the work?  Please share your comments or let us know if you’d like more information on a topic.

eDiscoveryJournal Webinar: More on Native Format Production and Redaction

As noted yesterday, eDiscoveryJournal conducted a webinar last Friday with some notable eDiscovery industry thought leaders regarding issues associated with native format production and redaction, including George Socha, Craig Ball and Tom O’Connor, and moderated by Greg Buckles, co-founder of eDiscoveryJournal, who has over 20 years experience in discovery and consulting.

What follows is more highlights of the discussion, based on my observations and notes from the webinar.  If anyone who attended the webinar feels that there are any inaccuracies in this account, please feel free to submit a comment to this post and I will be happy to address it.

More highlights of the discussion:

  • Redaction – Is it Possible, Practical, Acceptable?: George said it’s certainly possible and practical, but the biggest problem he sees is that redaction is often done without agreement between parties as to how it will be done.  Tom noted that the knee jerk reaction for most of his clients is “no” – to do it effectively, you need to know your capabilities and what information you’re trying to change.  Craig indicated that it’s not only possible and practical, but often desirable; however, when removing information such as columns from databases or spreadsheets, you need to know data dependencies and the possibility of “breaking” the file by removing that data.  Craig also remarked that certain file types (such as Microsoft Office files) are now stored in XML format, making it easier to redact them natively without breaking functionality.
  • How to Authenticate Redacted Files based on HASH Value?:  Craig said you don’t – it’s a changing of the file.  Although Craig indicated that some research has been done on “near-HASH” values, George noted that there is currently no such thing and that the HASH value changes completely with a change as small as one character.  Tom noted that it’s “tall weeds” when discussing HASH values with clients to authenticate files as many don’t fully understand the issues – it’s a “where angels fear to tread” concern.
  • Biggest Piece of Advice Regarding Redaction?: Craig said that redaction of native files is hard – So what?  Is the percentage of files requiring redaction so great that it needs to drive the process?  If it’s a small percentage, you can always simply TIFF the files requiring redaction and redact the TIFFs.  George indicated that one of the first things he advises clients to do is to work with the other side on how to handle redactions and if they won’t work with you, go to the judge to address it.  Tom indicated that he asks the client questions to find out what issues are associated with the redaction, such as what the client wants to accomplish, percentage of redaction expected, etc. and then provides advice based on those answers.
  • Redaction for Confidentiality (e.g., personal information, trade secrets, etc.): George noted that, while in many cases, it’s not a big issue; in some cases, it’s a huge issue.  There are currently 48 states that have at least some laws regarding safeguarding personal information and also efforts underway to do so at a national level.  We’re a long way from coming up with an effective way to address this issue.  Craig said that sometimes there are ways to address programmatically – in one case where he served as special master, his client had a number of spreadsheets with columns of confidential data and they were able to identify a way to handle those programmatically.  Tom has worked on cases where redaction of social security numbers through search and replace was necessary, but that there was a discussion and agreement with opposing counsel before proceeding.
  • How to Guarantee that Redaction Actually Deletes the Data and Doesn’t Just Obscure it?: Tom said he had a situation on a criminal case where they received police reports from the Federal government with information on protected witnesses, which they gave back.  There is not a “cookie-cutter” approach, but you have to understand the data, what’s possible and provide diligent QC.  Craig indicated that he conducts searches for the redacted data to confirm it has been deleted.  Greg noted that you have to make sure that the search tool will reach all of the redacted areas of the file.  George said too often people simply fail to check the results – providers often say that they can’t afford to perform the QC, but law firms often don’t do it either, so it falls through the cracks.  Tom recommends to his law firm clients that they take responsibility to perform that check as they are responsible for the production.  As part of QC, it’s important to have a different set of eyes and even different QC/search tools to confirm successful redaction.

Thanks to eDiscoveryJournal for a very informative webinar!

So, what do you think?  Do you have any other questions about native format production and redaction?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscoveryJournal Webinar: Debate on Native Format Production and Redaction
 

eDiscoveryJournal conducted a webinar last Friday with some notable eDiscovery industry thought leaders regarding issues associated with native format production and redaction.  The panel included George Socha of Socha Consulting, LLC and co-founder of EDRM, Craig Ball of Craig D. Ball, P.C. and author of numerous articles on eDiscovery and computer forensics, and Tom O’Connor, who is a nationally known consultant, speaker and writer in the area of computerized litigation support systems.  All three panelists are nationally recognized speakers and experts on eDiscovery topics.  The panel discussion was moderated by Greg Buckles, co-founder of eDiscoveryJournal, who is also a recognized expert with over 20 years experience in discovery and consulting.

I wrote an article a few years ago on review and production of native files, so this is a subject of particular interest to me.  What follows is highlights of the discussion, based on my observations and notes from the webinar.  If anyone who attended the webinar feels that there are any inaccuracies in this account, please feel free to submit a comment to this post and I will be happy to address it.

Having said that, here are the highlights:

  • Definition of Native Files: George noted that the technical definition of native files is “in the format as used during the normal course of business”, but in the application of that concept, there is no real consensus.  Tom, who has worked on a number of multi-party cases has found consensus difficult as parties have different interpretations as to what defines native files.  Craig noted that it’s less about format than it is ensuring a “level of information parity” so that both sides have the opportunity to access the same information for those files.
  • “Near-Native” Files: George noted that there is a “quasi-native” or “near-native” format, which is still a native format, even if it isn’t in the original form.  If you have a huge SQL database, but only produce a relevant subset out of it in a smaller SQL database, that would be an example of a “near-native” format.  Individual Outlook MSG files are another example that, as Craig noted, are smaller components of the original Outlook mailbox container for which individual message metadata is preserved.
  • Position of Producing Native Files: Craig noted that the position is often to provide in a less usable format (such as TIFF images) because of attorneys’ fear that the opposition will be able to get more information out of the native files than they did.  George noted that you can expect expert fees to double or even quadruple when expecting them to work with image files as opposed to native files.
  • Negotiation and Production of Metadata: Tom noted that there is a lack of understanding by attorneys as to how metadata differs for each file format.  Craig noted that there is certain “dog tag” metadata such as file name, path, last modified date and time, custodian name and hash value, that serve as a “driver’s license” for files whereas the rest of the more esoteric metadata complete the “DNA” for each file.  George noted that the EDRM XML project is working towards facilitating standard transfer of file metadata between parties.
  • Advice on Meet and Confer Preparation: When asked by Greg what factor is most important when preparing for meet and confer, Craig said it depends partly on whether you’re the primary producing or requesting party in the case.  Some people prefer “dumbed down” images, so it’s important to know what format you can handle, the issues in the case and cost considerations, of course.  George noted that there is little or no attention on how the files are going to be used later in the case at depositions and trial and that it’s important to think about how you plan to use the files in presentation and work backward.  Tom noted it’s really important to understand your collection as completely as possible and ask questions such as: What do you have?  How much?  What formats?  Where does it reside?  Tom indicated that he’s astonished how difficult it is for many of his clients to answer these questions.

Want to know more?  Tune in tomorrow for the second half of the webinar!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

State eDiscovery Rules: Oklahoma Adopts Amendments to Rules for eDiscovery
 

Though the amendments to the Federal Rules of Civil Procedure in December of 2006 have affected how discovery of ESI is handled in Federal courts, lawyers who practice exclusively in state court cases may not have had to consider rules for handling of ESI in their cases.  Some states have adopted civil procedure rules for eDiscovery; others have not.

Effective today, one state that has adopted new amendments to their Rules of Civil Procedure is Oklahoma.  Reagan DeWitt-Henderson of Litgistix Business Solutions, based in Tulsa, has written a terrific article that will be published in this month’s Tulsa Lawyer that addresses the Oklahoma rules changes in detail.  To access the article online, click here.

Highlights of the changes (as discussed in the article):

  • ESI is Added to the List of Obtainable Discovery (12 O.S. § 3226).
  • Only Reasonably Accessible Data to be Produced (12 O.S. § 3226): ESI must be “reasonably accessible” or else good cause must be shown for a court order to require its production.  Parties will be required to produce ESI, assuming the ESI sought is not unreasonably cumulative or overly difficult to obtain.
  • ESI Category Added as Form of Production that Can be Specified (12 O.S. § 3234): This rule is amended specifically to list ESI as data that can be requested.  Also, the producing party must generally state the form(s) of production it intends to use, which is significant as form of production (e.g., native files or scanned images, with or without metadata) determines the extent to which the collection is searchable and whether expensive conversion is required to make it searchable.
  • Option to Produce Business Records in Lieu of Answering Interrogatories Now Includes ESI (12 O.S. § 3233): However, a producing party may have to provide proprietary software or technical support to make the ESI useable to the other side or provide the ESI in a format that does not require proprietary software, or uses a free reader like Adobe Acrobat.
  • Must Address ESI in Mandatory Meet & Confer (12 O.S. § 3226): Lawyers must confer to address discovery issues, including issues related to ESI, but reporting to the judge is optional, unless so ordered.
  • “Clawback” of Confidential & Privilege Information After Unintentional Production (12 O.S. § 3226): "Clawback" of potentially privileged/confidential information is now supported, assuming the reasonable steps must have been taken to prevent the production of this material.
  • Third Party Subpoenas (12 O.S. § 2004.1): Many of the same provisions added also apply to third party subpoenas, including production of ESI, form of production and “clawback” of inadvertent productions.
  • Protection from Sanctions for Document Destruction from Good Faith Procedures (12 O.S. § 3237): Addresses the “safe harbor” provision for not providing ESI lost as a result of the routine, good-faith operation of systems but requires implementation of a “litigation hold” when the duty to preserve arises which may include suspending such operations.

Thanks to Reagan and our friends at Litgistix for such a comprehensive article about the Oklahoma rules changes!  Over the next several weeks, we will look at other states that have adopted similar rules and status of states that have not yet done so.

So, what do you think?  Wondering where your state stands?  Please share any comments you might have or if you’d like to know more about a particular topic.

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