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eDiscovery Trends: Where Does the Money Go? RAND Provides Some Answers
 

The RAND Corporation, a nonprofit research and analysis institution recently published a new 159 page report related to understanding eDiscovery costs entitled Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery by Nicholas M. Pace and Laura Zakaras that has some interesting findings and recommendations.  To obtain either a paperback copy or download a free eBook of the report, click here.

For the study, the authors requested case-study data from eight Fortune 200 companies and obtained data for 57 large-volume eDiscovery productions (from both traditional lawsuits and regulatory investigations) as well as information from extensive interviews with key legal personnel from the participating companies.  Here are some of the key findings from the research:

  • Review Makes Up the Largest Percentage of eDiscovery Production Costs: By a whopping amount, the major cost component in their cases was the review of documents for relevance, responsiveness, and privilege (typically about 73 percent). Collection, on the other hand, only constituted about 8 percent of expenditures for the cases in the study, while processing costs constituted about 19 percent in the cases.  It costs about $14,000 to review each gigabyte and $20,000 in total production costs for each gigabyte (click here for a previous study on per gigabyte costs).  Review costs would have to be reduced by about 75% in order to make those costs comparable to processing, the next highest component.
  • Outside Counsel Makes Up the Largest Percentage of eDiscovery Expenditures: Again, by a whopping amount, the major cost component was expenditures for outside counsel services, which constituted about 70 percent of total eDiscovery production costs.  Vendor expenditures were around 26 percent.  Internal expenditures, even with adjustments made for underreporting, were generally around 4 percent of the total.  So, almost all eDiscovery expenditures are outsourced in one way or another.
  • If Conducted in the Traditional Manner, Review Costs Are Difficult to Reduce Significantly: Rates currently paid to “project attorneys during large-scale reviews in the US may well have bottomed out” and foreign review teams are often not a viable option due to “issues related to information security, oversight, maintaining attorney-client privilege, and logistics”.  Increasing the rate of review is also limited as, “[g]iven the trade-off between reading speed and comprehension…it is unrealistic to expect much room for improvement in the rates of unassisted human review”.  The study also notes that techniques for grouping documents, such as near-duplicate detection and clustering, while helpful, are “not the answer”.
  • Computer-Categorized Document Review Techniques May Be a Solution: Techniques such as predictive coding have the potential of reducing the review hours by about 75% with about the same level of consistency, resulting in review costs of less than $2,000 and total production costs of less than $7,000.  However, “lack of clear signals from the bench” that the techniques are defensible and lack of confidence by litigants that the techniques are reliable enough to reliably identify the majority of responsive documents and privileged documents are barriers to wide-scale adoption.

Not surprisingly, the recommendations included taking “the bold step of using, publicly and transparently, computer-categorized document review techniques” for large-scale eDiscovery efforts.

So, what do you think?  Are you surprised by the cost numbers?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

eDiscovery Case Law: Inadvertent Disclosure By Expert Waives Privilege
 

In Ceglia v. Zuckerberg, No. 10-CV-00569A(F), (W.D.N.Y. Apr. 19, 2012) (the case where Paul Ceglia is suing claiming 84% ownership of Facebook due to an alleged agreement he had with Mark Zuckerberg back in 2003), New York Magistrate Judge Leslie G. Foschio ruled that an information technology expert’s inadvertent disclosure waived the attorney-client privilege where the plaintiff could not show that it (1) took reasonable steps to prevent the disclosure of the e-mail and (2) took reasonable steps to rectify the error once it discovered the disclosure.

This case involved a dispute over the authenticity of a contract, and in seeking assistance to resolve pretrial matters, the plaintiff filed this motion to compel and asserted, among other things, that the attorney-client privilege should protect an e-mail that was inadvertently disclosed to the defendants. The court set forth the standard under Federal Evidence Rule 502(b) that applies to whether an inadvertent disclosure waives a privilege: “the privilege will not be waived if (1) the disclosure is inadvertent; (2) the privilege holder took reasonable steps to prevent disclosure; and (3) the privilege holder took reasonable steps to rectify the error.” Furthermore, “‘the burden is on the party claiming a communication is privileged” to establish that it met these requirements and that “the opposing party will not be unduly prejudiced by a protective order.”

Because the plaintiff failed to “personally supervise” the actions of the information technology expert he had hired, despite that he understandably hired such an expert to assist him while he was out of town, he “also failed to take reasonable steps to prevent the inadvertent disclosure” of the e-mail. Judge Foschio suggested that instead the defendants could have had the expert “first forward any documents” so that the plaintiff “could have reviewed the documents to ensure there w[ere] no extraneous, privileged materials attached.” If the plaintiff needed to oversee the expert in person, the court admonished, he “should have made himself present to do so.”

Judge Foschio also found that the plaintiff did not take reasonable steps to rectify the inadvertent disclosure. Noting that “the delay in seeking to remedy an inadvertent disclosure of privileged material is measured from the date the holder of the privilege discovers [ ] such disclosure,” and that “[g]enerally, a request for the return or destruction of inadvertently produced privileged materials within days after learning of the disclosure is required to sustain this second element,” the court pointed out that the plaintiff not only waited more than two months to try to rectify the error but also offered no explanation for such a lengthy delay.

Moreover, Judge Foschio stated, “Plaintiff has utterly failed to offer any explanation demonstrating that protecting belated protection of the . . . email will not be unduly prejudicial to Defendants.” Thus, because the plaintiff failed to establish any elements of the test required under the evidentiary rules, any privilege that may have attached to the disputed e-mail was waived.

Case Summary Source: Applied Discovery (free subscription required).

So, what do you think?  Should privilege have been waived or should the plaintiffs have been granted their request for the email to be returned?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

eDiscovery Trends: Wednesday LTWC 2012 Sessions
 

As noted yesterday, LegalTech West Coast 2012 (LTWC) is happening this week and eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  There’s still time to check out the show if you’re in the Los Angeles area with a number of sessions (both paid and free) available and 69 exhibitors providing information on their products and services, including (shameless plug warning!) my company, CloudNine Discovery, which just announced yesterday release of Version 11 of our linear review application, OnDemand®, and will be exhibiting at booth #216 along with our partners, First Digital Solutions.  Come by and say hi!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 21 hits.  More eDiscovery sessions happening!  Here are some of the sessions in the main conference tracks:

10:30 – 12:00 AM:

Information Governance and Information Management

With the volume of electronically stored information (ESI) growing exponentially and the challenges surrounding managing it, protecting it, and developing effective policies are essential. Social media, email, IMs, web pages, mobile devices and the cloud have made a big job even bigger. How much or how little should you collect? How aggressive should you be? How can you be certain your approach and results are defensible?

Speakers are: Richard E. Davis, JD, e-Discovery Solutions Architect & Founder, Litigation Logistics, LLC; Jack Halprin, Head of eDiscovery, Google; Dawson Horn, III, Senior Litigation Counsel, Tyco International and David Yerich, Director, eDiscovery, UHG Legal Department, United Health Group.

The GARP® Principles and eDiscovery

Attendees will hear from experts on the GARP Principles and eDiscovery as well as:

  • Understand the importance of proactive records management through the eight GARP® Principles
  • Revisit the GARP® Principles and learn how their role is magnified by recent case law
  • Learn what to do before eDiscovery: how GARP® precedes and complements the EDRM

Speakers are: Gordon J. Calhoun, Esq., Lewis Brisbois Bisgaard &, Smith LLP; Lorrie DeCoursey, Former Law Firm Administrator and John J. Isaza, Esq., Partner, Rimon P.C.  Moderator: David Baskin, Vice President of Product Management, Recommind.

1:30 – 3:00 PM:

Practical Handbook for Conducting International eDiscovery – Tips and Tricks

This session will present a truly international view on how to conduct global eDiscovery from a practical perspective, including developing proactive global document retention policies and assuring multi-jurisdictional compliance, best practices of global data preservation and collection, successful data migration across jurisdictions, navigating unique cultural and procedural challenges in various global regions, handling multi-lingual data sets as well as strategic positioning of hosting data centers.

Speakers are: Monique Altheim, Esq., CIPP, The Law Office of Monique Altheim; George I. Rudoy, Founder & CEO, Integrated Legal Technology, LLC and David Yerich, Director, eDiscovery, UHG Legal Department, United Health Group.

Litigation Preparedness Through Effective Data Governance

Be prepared. This panel will go through the benefits of data governance in your litigation preparedness and discuss benefits such as:

  • Auto-classification of legacy and newly created content
  • What is email management and is it ready for prime-time?
  • Review the court's findings on the complexities of ESI, including metadata, native formats, back-up tapes, mobile devices, and legacy technology
  • Key questions to ask before outsourcing ESI to the cloud

Speakers are: Lorrie DeCoursey, Former Law Firm Administrator; John J. Isaza, Esq., Partner, Rimon P.C. and Ayelette Robinson, Director – Knowledge Technology, Littler Mendelson.  Moderator: Derek Schueren, GM, Information Access and Governance, Recommind.

3:30 – 5:00 PM:

Managed and Accelerated Review

As costs for review soar and volumes of data multiply at an almost exponential rate, traditional linear review seems to be giving way to new technologies that will enable faster, better, more defensible eDiscovery results. How can you be assured that this new approach will catch everything that needs to be captured? Will human review become obsolete? What do you need to ask when considering this new technology? How should it be incorporated into your overall litigation strategy?

Speakers are: Matthew Miller, Manager, Fraud Investigation & Dispute Services, Ernst & Young; Robert Miller, Founder, Rise Advisory Group, LLC; Former Discovery Counsel, BP; David Sun, Discovery Project Manager, Google.

eDiscovery Circa 2015: Will Aggressive Preservation/Collection and Predictive Coding be Commonplace?

Who's holding back on Predictive Coding, clients or outside counsel? This session will discuss if aggressive preservation/collection of predictive coding will become commonplace as well as:

  • How aggressive should clients be with preservation/collection?
  • How to use effective searching, sampling, and targeting tools and techniques to not over-collect

Speakers are: Gordon J. Calhoun, Esq., Lewis Brisbois Bisgaard &, Smith LLP; Lorrie DeCoursey, Former Law Firm Administrator and Greg Chan, Senior Regional Litigation Technology Manager, Bingham McCutchen LLP.  Moderator: David Baskin, Vice President of Product Management, Recommind.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

So, what do you think?  Are you planning to attend LTWC this year?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

eDiscovery Trends: EDRM and Statistical Sampling
 

I’ve been proud to be a member of The Electronic Discovery Reference Model (EDRM) for the past six years (all but the first year) and I’m always keen to report on activities and accomplishments of the various working groups within EDRM.  Since this blog was founded, we’ve reported on 1) the unveiling of the EDRM Data Set, which has become a standard for useful eDiscovery test and demo data, 2) the EDRM Metrics Privilege Survey (which I helped draft), to collect typical volumes and percentages of privileged documents throughout the industry, 3) Model Code of Conduct which focuses on the ethical duties of eDiscovery service providers, and 4) the collaboration between EDRM and ARMA and subsequent joint Information Governance white paper.  EDRM’s latest announcement yesterday is a new guide, Statistical Sampling Applied to Electronic Discovery, which is now available for review and comment. 

As EDRM notes in their announcement, “The purpose of the guide is to provide guidance regarding the use of statistical sampling in e-discovery contexts. Most of the material is definitional and conceptual, and is intended for a broad audience. The later material and the accompanying spreadsheet provide additional information, particularly technical information, to people in e-discovery roles who become responsible for developing further expertise in this area.”

The Guide is comprised of six sections, as follows:

  1. Introduction: Includes basic concepts and definitions, alludes to mathematical techniques to be discussed in more detail in subsequent sections, identifies potential eDiscovery situations where sampling techniques may be useful and identifies areas not covered in this initial guide.
  2. Estimating Proportions within a Binary Population: Provides some common sense observations as to why sampling is useful, along with a straightforward explanation of statistical terminology and the interdependence of sample size, margin of error/confidence range and confidence level.
  3. Guidelines and Considerations: Provides guidelines for effective statistical sampling, such as cull prior to sampling, account for family relationships, simple vs. stratified random sampling and use of sampling in machine learning, among others.
  4. Additional Guidance on Statistical Theory: Covers mathematical concepts such as binomial distribution, hypergeometric distribution, and normal distribution.  Bring your mental “slide-rule”!
  5. Examples Using the Accompanying Excel Spreadsheet: Describes an attached workbook (EDRM Statistics Examples 20120427.xlsm) that contains six sheets that include a notes section as well as basic, observed and population normal approximation models and basic and observed binomial methods to assist in learning these different sampling methods.
  6. Validation Study: References a Daegis article that provides an empirical study of sampling in the eDiscovery context.  In addition to that article, consider reading our previous posts on determining an appropriate sample size to test your search, how to generate a random selection and a practical example to test your search using sampling.

Comments can be posted at any of the EDRM Statistical Sampling pages, or emailed to the group at mail@edrm.net.  As a big proponent of statistical sampling as an effective and cost-effective method for verifying results, I’m very interested to see where this guide goes and how people will use it.  BTW, EDRM’s Annual Kickoff Meeting is next week (May 16 and 17) in St. Paul, MN – it’s not too late to become a member and help shape the future of eDiscovery with other industry leaders!

So, what do you think?  Do you perform statistical sampling to verify results within your eDiscovery process?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

eDiscovery Best Practices: After Production, Your eDiscovery Obligations Are Not Necessarily Over
 

While a number of attorneys have yet to still embrace and fully understand eDiscovery best practices, most at least understand that there are (since 2006) Federal Rules of Civil Procedure that address discovery of electronically stored information (ESI) and (for most, but not all) similar rules at the state level.  More are learning to conduct an initial discovery conference (a.k.a., “meet and confer”) with opposing counsel to address eDiscovery requirements at the beginning of a case and more now not only understand the requirements to preserve potentially responsive data once it is clear that litigation is imminent but also how to conduct the review and production in a defensible manner.  However, as noted in this Texas Lawyer article, How to Prepare for E-Discovery Supplementation Obligations (written by Ross Cunningham and published in Law Technology News), an attorney’s eDiscovery obligations are not necessarily over after production.

As the author notes, “six months to a year into the process, most lawyers forget a key obligation. Under Texas and federal rules, all parties have an ongoing duty to supplement discovery responses.”  Failure to meet ongoing obligations to continue to preserve data and periodically update searches to retrieve new information could – like any other failure to meet obligations – result in sanctions.

The author has created a clever acronym to address a party’s supplementation obligations: PREPARE.  Here are the components of that acronym:

  • Preserve: It’s not just important to issue the hold correctly, but also to periodically follow up on hold notices to keep custodians on notice of their obligation to continue to preserve the data in question until they are instructed that they can release it (which is also very important to ensure that information no longer subject to hold doesn’t continue to be preserved outside of the organization’s document retention policies).  Sometimes, the hold may need to be expanded to additional custodians as they case continues.
  • Research: The more the attorney knows about the case and the client, the better he/she will be able to assess whether custodians are continuing to create discoverable information throughout the case and manage supplementary eDiscovery obligations accordingly.
  • Execute: As the author notes, “[t]his means drafting an e-discovery plan — and sticking to it.”  Up front planning to meet with the client to identify all sources of ESI will help ensure a complete preservation and collection process and also create a “road map” for supplemental discovery.  However, it’s also important to periodically re-assess the plan and update it where appropriate as new custodians may be identified (or even hired).
  • Proactive: Educating the client on what goes into an eDiscovery plan and best practices for conducting that plan, along with education on the consequences for failing to comply (including sanctions) will help ensure a smooth eDiscovery process.  After all, the client knows their data better than the attorney ever will.
  • Ally: By allying with trusted providers who are involved from the planning stages, that provider should be reliable to support the supplemental eDiscovery process.
  • Recalibrate: No matter how prepared you are, you cannot always anticipate every situation, so you need to be prepared to adjust (“recalibrate”) the plan when unforeseen occurrences happen.  When you have a well thought out eDiscovery plan that is executed well, courts tend to be more forgiving of anomalies.
  • Expectations: Setting expectations with opposing counsel during the initial discovery conference will help determine whether discoverable information will continue to be created over the course of discovery and hopefully obtain agreement as to how often supplemental searches will be performed.

Of course, the order of these items might not fit the actual order of execution.  Research, Execute, Proactive, Expectations, Ally, Preserve, Recalibrate might be more appropriate.  But, REPEAPR doesn’t make nearly as catchy an algorithm!

So, what do you think?  Have you dealt with supplementary eDiscovery in any of your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

eDiscovery Case Law: Court Orders eDiscovery Evidentiary Hearing When Parties Are Unable to Cooperate
 

A month ago, in Chura v. Delmar Gardens of Lenexa, Inc., No. 11-2090-CM-DJW, 2012 U.S. Dist. LEXIS 36893 (D. Kan. Mar. 20, 2012), Magistrate Judge David J. Waxse ordered an evidentiary hearing to discuss the sufficiency of the defendant’s search for ESI and format of production in response to the plaintiff’s motion to compel additional searching and production.

The case involved an employment dispute with claims of sexual harassment, hostile work environment and other employment-based causes of action.  At a status conference, the parties had agreed to create a list of search terms in an attempt to resolve outstanding eDiscovery issues. However, the parties were unable to reach a consensus, and the plaintiffs filed a motion to compel the defendant to search for and produce ESI.

The plaintiffs’ Request for Production 1 requested the defendant to produce information from 10 individuals identified by the defendants with knowledge of the facts concerning the allegations in the complaint or answer; however, the defendants’ reply merely referred the plaintiffs to the complaints and personnel files of the plaintiffs.  In their motion to compel, the plaintiffs asserted that the defendant “failed to produce their written complaints, any emails or phone logs, the investigation files, and their personnel files”.  The plaintiffs also claimed that the defendant also “failed to produce responsive documents that one would expect to find in this type of litigation”, such as:

  • “emails between Defendant’s managers and witnesses regarding Plaintiffs’ allegations or Defendant’s defenses”;
  • “notes by the human resource director from the investigation she conducted as a result of Plaintiffs’ complaints about the alleged harasser and the environment at the nursing facility where Plaintiffs worked”; and
  • “reports and emails to the corporate office regarding the complaints”.

The plaintiffs noted that, “It does not make any sense that in response to numerous complaints from employees about the work environment that a corporate human resources manager would be sent to investigate and not create a single document reporting her findings to Defendant’s corporate managers.”  They also suggested that the defendant had searched for the agreed-upon search terms in Microsoft Outlook on the alleged harasser’s computer only and argued that the defendant should run a forensically sound search of “all computers used by employees of the facility and corporate office who participated in or were involved in Defendant’s investigation of the allegations”.

While noting that it “cannot determine whether Defendant met its duty to both preserve relevant evidence” (based upon the limited information provided in the parties’ briefing), the Court found that “Defendant’s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents, raises justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiffs’ discovery requests.”  Therefore, the court set an evidentiary hearing for April 30, at which the defendant was instructed “to be prepared to present evidence on the following topics”:

  1. At the time of the initial charge of discrimination, what did Defendant’s system of creating and storing ESI consist of;
  2. When and how a litigation hold was instituted;
  3. What employees were notified of the litigation hold;
  4. What efforts were made to preserve ESI;
  5. What or whose computers or components of the computer systems were searched for responsive ESI;
  6. How the computers of computer information systems were searched (e.g., keyword searches, manual review, computer-assisted coding); and
  7. Who performed the searches.

So, what do you think?  Was the evidentiary hearing an appropriate next step?  Should more cases conduct eDiscovery evidentiary hearings when there are disputes?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

eDiscovery Best Practices: Tips for Saving Money in Litigation
 

A recent article on The National Law Journal (entitled Top 12 tips for saving money in litigation, authored by Damon W.D. Wright) had some good tips for – you guessed it – saving money during litigation.  I thought it would be worth discussing some of these, especially those that relate to eDiscovery cost savings practices.

  1. Conduct targeted preservation and collection: As the author notes, the duty to preserve is “not supposed to cause business operations to grind to a halt” and “the focus should be on the specific subject matter, evidence and likely witnesses in the case”.  If you promptly investigate and quickly identify those likely custodians and act to preserve their data, you’re probably satisfying your duty to preserve.  Just don’t lose sight of organization-wide processes that affect those likely witnesses, such as automated deletion policies, and suspend them for those witnesses, at least.  Don’t make the same mistake that EchoStar did.
  2. Calibrate the budget to the amount and importance of the case:  Ralph Losey, in his interview with eDiscovery Daily, spoke about bottom line proportional review and the idea of setting a budget based on the size and potential exposure of each case.  It simply doesn’t make sense to spend the same amount of effort in routine cases as it does for the “bet your company on the outcome” cases.
  3. File in a fast-moving court: Or pursue transfer if you’re the defendant.  Certainly, the longer a case drags out, the more expensive it is, and that includes for eDiscovery.
  4. Know the court: The author addresses this from a general perspective, but it could be important from an eDiscovery perspective, as a part of that.  Enough case law related to eDiscovery exists now that many judges have started to establish at least some track record with regard to issues such as spoliation, proportionality and sharing of eDiscovery costs.  It’s important to know how your judge views those issues.
  5. Have a key client liaison: Nobody knows the client better than the client themselves, so identifying the right person to serve as a liaison between the client and counsel can not only improve communications, but also streamline process and save costs.  As the author noted, the ideal client liaison will “know the organization well and have the authority, perseverance and communication skill needed to get the attention of others.”
  6. Select vendors and experts with care: The author notes that “you should always obtain price estimates (comparing ‘apples to apples’)” when considering eDiscovery vendors.  As a part of that, it’s important to make sure those comparisons are truly “apples to apples” and comprehensive.  Are per GB processing charges for the original (compressed) GB size or expanded?  Do hosting charges include per user fees or other ancillary charges or are they strictly per GB?  It’s important to make sure those distinctions are clear when comparing. 
  7. Try to get along with opposing counsel: While some are easier to get along with than others, the ability to cooperate with opposing counsel and discuss various discovery issues in the Fed.R.Civ.P. 26(f) conference (such as limits to discovery, form of production, privilege, etc.) will save considerable costs up front if the parties can agree.
  8. Allow opposing counsel to inspect and copy documents at their expense: Although most collections are predominantly in electronic form, there are still paper documents to be addressed and if you can make a non-privileged collection available for them to go through and select and copy the documents they want, that saves on your production costs.
  9. Limit e-mail production by custodians, search terms and date range: As the author noted and eDiscovery Daily previously noted, it’s not only a good idea for producing parties to limit production scope, but model orders to limit scope in patent cases are now being adopted in various jurisdictions, including Texas.
  10. Seek agreement on a narrowed privilege log and a no-waiver order: If you’re successful in #7 above, this should be part of what you try to negotiate.  It helps if both parties have similar concerns regarding the effort and cost to determine privilege and prepare a privilege log.
  11. Pursue cost-shifting for discovery: As yesterday’s post reflects, courts are more often expecting requesting parties to share in the discovery costs when the requests for information result in an undue burden or cost for the producing party.  And, as the author noted, the model order establishes specific parameters for patent cases and the expectation for requesting parties to pay for additional discovery.
  12. Stipulate to facts not in dispute: Why conduct discovery on facts not in dispute?  The author’s recommendation for early stipulations is a great idea for eliminating discovery in areas where it’s not necessary.

So, what do you think?  Did you get some good ideas?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Tuesday after the Easter holiday.  Have an eggs-cellent weekend!

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.

eDiscovery Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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.

eDiscovery History: A Look Back at Zubulake
 

Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212.  Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data.  Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case.  But, do you understand just how many groundbreaking opinions resulted from that case?  For those who aren’t aware, let’s take a look back.

The plaintiff, Laura Zubulake, filed suit against her former employer UBS Warburg, alleging gender discrimination, failure to promote, and retaliation. Southern District of New York Judge Shira Sheindlin's rulings in this case are the most often cited in the area of electronic discovery, and were issued prior to the 2006 amendments to the Federal Rules of Civil Procedure. That’s somewhat like establishing laws before the Ten Commandments!  The important opinions related to eDiscovery are commonly known as Zubulake I, Zubulake III, Zubulake IV and Zubulake V.  Here is a summary of each of those opinions:

Zubulake v. UBS Warburg, 217 F.R.D. 309 (Zubulake I) and Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III)

The plaintiff argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of email, but the plaintiff produced approximately 450 pages of email correspondence on her own. To address the discrepancy, the plaintiff requested for UBS to locate the documents that existed in backup tapes and other archiving media.

The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff, citing Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002). In May 2003, the court ruled stating that whether the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or inaccessible format". The court determined that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic media, as follows:

  1. Online data, including hard disks;
  2. Near-line data, including optical disks;
  3. Offline storage, such as magnetic tapes;
  4. Backup tapes;
  5. Fragmented, erased and damaged data.

The last two categories were considered inaccessible as they were not readily available and thus subject to cost-shifting. Discussing the Rowe decision, the court concluded that it needed modification and created a new seven factor balance test for cost-shifting:

  1. The extent to which the request is specifically tailored to discover relevant information;
  2. The availability of such information from other sources;
  3. The total cost of production, compared to the amount in controversy;
  4. The total cost of production, compared to the resources available to each party;
  5. The relative ability of each party to control costs and its incentive to do so;
  6. The importance of the issues at stake in the litigation; and
  7. The relative benefits to the parties of obtaining the information.

The defendant was ordered to produce, at its own expense, all responsive email existing on its servers, optical disks, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.

In July 2003, Zubulake III applied the cost-shifting test outlined in Zubulake I based on the sample recovery of data from five backup tapes.  After the results of the sample restoration, both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $19,003 for restoration but the estimated costs for production was $273,649, including attorney and paralegal review costs. After applying the seven factor test, it determined that the defendant should account for 75 percent of the restoration and searching costs, excluding attorney review costs.

Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV)

During the restoration effort, the parties discovered that some backup tapes were no longer available. The parties also concluded that relevant emails created after the initial proceedings had been deleted from UBS's email system and were only accessible on backup tapes. The plaintiff then sought an order requiring UBS to pay for the total costs of restoring the remaining backup tapes and also sought an adverse inference instruction against UBS and the costs for re-deposing some individuals required because of the destruction of evidence.

In October 2003, Judge Scheindlin found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, at the time, she concluded that the plaintiff failed to demonstrate that the lost evidence supported the adverse inference instruction claim. But, she did order the defendant to cover the costs as claimed by the plaintiff.

Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) (Zubulake V)

In July 2004, Judge Scheindlin ruled that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for adverse inference instruction sanctions, sought in Zubulake IV, due to the deleted evidence (emails and tapes) and inability to recover key documents during the course of the case.

The court also indicated that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate and preserve relevant information. In addressing the role of counsel in litigation, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched" by ensuring all relevant documents are discovered, retained, and produced and that litigators must guarantee that relevant documents are preserved by instituting a litigation hold on key data, and safeguarding archival media.

In the final instructions to the jury Judge Scheindlin instructed in part, "[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS." In addition, monetary sanctions were awarded to the plaintiff for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in the plaintiff’s favor on both claims awarding compensatory and punitive awards totaling $29.2 million.

Judge Scheindlin’s opinions in Zubulake, including definitions of accessible and inaccessible data, the seven factor balance test for cost shifting and definition of counsel’s obligation for preserving data, have been referenced in numerous cases since and have provided guidance to organizations preparing for litigation.  For any of you who may not have fully understood the significance of the case, I hope this look back was helpful.

So, what do you think?  Did you learn something new about Zubulake?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.

eDiscovery Best Practices: Who’s On Your Team?
 

When beginning a new eDiscovery project, a good place so start is to estimate the various tasks that will need to be performed and identify the type of personnel that will be needed. Every project is different and unique, so the requirements of each project must be assessed. As the project unfolds, the tasks required to complete it may change – not just in terms of tasks added, but also tasks removed if the work is deemed to be unnecessary.  So, it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Here are the types of roles that could be associated with a typical eDiscovery project:

Client Contact(s): It’s important for the client to be involved in the process, so the team should include at least one client representative that can serve as the link between the internal and external teams, providing guidance on internal company workings and contact personnel. Typically, the client contact is from the in-house legal department, usually either a paralegal (to handle routine tasks) or an attorney (to discuss issues and coordinate decision making).  When preservation and collection are required, the client contact(s) generally assist with litigation hold procedures, locating and collecting ESI, and conducting interviews of custodians. It is up to the client contact(s) to involve key managers and custodians as needed to provide guidance during this process.

IT Personnel: When responding to requests for ESI, let’s face it – you need your trusty geek.  Or geeks.  It’s important to include personnel who understand technical details about the client’s various computer systems and data.  Depending on the case, you need one or more individuals who understand any and all of the above: email and email archiving, storage of employee ESI, servers, clients, intranets, and databases. It’s typical for IT personnel in larger organizations to specialize; for example, to have one or more that is more knowledgeable about structured data (i.e. database programs) while others may understand and have access to email systems. 

IT personnel should be involved in all issues related to the technology for the responding party to increase efficiency and optimize the approach to each new case. For many corporations, this is typically one or more individuals already employed as a member of the IT staff.  It’s important for IT personnel to have at least a basic understanding of the legal processes and requirements of discovery.  If they don’t have that, it may be necessary to provide some training before a case arises or employ an outside consultant.

Forensic Collection Personnel: In some cases, it’s necessary to perform forensic analysis on various types of ESI (or at least collect the ESI in a forensic manner in the event that’s required). Examples of cases that may require forensic collection of electronic data include internal integrity investigations, situations where fraud and data deletion are suspected (such as trade secret cases) and government civil or criminal investigations. To enable the forensic specialist to testify (if required) to the work that was performed and exactly how it was done, companies often use a vendor not employed by the company or by the outside law firm.

See at least one critical team component missing?  Tomorrow, we’ll talk about the rest of the team.  Same bat time, same bat channel!

So, what do you think?  Do you estimate the team members needed for your project before it begins?  Please share any comments you might have or if you’d like to know more about a particular topic.

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.