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Tom O'Connor

Preparing for Litigation Before it Happens: eDiscovery Best Practices, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s?, eDiscovery for the Rest of Us (which we also covered as a webcast) and Litigate or Settle? Info You Need to Make Case Decisions (which is our next scheduled webcast on August 29th).  Now, Tom has written another terrific overview regarding pre-litigation considerations titled Preparing for Litigation Before it Happens that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into seven(!) parts, so we’ll cover each part separately.  Part one was published on Monday and part two was published on Wednesday.  Here’s the third part.

BTW, in addition to exhibiting at ILTACON in National Harbor, MD later this month in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register).  Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform!  We want to see you!

General Principles for Information Governance

Assuming a company wanted to begin an IG initiative, are there any general principles to follow? The leading organization in this area is ARMA. Originally, ARMA was the acronym for the Association of Records Managers and Administrators. Over the years, the board of directors realized that records management had become a recognized and integral part of information governance, which is key to doing business. To reflect this change, they decided to discontinue using ARMA as an acronym and adopted “ARMA International” as a general descriptor of the association.

ARMA has 7 core principles it believes are the basis for any IG strategy. These Generally Accepted Recordkeeping Principles® (Principles) constitute a generally accepted global standard that identifies the critical hallmarks and a high-level framework of good practices for information governance – defined by ARMA International as a “strategic, cross-disciplinary framework composed of standards, processes, roles, and metrics that hold organizations and individuals accountable for the proper handling of information assets. Information governance helps organizations achieve business objectives, facilitates compliance with external requirements, and minimizes risk posed by sub-standard information-handling practices. Note: Information management is an essential building block of an information governance program.”

Published by ARMA International in 2009 and updated in 2017, the Principles are grounded in practical experience and based on extensive consideration and analysis of legal doctrine and information theory. They are meant to provide organizations with a standard of conduct for governing information and guidelines by which to judge that conduct and are, in fact, all contained with the eithht HIMA principles mentioned above.

Principle of Accountability: A senior executive (or a person of comparable authority) shall oversee the information governance program and delegate responsibility for information management to appropriate individuals.

Principle of Transparency: An organization’s business processes and activities, including its information governance program, shall be documented in an open and verifiable manner, and that documentation shall be available to all personnel and appropriate, interested parties.

Principle of Integrity: An information governance program shall be constructed so the information assets generated by or managed for the organization have a reasonable guarantee of authenticity and reliability.

Principle of Protection: An information governance program shall be constructed to ensure an appropriate level of protection to information assets that are private, confidential, privileged, secret, classified, essential to business continuity, or that otherwise require protection.

Principle of Compliance: An information governance program shall be constructed to comply with applicable laws, other binding authorities, and the organization’s policies. Principle of Availability: An organization shall maintain its information assets in a manner that ensures their timely, efficient, and accurate retrieval.

Principle of Retention: An organization shall maintain its information assets for an appropriate time, taking into account its legal, regulatory, fiscal, operational, and historical requirements.

Principle of Disposition: An organization shall provide secure and appropriate disposition for information assets no longer required to be maintained, in compliance with applicable laws and the organization’s policies.

We’ll publish Part 4 – Who Uses Information Governance? – next Monday.

So, what do you think?  Does your organization have a plan for preparing for litigation before it happens?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Preparing for Litigation Before it Happens: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s?, eDiscovery for the Rest of Us (which we also covered as a webcast) and Litigate or Settle? Info You Need to Make Case Decisions (which is our next scheduled webcast on August 29th).  Now, Tom has written another terrific overview regarding pre-litigation considerations titled Preparing for Litigation Before it Happens that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into seven(!) parts, so we’ll cover each part separately.  Part one was published on Monday.  Here’s the second part.

BTW, in addition to exhibiting at ILTACON in National Harbor, MD later this month in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register).  Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform!  We want to see you!

What is Information Governance?

The most basic explanation, and one I have used for years, is that IG is the flip side of the ED coin. But before we define it, let’s take a look at what it is NOT.

Much like other discussions in other areas of eDiscovery, IG is not a product. It is, rather, a process that may incorporate several products depending upon the business type and their workflow.

Since IG is not a product, then it clearly cannot be a DMS.  Yet the most common response I received when I asked someone if they had an IG solution was, “yes, we use iManage/NetDocuments/Worldox”. A simple IG solution may include a Document Management System (DMS) product but the DMS itself is designed for the organization and search of only certain types of documents. It may have limitations on document types it can work with and almost always has a document size limit. Craig Bayer, the principal of legal document management firm Optiable, put it best when he said to me that “A DMS is not an enterprise data organization solution.”

And as a side note, for these same reasons and several others, the most important reason being that a DMS will change metadata when documents from outside the DMS are imported into it, a DMS is also not a good eDiscovery tool.  Again, it can be part of the ED workflow process but typically at the front end of that process. Thanks to Paul Unger, managing partner of the Columbus Ohio office of the Affinity Consulting Group for this tip.

So, now that we’ve discussed what is not IG, let’s talk about what it is.

IG, or as it’s also known data governance, is basically a set of rules and policies that have to do with a company’s data. These rules and policies can cover issues such as:

  • Security
  • Privacy
  • Data access
  • Data storage & maintenance
  • Data backup and/or disposal
  • Accountability for employees handling data

But the benefits of data governance don’t stop there. It can also help with:

  • Preventing isolated unregulated data storage
  • Making data accessible across the enterprise
  • Providing accurate, consistent data
  • Ensuring compliance with laws and regulations that govern data, such as the Sarbanes-Oxley Actor HIPAA

IG will also almost always involve some form of unstructured data, that is, information that either is not in a fielded form in databases or is annotated or otherwise semantically tagged in documents. Unstructured data is typically text-heavy but may contain other data such as dates and numbers. A 1998 Merrill Lynch study cited a rule of thumb that somewhere around 80-90% of all potentially usable business information may originate in unstructured form and this figure is still generally accepted as valid.

IG will always be proactive in dealing with corporate data, unlike eDiscovery which is reactive in nature But, because “data” can refer to so many different items, from email and word processing documents to A/V files and unique file types such as CAD drawing or x-rays, is it possible to have standardized best practices for all types of data usage or it is most likely that rules will be built for different business types?

In fact, different IG rules do exist for different professions and industries and some have their own data management tools. Examples include:

  • Health
  • Education
  • Business
  • Nursing
  • Manufacturing
  • Non-Profits

Other IG rules may spring up because they are imposed by entities outside the business. From something as simple as a statute of limitations to general records retention statutes or industry specific regulations and even statutory controls in areas such as privacy, external pressures on a company may force a need for a cohesive IG policy.

We’ll publish Part 3 – General Principles for Information Governance – on Friday.

So, what do you think?  Does your organization have a plan for preparing for litigation before it happens?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Preparing for Litigation Before it Happens: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s?, eDiscovery for the Rest of Us (which we also covered as a webcast) and Litigate or Settle? Info You Need to Make Case Decisions (which is our next scheduled webcast on August 29th).  Now, Tom has written another terrific overview regarding pre-litigation considerations titled Preparing for Litigation Before it Happens that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into seven(!) parts, so we’ll cover each part separately.  Here’s the first part.

BTW, in addition to exhibiting at ILTACON in National Harbor, MD later this month in booth 936, CloudNine will also host a happy hour on Tuesday, August 21 from 4:30 to 6:30pm ET at the National Harbor’s Public House (click here to register).  Come and get to know CloudNine, your provider for LAW PreDiscovery®, Concordance® and the CloudNine™ SaaS platform!  We want to see you!

Introduction

Information Governance (IG) has always been part of the eDiscovery landscape but not always a large part. Although it appears on one of the first Electronic Discovery Reference Model (EDRM) charts it was not discussed in any of the standards models and was typically not included in any detailed EDRM discussion.  Here is the early EDRM model chart from 2009 that became the initial standard – note how it wasn’t even called “Information Governance” back then, it was called “Information Management”.

IG was originally important for reducing the population of potentially responsive electronically stored information (ESI) that might be subject to litigation by helping organizations adopt best practices for keeping their information “house in order”.  But now with an increased concentration on the two-fold concerns of privacy and security, IG has become more important.  Good IG best practices and technologies can allow organizations to conduct data discovery on their organizations data, keep it secure, protect privacy and help lower potential litigation costs by archiving or disposing of records in a repeatable defensible manner.

We’ll explore the implementation of Information Governance best practices to help organizations better prepare for litigation before it happens, as follows:

  1. What is Information Governance?
  2. General Principles for Information Governance
  3. Who Uses Information Governance?
  4. Basic Information Governance Solutions
  5. One Reason Why Information Governance is Not More Popular
  6. Concluding Remarks

We’ll publish Part 2 – What is Information Governance? – on Wednesday.

So, what do you think?  Does your organization have a plan for preparing for litigation before it happens?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Four

This overview is the final of a four-part series, presented separately.   For your reference, the previous articles can be accessed through these individual links:  Part OnePart Two;  Part Three.

Series Conclusion

The litigation world has changed dramatically in the past fifty years.  In 1962, 11.5% of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8% despite a five-fold increase in the number of civil filings. Those figures aren’t a result of increased eDiscovery activity (ABA Journal of Litigation 2004).

In state courts, a U.S. Justice Department study of the nation’s 75 largest counties found that nearly 97% of civil cases are settled or dismissed without a trial. The number of cases going to trial fell from 22,451 in 1992 to 11,908 in 2001, according to the same study. (source: Bureau of Justice Statistics)

But is eDiscovery the culprit? Yes, eDiscovery is expensive but numerous other factors, especially ADR and extended motion practice, have been much greater contributors to the reduction in cases going to trial.  And current trends in early case assessment and early data assessment, much more than the overall costs of eDiscovery, may be playing a higher part in ongoing reduction of trials than previously understood.

The decline in the number of trials does not necessarily imply a reduction in access to justice.   eDiscovery is still an effective tool in ADR and class actions and MDL practice, which has replaced much of standard litigation, a factor which does not appear in traditional trial statistics.

Litigation as a process to preserve legal remedies appears to be as robust as ever.  The modern difference is the traditional jury trial is no longer the final resolution of the process.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with us on several recent webinars.  Tom has also written several informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions we’re happy to share on the eDiscovery Daily blog.  Enjoy!

 

 

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published on Monday and part two was published on Tuesday.  Here’s the third part.

eDiscovery Considerations

So where does eDiscovery fall in this discussion? Where does it fall in the list of factors noted above which influence the decline of trials? How do we use eDiscovery to decide if a case should be settled?

First of course is the proportionality analysis that is so much a part of the current rules. Simply put, is a settlement offer reasonable within the scope of the monetary value of the litigation? If it is wildly disproportionate to the amounts in controversy, then you will need to decline the settlement offer. If it is reasonable, but not quite acceptable, then it is appropriate to make a counter-proposal.

Current eDiscovery tools for ECA and EDA can help make this determination as you are able to quickly and accurately review documents to assess damage claims and potential liability issues. Accurately identifying the documents to be handled should be a routine part of the Rule 26(f) conference and subsequent discovery plan and thus give you a confident assessment of the economic value of the case very early on.

Second is the timing of any proposed settlement. After the 26(f) conference and attendant issues have been resolved, have you received enough information to evaluate any offer or make a proposal? Or do you need more time to continue discovery and make such an assessment? This is where eDiscovery and ECA can be especially helpful since the FRCP encourage discovery and assessment of ESI at an early stage which can help in this decision.

Third, you must ask whether negotiations will be fruitful. All negotiations and any ultimate settlement require some degree of compromise by both parties and a critical factor in that process may be knowing when is the right time to negotiate.

If you have a sense in your case that emotions are running high and no negotiations are possible it may better to proceed with your ECA and simply wait until the case evolves more before attempting a settlement.

Fourth is the cost of eDiscovery which is the classic proportionality analysis. The  process of eDiscovery, and thus eventually trial, will be expensive and if that expense is more than the value of the case, settlement to avoid the ultimate costs of litigation is likely a better choice.

Remember that the review portion of the eDiscovery process is typically 2/3 of the eventual total cost so your initial costs of preservation, collection, processing and ECA can give you a good ballpark figure for your total eDiscovery costs. That figure, in turn, can drive an assessment of whether settlement negotiations are in order.

Fifth if the outcome of the case is unpredictable, that is if your case appears to be a toss-up, you may be better off with a settlement. Essentially this is a risk assessment of the ultimate cost of expenses, court fees and attorney fees if you don’t win.

Finally, consider the hard to define value of business goodwill. Sometimes a reputation in the business community as being a reasonable person has a value that can’t be quantified. Your legal action may be justified, even necessary, but extensive publicity about ongoing litigation may outweigh those factors.  When parties understand that a reputation in the business community has an inherent value, settlement may be a good choice.

We’ll publish Part 4 – Conclusions – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published yesterday.  Here’s the second part.

Modern Litigation History

First, let’s consider the rise in class action and MDL litigation.  In 1962, U.S. Supreme Court Chief Justice Earl Warren appointed a special committee to improve the efficiency of the legal system. Alfred P. Murrah, CJ of the 10th Circuit, was named chairman and his committee members came up with then revolutionary solutions that are still used today, ideas such as combining depositions and discovery and combining lawsuits involving similar complicated claims into a single case.

By 1967, backlogs in the Federal court system had been cleared and the committee discovered large numbers of similar, complex cases were common across the U.S. court system. They recommended that a permanent panel be set up to handle these types of matters and Congress created the JPML in 1968.

Now, by some estimates, as many as one in every seven civil lawsuits filed in federal court are or will become part of a multi district litigation and these cases involve as many as 60% of all plaintiffs in Federal civil suits.  Since a high number of these cases settle, the number of trial associated with these litigants is also dramatically lessened.

Second, since the 1986 U.S. Supreme Court decisions in Matsushita Electrical Industrial Co. v. Zenith Radio Corp.Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett, all of which encouraged the use of summary judgment, the increase in summary judgement motions has increased and seems clearly linked to the decrease in the number of trials.

Third, let’s consider that a high number of cases are now resolved by nonjudicial means, through alternative dispute resolution (ADR) methods such as compulsory mediation or arbitration clauses in contracts.

Fourth, changes in the FRCP which emphasize docket management have led many judges to become more active in management of the case before them.  FRCP 16 in particular was amended to require judges to monitor closely the management of cases (The Proposed FRCP Amendments Intended to Foster “Judicial Management”) and these changes have helped push early case resolution.

Finally, of course, the overall cost of litigation has risen dramatically. Bluntly put, the cost of making a wrong decision on whether to litigate wrong is getting more expensive. A seminal study of both federal and state court data in 2004 by DecisionSet found that making a wrong decision on litigating can cost a plaintiff about $43,000 and for defendants, who were less often wrong about going to trial, the cost could easily exceed $1 million.

We’ll publish Part 3 – eDiscovery Considerations – on Thursday.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

I have heard a great deal of anecdotal discussion lately about fewer and fewer cases going to trial, with an implied criticism that the cost of eDiscovery is somehow at the root of this phenomenon.  Indeed, the national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.

I decided to investigate both of these statements and was surprised by what I found. First, the decrease in cases going to trial is nothing new and in fact far pre-dates the eDiscovery changes to the FRCP.  Second, there are several clear reasons for this decline, all unrelated to any eDiscovery issues.

We’ll explore these reasons and other issues in this paper, as follows:

  1. Background
  2. Modern Litigation History
  3. eDiscovery Considerations
  4. Conclusions

Background

Each year the Administrative Office of the United States Courts (AOC) is required to provide a report of statistical information on the caseload of the federal courts for the 12-month period ending March 31.  According to AOC statistics, from 1962 through 1985, federal civil trials doubled, increasing every year. Trials then began declining in 1986 with a dramatic decline commencing in 1990. By 2006 there were only half the number of federal civil trials that there were in 1962 and since 2006, civil trials have continued to decline although at a much slower pace.

This phenomenon was so well known by the late 90’s that it was actually termed the “vanishing trial” by numerous commentators and led to many dire pronouncements about the future of the US legal system. Typical was a 2005 pronouncement by Chief Judge William G. Young of the U.S. District Court for the District of Massachusetts that “[t]he American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than on the criminal, but it is dying nonetheless.”  (What the Vanishing Trial Lawyer Means for In-House Counsel, and 5 Things They Can Do, Corporate Counsel, Oct. 14, 2016)

But the AOC report for 2017 also showed that the number of civil case filings was actually up 6%, a trend that has been present during the same period that the number of trials declined. Which clearly begs the question, if case filings continue to rise but trials continue to decline, what is going on in between those two events to cause the decline?

We’ll publish Part 2 – Modern Litigation History – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

eDiscovery for the Rest of Us: eDiscovery Best Practices, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO and Why Is TAR Like a Bag of M&M’s?. Now, Tom has written another terrific overview regarding eDiscovery for the smaller cases titled eDiscovery for the Rest of Us that we’re happy to share on the eDiscovery Daily blog (and will cover later this month in a webcast).  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part One was published last Tuesday, Part Two was published last Thursday and Part Three was published on Tuesday.  Here’s the final part, Part Four.

The EDna Challenge, 2016

In 2016, Craig Ball revisited the Edna challenge with a new set of parameters and a panel at the annual ILTA conference on which I was privileged to be a participant. The panel sought what Craig called “… a re-examination of EDna options circa 2016 on a bigger budget.” https://craigball.net/2016/04/15/edna-still-cheap-and-challenged/ .

In this new challenge, Edna had a Zip file on a thumb drive containing collected ESI in various formats: 10 custodians with ESI PSTs for six of them, four MBOX take outs from Gmail for the other four and a combination of  word processed documents, spreadsheets, PowerPoint documents, PDFs and a few scanned paper documents for all ten. She estimated the contents will unzip to about 10-12 GB with somewhere between 50,000 to 100, 000 documents total.

The goal was to conduct a paperless privilege and responsiveness review of the material in-house, sharing the task with an associate and legal assistant.  All staff had high-end, big screen desktop PC running Windows 8.1 with MS Office 2016 and Adobe Acrobat 11 Pro installed and the office’s network file server had ample space for the document collection.

The specific goals were:

  • Efficient workflow
  • Robust search
  • Ability to process relevant metadata
  • Simple document tagging and production identification
  • Effective tracked deduplication
  • Review may take up to 90 days, and the case may not conclude for up to two years.  All review, hosting and production costs must be borne by the budget.

Edna didn’t own a review tool and was willing to spend up to $5,000.00 total for software, vendor services, SaaS, etc.  Craig’s only restrictions on responses were “She won’t spend a penny more.  You can’t loan her your systems or software.  You can’t talk her out of it.  Pricing must mirror real-world availability, not a special deal.”

The good news was that the increase in budget accompanied by the shift to Web based solutions made a dramatic change in the responses. As one independent analyst noted, if kept to 3 months hosting, more than 70% of the companies he worked with could meet the challenge. Brad Jenkins, CEO of CloudNine (the host of this article) noted that the CloudNine software would allow Edna  “… access to a complete eDiscovery platform for processing, review, and production. She can upload her data for automated native processing, review her data in CloudNine’s integrated review tool, and produce her data in almost any format.”  All for under the limit of the challenge.

What’s Next?

The next step in the market of technology for the rest of us is growth of Internet based tools.  We are now seeing even more budget conscious solutions in a SaaS environment, solutions that work with common native format files where you host your own data with programs installed locally that are able to accommodate smaller data collections.

Some of these are well-established companies such as Relativity or Ipro Tech and others are newer companies such as CloudNine, Digital War Room, Logikcull, CS Disco and Everlaw. Some of them also incorporate some form of front-end analytics to significantly reduce the amount of data to be processed as well as TAR or predictive coding technology to enable faster review of documents.

Conclusion

But the ultimate solution is more than just knowing the rules, avoiding e-jargon and understanding the technology. In our estimation, it is the process not the technology.

We are not alone in this appraisal. Technologist John Martin once commented, “It’s the archer not the arrow.” Craig Ball says, “The key consideration is workflow”.

The fact is that technology is not the key to successful management of e-discovery in small cases. Rather, the single most effective way to keep eDiscovery costs low is to work with your opposition in a cooperative manner so you can stipulate to the use of low cost solutions.

We all must change to the new paradigm of working in the digital world. In the words of The Hon. Lee Rosenthal, former Chair of the Standing Committee of the Judicial Conference, “Litigation habits and customs learned in the days of paper must be revisited and revised. The culture of bench and bar must adjust.”

Craig Ball described it as “throwing down the gauntlet in the Edna Challenge when he said, So, how about it e-discovery industry? Can you divert your gaze from the golden calf long enough to see the future and recall the past? Sam Walton became the richest man of his era by selling to more for less. There’s a fast-growing need…and a huge emerging market.  The real Edna Challenge is waiting for the visionaries who will meet the need and serve this market.”

I think we’re very close to being there.

So, what do you think?  Do smaller litigation cases get shortchanged when it comes to eDiscovery technology?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

eDiscovery for the Rest of Us: eDiscovery Best Practices, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO and Why Is TAR Like a Bag of M&M’s?. Now, Tom has written another terrific overview regarding eDiscovery for the smaller cases titled eDiscovery for the Rest of Us that we’re happy to share on the eDiscovery Daily blog (and will cover later this month in a webcast).  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part One was published last Tuesday and Part Two was published last Thursday.  Here’s Part Three.

The Ernie Challenge

To answer the question of what to do for the cases larger than $1,000 but less than the major litigation cases, I drew up the “Ernie Challenge,” with advice from Craig Ball and DLA Piper senior counsel Browning Marean.  Named for my good friend Ernie Svenson, then a solo attorney with a general practice in New Orleans, it was posted on its own blog site at  https://theerniechallenge.wordpress.com/ .

Ernie is very tech savvy and often calls me when he has an EDD question involving what we call the “tweener” cases, those that fit in between the range covered by the Edna Challenge and mega cases suitable for the larger brand name products that dominate the EDD world.

The Ernie Challenge posited a case with roughly 1 terabyte of data to collect and a final amount of 200 gigabytes of data to review, most of that e-mail with the balance being various types of financial data. We also asked for some form of web review tool to work with the clients’ counsel and contract staff in a separate location.

There were several problems in meeting this challenge. First of course was pricing. Many, if not most, eDiscovery vendors at that time had their roots in the per unit commodity pricing days of photocopying and imaging. The standard practice was to charge hundreds of dollars per GB to process the data (which included culling, deduping, and de-nisting of the data set then preparing it for loading into a review software); then charging again — by both GB and user — on a monthly basis to review the data.

As a result, a simple license plus annual maintenance or a monthly subscription fee model for eDiscovery products didn’t exist. Instead, we had to sort through hundreds of products priced by varying and often widely divergent methods.

$X per GB for processing, $X per page for OCR, $X per document for near duplicate detection, $X per page for Bates numbers, $X per user and per GB to host and so on. Each is performed for different units with different unit pricing that can run from a penny to $500 per unit

For example, if a client paid for a forensically sound data collection of 800 GB (the size of the hard drive of one typical computer) and that data set eventually yields 200 GB of reviewable material, a typical eDiscovery company would charge $200 per GB for the processing ($160,000) plus $50 per month per GB ($10,000) and $90 per month per user for the hosting. If the case were to last 18 months, this cost alone would be just under $350,000.00. And if we accept the commonly cited statistic that the review process will account for 60-70% of the total project price, then we’re looking at a project cost that will eventually be close to $1,000,000.00.

For 200 GB of data!

To avoid the shock of those costs being immediately apparent, vendors often using pricing sheets in response to an eDiscovery RFP that looked like the menu in a Chinese restaurant … without English subtitles. And very few people had the experience, let alone the patience, to sort through those sheets. I myself was often called by clients to help them in that process because the separate bids they receive to an RFP don’t even appear to respond to the same proposal!

So, if your case was only worth $400,000 and after analysis and discussion with your client, you believe you cannot spend more than $10,000 for ESI processing and hosting services over the anticipated 18-month life of the case, you had a problem.

And if your case fell within the scope of the EDna Challenge, a small case with an eDiscovery budget of less than $1,000, you had an enormous problem.

By 2011, the question was paramount but we began to see some glimmer of hope. Craig Ball, in an interview at Legal Tech New York with Doug Austin ( https://cloudnine.com/eDiscoverydaily/electronic-discovery/eDiscovery-trends-craig-ball-of-craig-d-ball-pc-2/) said “…  I’m seeing some behind the firewall products, even desktop products, that are going to be able to allow lawyers and people with relatively little technical expertise to handle small and medium sized cases.”

And that is the essence of our Small Case Dilemma. Where are those programs? Are there really applications that attorneys can use themselves to process and host data? Is there really a way to process and review a couple of hundred GB of data for a reasonable price?

By 2012, the products Craig Ball mentioned had materialized. In the book we wrote as a follow up to our ABA TechShow session (Electronic Discovery for Small Cases (ABA, 2012), Bruce Olson and I listed several, including:

And at the same time, pricing began to drop substantially. Not only did unit pricing lower dramatically but we also began to see drop a trend away from the unit pricing model towards a flat fee or “all in” pricing. These sort of bundled flat rate prices, whether it be “per gigabyte,” “per drive,” or even “per case,” cover all the variables currently priced by the big boys as separate line items.

This development stemmed from two factors: (1) increased pricing competition among vendors and (2) newer cheaper technology. Faster processing products were being sold directly to corporate legal departments and law firms while the cost of hosting is being driven down by non-legal services such as Amazon and Microsoft. These developments give clients the option of using an in-house solution that cost far less than the prices stated above which then caused vendors to drop their prices accordingly.

We’ll publish Part 4 – The EDna Challenge, 2016, What’s Next and Conclusion – on Thursday.

So, what do you think?  Do smaller litigation cases get shortchanged when it comes to eDiscovery technology?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

eDiscovery for the Rest of Us: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO and Why Is TAR Like a Bag of M&M’s?. Now, Tom has written another terrific overview regarding eDiscovery for the smaller cases titled eDiscovery for the Rest of Us that we’re happy to share on the eDiscovery Daily blog (and will cover later this month in a webcast).  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part One was published on Tuesday.  Here’s Part Two.

eDiscovery: The Early Years

The first formalized changes to the Federal Rules of Civil Procedure were made in December of 2006 as the culmination of a period of debate and review that started in March 2000. Prior to the codified changes, there were several prominent lawsuits touching on the subject, most notably the matter popularly known as the Zubulake case. (Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003))

Throughout the case, the plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS’ own computer systems. Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court found that while the corporation’s counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS.

That case and the subsequent rule changes effectively forced civil litigants into a compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks that litigants then began to face because of improper management of ESI include spoliation of evidence, adverse inference, summary judgment, and sanctions. In some cases, such as Qualcomm Inc., v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008), attorneys were even brought before their state bar association to answer to charges of misconduct.

At roughly the same time, the EDRM was started to deliver leadership, standards, best practices, tools, guides, and test data sets to improve electronic discovery work flow processes.  The original EDRM project (it is now owned by Duke University School of Law) came up with the following chart to show a general work flow for eDiscovery projects.

The problems faced by these new rules was the multiplicity of data in electronic formats. Examples of the types of data included in e-discovery are not just documents but e-mail, databases, web sites, instant messaging and any other electronically stored information that could be relevant evidence in litigation. Also included in e-discovery is “raw data”, which Forensic Investigators can review for hidden evidence.

Litigators may review material from e-discovery in one of several formats: printed paper, PDF images (with or without searchable text) or as single- or multi-page TIFF images. The original file format is also known as the “native” format.

The EDna Challenge, 2009

In 2009, noted e-discovery consultant Craig Ball wrote a fascinating article in Law Technology News called  “E-Discovery for Everybody.”  That column came to be known as the “EDna Challenge” (Craig likes visual puns) because in it, Craig posited a solo practitioner named Edna with an e-discovery budget of $1,000 and asked how she could possibly perform any e-discovery on that amount.  He then solicited a wide-ranging number of answers from a variety of consultants and vendors and compiled them into the article, which is now posted on his website at http://www.craigball.com/E-Discovery%20for%20Everybody.pdf .

Craig asked people to suggest a program or programs with the following criteria:

  1. Preserve relevant metadata;
  2. Incorporate de-duplication, as feasible;
  3. Support robust search of Outlook mail and productivity formats;
  4. Allow for efficient workflow;
  5. Enable rudimentary redaction;
  6. Run well on most late-model personal computers; and
  7. Require no more than $1,000.00 in new software or hardware, though it’s fine to use fully-functional “free trial” software so long as you can access the data for the 2-3 year life of the case

The problem as Ball defined it still exists now:

“The vast majority of cases filed, developed and tried in the United States are not multimillion dollar dust ups between big companies. The evidence in modest cases is digital, too. Solo and small firm counsel like Edna need affordable, user-friendly tools designed for desktop eDiscovery — tools that preserve metadata, offer efficient workflow and ably handle the common file formats that account for nearly all of the ESI seen in day-to-day litigation. Using the tools and techniques described by my thoughtful colleagues, Edna will get the job done on time and under budget. The pieces are there, though the integration falls short.”

However, Craig did offer a little future optimism here:

“One possible bright spot was the emergence of hosted options. No one was sure the job could be begun–let alone completed–using SaaS on so tight a budget; but, there was enough mention of Saas to make it seem like a possibility, now or someday soon.”

And what about cases that fall between the Edna budget limit of $1,000 and major litigation like Pension Committee, a $550 million case arising out of the liquidation of hedge funds? (Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F.Supp.2d 456, 465 (S.D.N.Y.2010)?

We’ll publish Part 3 – The Ernie Challenge – next Tuesday.

So, what do you think?  Do smaller litigation cases get shortchanged when it comes to eDiscovery technology?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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