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Electronic Discovery

eDiscovery Best Practices: Cluster Documents for More Effective Review
 

With document review estimated to up to 80% of the total cost of the eDiscovery process and the amount of data in the world growing at an exponential rate, it’s no wonder that many firms are turning to technology to make the review process more efficient.  Whether using sophisticated searching capabilities of early case assessment (ECA) tools such as FirstPass®, powered by Venio FPR™ to filter collections more effectively or predictive coding techniques (as discussed in these two recent blog posts) to make the coding process more efficient, technology is playing an important role in saving review costs.  And, of course, review tools that manage the review process make review more efficient (like OnDemand®), simply by delivering documents efficiently and tracking review progress.

How the documents are organized for review can also make a big difference in the efficiency of review, not only saving costs, but also improving accuracy by assigning similar documents to the same reviewer.  This process of organizing documents with similar content into “clusters” (also known as “concepts”) helps each reviewer make quicker review decisions (if a single reviewer looks at one document to determine responsiveness and the next few documents are duplicates or mere variations of that first document, he or she can quickly “tag” most of those variations in the same manner or identify the duplicates).  It also promotes consistency by enabling the same reviewer to review all similar documents in a cluster (for example, you don’t get one reviewer marking a document as privileged while another reviewer fails to mark a copy of the that same document as such, leading to inconsistencies and potential inadvertent disclosures).  Reviewers are human and do make mistakes.

Clustering software such as Hot Neuron’s Clustify™ examines the text in your documents, determines which documents are related to each other, and groups them into clusters.  Clustering organizes the documents according to the structure that arises naturally, without preconceptions or query terms.  It labels each cluster with a set of keywords, providing a quick overview of the cluster.  It also identifies a “representative document” that can be used as a proxy for the cluster.

Examples of types of documents that can be organized into clusters:

  • Email Message Threads: Each message in the thread contains the conversation up to that point, so the ability to group those messages into a cluster enables the reviewer to quickly identify the email(s) containing the entire conversation, categorize those and possibly dismiss the rest as duplicative (if so instructed).
  • Document Versions: As “drafts” of documents are prepared, the content of each draft is similar to the previous version, so a review decision made on one version could be quickly applied to the rest of the versions.
  • Routine Reports: Sometimes, periodic reports are generated that may or may not be responsive – grouping those reports together in a cluster can enable a single reviewer to make that determination and quickly apply it to all documents in the cluster.
  • Published Documents: Have you ever published a file to Adobe PDF format?  Many of you have.  What you end up with is an exact copy of the original file (from Word, Excel or other application) in content, but different in format – hence, these documents won’t be identified as “dupes” based on a HASH value.  Clustering puts those documents together in a group so that the dupes can still be quickly identified and addressed.

Within the parameters of a review tool which manages the review process and delivers documents quickly and effectively for review, organizing documents into clusters can speed decision making during review, saving considerable time and review costs.

So, what do you think?  Have you used software to organize documents into clusters or concepts for more effective review?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: I work for CloudNine Discovery, which provides SaaS-based eDiscovery review applications FirstPass® (for early case assessment) and OnDemand® (for linear review and production).  CloudNine Discovery has an alliance with Hot Neuron and uses Clustify™ software to provide conceptual clustering and near-duplicate identification services for its clients.

eDiscovery Trends: Madoff Ponzi Scheme Case Documents May Be Turned Over to eData Rooms and Special Masters
 

The trustee responsible for coordinating the recovery of assets and data involved in Bernard L. (“Bernie”) Madoff's $65 billion Ponzi fraud investigation is presently seeking to secure special masters and create an "eData room" to ensure that the enormous volume of data accumulated during this worldwide investigation is collected and retained.  For more on the increasing use of special masters to facilitate eDiscovery cases, click here).

Almost three years after Madoff's arrest in December 2008, the massive fraud investigation has now spawned roughly 900 lawsuits worldwide involving 16,000 parties in 30 countries. The number of files and documents related to Madoff's Ponzi scheme is equally astronomical – and as perhaps the most significant fraud case of the decade – or even the century – these documents and lawsuits contain information vital as precedent for future criminal cases.

As a result, trustee Irving Picard has determined to collect all of the ESI related to these cases in a single eData room with the help of special masters that would be appointed by US bankruptcy Judge Burton Lifland.  eData rooms are web-based review platforms that can support centralized access of the ESI in question for all approved parties.

As the use of technology becomes more of a key issue in fraud cases, discovery of ESI associated with that technology is becoming ever more important in the practice of law, making a historic case like Madoff's vital as precedent. In November 2010, Picard created the first "e-discovery room", but the new "eData room" would be a much bigger project, containing all the ESI related in any way to Madoff's Ponzi scheme and making it available through a web-based platform for access and review. This new eData room, proposed in January 2011, would be limited to roughly 100,000 potentially responsive documents from 77 parties associated with a related case in which the defendant (J. Ezra Merkin) demanded production of every subpoenaed document in the initial bankruptcy proceeding as well as depositions in other proceedings.

The prospect of this eData room necessitates a complex series of discovery requests and confidentiality agreements, but Irving has already secured the tacit approval of all but 15 of the 16,000 parties, (large financial institutions, including UBS, Bank of America, Merrill Lynch International, Bank of New York Mellon and Sterling Equities, the investment group chaired by New York Mets owner Fred Wilpon) who objected to the prospect of pooling confidential documents where they could be accessed by thousands of parties including their business competitors. To address those concerns, Picard submitted a revised proposed order in September to exclude certain types of documents as confidential and give producing parties 60 days to object to the inclusion of “highly sensitive commercial information” in the eData room.  It will be interesting to see if the revisions pave the way for full acceptance to implement the eData room.

So, what do you think? Are eData rooms going to become commonplace in complex cases involving eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Special Masters Increasingly Used to Facilitate Complex eDiscovery Cases
 

Retired Washington DC superior court judge Richard Levie was recently appointed as a special master to oversee the eDiscovery demands of an ongoing high profile acquisition case. In the wake of several Department of Justice (DOJ) eDiscovery battles with Honeywell International in a recent high profile case, the DOJ and AT&T have jointly requested (and US district Judge Ellen Segal Huvelle appointed) Levie as special master to resolve any matters involving electronic evidence in the case focused on the $39 billion proposed acquisition of T-Mobile by AT&T.

The case is expected to benefit from the assistance of a special master because of the rapid pace as which it is expected to move forward: the case was filed on August 31 and the trial date is in February 2012 – very quickly for a case of this magnitude (and expected large data population) to begin in trial.

Due to the very fast-paced discovery schedule, the judge has set strict limits on the requests and submissions that both parties can make to the special master. Motions must be under 750 words and briefs 250 words or less – sheer torture for many attorneys(!).  Motions relating to discovery can only be submitted after a "substantive meet and confer" conference has been conducted between the parties.

This type of scenario is becoming more common in today's legal environment.  With as many as 123,000 pending civil suits in the DOJ caseload, it is becoming increasingly common for overloaded attorneys and judges to rely on the oversight provided by qualified special masters. These special masters are charged with acting as liaisons and moderators to quickly resolve discovery disputes over ESI, and to provide guidance that judges usually follow closely in making their decisions.

In the present case regarding the AT&T proposed merger with T-Mobile, special master Levie is expected to aid both parties in agreeing on eDiscovery terms, meeting compliance requirements and in finding resolution for any disputes.

So, what do you think? Have you been involved in a case where a special master coordinated eDiscovery procedures?  Did that speed up the discovery process? Please share any comments you might have or if you'd like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Keep Existing Customers, Part 1
 

Yesterday, we concluded our discussion about getting new customers.  Today, we begin discussing how to keep the customers you already have.

Getting repeat business from your clients is essential.  If every client only used your services once, at some point you’d be out of business.  You need to focus, therefore, on getting repeat business.  There are three things you should be doing: 

  1. Continuously remind your customers of the services that you offer.
  2. Look for new ways to help the customers that you have.
  3. Focus on providing premier customer service. An attorney will not use your services a second time if he or she was not happy with the service you provided the first time!

Let’s start with reminding your customers about the services that you offer.  Don’t let them forget that you are available to help them.  Many of the mechanisms we covered in the posts on Getting New Customers apply here too.  Here are a few suggestions:

  1. Make sure that all of the clients for whom you’ve done work are on your newsletter distribution list.
  2. Invite them to presentations that you’ve got scheduled.
  3. Contact them when you see they have a new case and ask how you can help.
  4. If you see an article that is relevant to a client, forward it with a personal note.
  5. Pick up the phone and call an attorney for whom you’ve done good work and ask how they are doing, what they are working on, and if you can help.
  6. Be visible.  Be everywhere.  Attend every firm event that you can.  Eat lunch in the firm dining room.  Walk around and schmooze.  Of all the points on this list, this one is the most important.  Everyone is familiar with the saying “out of sight, out of mind”.  Don’t be either!

Next week we’ll continue talking about ways to keep the customers that you have.  In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Getting New Customers, Part 5
 

Last week, we started talking about techniques and mechanisms for one-on-one marketing to individual attorneys and litigation teams in your firm.  Here are a few more tips:

  • Be enthusiastic about what you do.  It’s contagious and it will get others excited about your offerings.
  • Be prepared for objections.  If you’ve been working with attorneys for a while, you know what objections might be raised to using your services and products.  Be prepared to address them.  Some of the repeated objections I’ve encountered are:
    • “My client won’t pay for this”:  Be prepared with cost information and cost analyses and comparisons.  You know that what you do fosters efficiency and saves money in the long run, so have the information you need to demonstrate that.
    • “Only an attorney can do this”:  Be prepared to describe a process that will make them comfortable and ensure them that substantive decisions and answers remain in the hands of attorneys.  Have testimonials from other attorneys in the firm that rave about how well it worked for them
    • “I tried that once and it was a disaster”: You may face some attorneys who have had a prior bad experience with the services you offer.  The costs may have been out of hand, deadlines may have been missed, or a database may have not been useful.  Be prepared to discuss the mechanisms that are built into your approach for controlling costs and meeting deadlines.  Be prepared to discuss the planning and design steps that you take to ensure that a database will be useful.  Be prepared to discuss the approach you take to monitoring service providers to ensure that they live up to the commitments they make.
  • Provide references.  When you’ve done good work for someone, ask if they will serve as a reference, and have references on hand for potential new clients.
  • Make “Getting that first sale” your primary objective.  Don’t try to sell them the whole ball of wax.  Identify what they need right now and focus on that.  Focus on solving an immediate problem.  If you get your foot in the door with one task and you do a good job, getting them to buy off on future work will be easier.  And, don’t give them too many options unless that’s necessary.  You are the expert and you know the best options.  If you give them too many options, the decision will be harder to make.

So far, we’ve covered several mechanisms and techniques getting new customers.  Tomorrow we’ll start talking about techniques and mechanisms for keeping your existing customers. 

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

eDiscovery Trends: SEC Orders Its Staff to Cease Document Destruction Pending Policy Review
 

The U.S. Securities and Exchange Commission ("SEC") recently ordered all of its enforcement staff attorneys to cease the destruction of documents from investigative files after criticism that the SEC wrongfully destroyed thousands of documents associated with high profile enforcement matters, including investigations into Wall Street banks.  The National Archives and Records Administration (NARA) and the SEC's inspector general are currently examining whether the organization's document destruction policy requires revision. This cease order comes in the wake of information provided by a SEC whistleblower, indicating that the SEC wrongfully destroyed thousands of documents from preliminary investigations referred to as “MUIs” (Matters Under Inquiry).

  • In the past, the SEC would destroy documents pertaining to “MUIs” that had been closed, including cases that never developed into formal investigations as well as those that had been decided.
  • Some of these destroyed documents pertained, either directly or peripherally, to what would later become high profile cases. Among them were documents relevant to the Madoff Ponzi scheme and several Wall Street bank fraud investigations.
  • Although private companies routinely destroy documents and files that are closed or no longer in use, the SEC is subject to federal laws and regulations that require federal agencies to retain more records than a private firm. The SEC has been criticized by members of Congress of violating these laws and avoiding its legal compliance burden, especially where destroyed documents could have proven crucial in later legal cases.
  • As a result, the present controversy has forced the SEC to work with NARA to reconsider its document retention policies and to suspend, for now, destruction of files and documents. Parties are still arguing whether a requirement to retain all documentation distracts resources from the SEC's main objective of preventing, discovering and penalizing those involved in securities fraud.

So, what do you think? Has the SEC failed in a serious way to meet compliance standards, or is this controversy placing undue emphasis on documents that are unlikely to ever be needed? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Horrors! Does This Scare You?
 

Today is Halloween.  While we could try to “scare” you with the traditional “frights”, we’re an eDiscovery blog, so it seems appropriate to try to “scare” you in a different way.  Does this scare you?

Although the court declined to re-open the case, it found that defendant had committed discovery abuses, including failing to disclose relevant evidence and failing to issue a litigation hold; therefore, the court ordered the defendant to pay plaintiff an additional $250,000 over the previously agreed settlement amount.  The court further ordered that defendant had thirty days to furnish a copy of the court’s Memorandum Opinion and Order “to every Plaintiff in every lawsuit it has had proceeding against it, or is currently proceeding against it, for the past two years” and issued an additional $500,000 sanction to be “extinguished” upon a showing of compliance.

What about this?

Even though many (but not all) of the documents were recovered (most from backup tape), the court rejected the defendant’s argument that “there can be no spoliation finding because many documents were recovered” and eventually produced, stating: "The fact that technology permits the undoing of spoliation does not change at all the fact that spoliation has occurred."

Or this?

Then, in January of this year, Judge Grimm entered an order awarding a total of $1,049,850.04 in “attorney’s fees and costs associated with all discovery that would not have been un[der]taken but for Defendants' spoliation, as well as the briefings and hearings regarding Plaintiff’s Motion for Sanctions.”

How about this?

The court concluded based on case history that “emails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally” and found that the evidence that the defendant had authored these text messages was absent.

Scary, huh?  If the possibility of sanctions and changing court requirements keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Of course, if you really want to get into the spirit of Halloween, click here.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

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

When are text messages admissible in court? Which text messages qualify as evidence, and what does it take to prove authorship of a text message?

A recent opinion from the Pennsylvania Superior Court, Commonwealth v. Koch, No. 1669-MDA-2010, 2011 Pa. Super. LEXIS 2716 (Sept. 16, 2011), addresses these very issues in an old yet new way, perhaps setting the precedent for future cases and opening what seems to be a potential Pandora’s Box of obstacles to the use of text messages as legal evidence.

  • In Commonwealth v. Koch, a transcript of thirteen SMS text messages were submitted by the prosecution and admitted into evidence. Although these text messages had been sent from a cell phone owned by the defendant, defense objected to their admission on the grounds that no evidence substantiated the defendant’s authorship of the text messages in question.
  • In fact, witnesses had testified that other people had been seen using the cell phone. Several of the thirteen text messages referred to the defendant in the third person, which substantiated the defendant’s claim that she had not written or sent the text messages.
  • The court concluded based on case history that “emails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally” and found that the evidence that the defendant had authored these text messages was absent.
  • Ruling that the defendant’s ownership of the cell phone was not enough to prove that she had sent the messages in question, the court declared that parties seeking to introduce electronic materials, such as cell phone text messages and email, must be prepared to substantiate their claim of authorship with “circumstantial evidence” that corroborates the sender’s identity. That evidence may come in the form of testimony from the sender or recipient, testimony of witnesses to the creation of the correspondence, or even “contextual clues” in the message itself.

Where written correspondence may be subjected to questioning (e.g., signatures can be forged or letterhead copied), eDiscovery materials that clearly come from a given email account or cell phone source have been historically less open to scrutiny.  However, since cell phones and even email accounts may be shared (or hacked), this could leave room for argument, as in this case, that the correspondence in question did not originate with the party who appears to have sent it.

In one respect, applying the old standard of evidence to new ESI materials, such as text messages might make sense. On the other hand, doing so also opens the door for defense attorneys to use the same tactic to remove text messages and email correspondence from evidence – whether or not they are legitimately relevant in court – based on the extreme challenge of proving the issue of authorship.

So, what do you think? Was the court right in ruling against the admission of these text messages as evidence? Does this decision create more eDiscovery problems than it solves? Please share any comments you might have or if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Getting New Customers, Part 4
 

Successful marketing efforts have two components – ‘big picture’ marketing aimed at spreading the word about what you offer, and one-on-one marketing to individual attorneys and litigation teams.  In the last several posts in this series, we covered ‘big-picture’ marketing.  Now let’s move on to techniques and mechanisms for one-on-one marketing.  Here are some suggestions aimed at doing one-on-one marketing that work:

  • Know your audience.  Find out everything you can about people you will be marketing do.  Do your homework and find out about the cases they handle, the types of litigation they specialize in, the prior experience they have with litigation support and eDiscovery technology, the vendors they have used, the problems they’ve had, and their level of technical expertise.  You will always find it easier to sell to someone who you know something about.
  • Understand the dynamics of the litigation team:  Before a meeting with a litigation team, find out what you can about how the team works together, who the decision makers are, how decisions are made, and who – if anyone – may have objections to what you are trying to sell.  Know whether an individual you’ll be meeting with is a decision maker, a gate-keeper, someone with influence over the decision maker, or a saboteur.  Knowing who you are marketing to will set your expectations and help you prepare for a meeting aimed at getting a project.
  • Start building a good relationship.  Even if you haven’t worked with someone, you can start building a good relationship with them.  Here are some tips:
    • Always deliver what you say you can.  If you haven’t worked with someone yet, this may be delivering references, or information about your offerings.
    • Always be upfront about what you don’t know and what you can’t do.  But, fill in those gaps quickly and get back to them with information they need and contact information for others who can solve their problem.  Even if you can’t directly help them, you can become their “go-to” person for problems.  That will usually lead to business at some point.
    • Be incredibly responsive and punctual.  Never be even a minute late for a meeting and always respond quickly to phone calls and email.
    • Ask lots of questions.  This demonstrates that you have a genuine interest in your audience.

Check in next week for some more techniques and mechanisms for doing one-on-one marketing to individual attorneys and litigation teams in the firm. 

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Getting New Customers, Part 3
 

Last week, we covered several ‘big-picture’ marketing mechanisms and techniques that work well in a law firm.  There are just a few more I want to mention: 

  • Get on the firm’s New Matter distribution list and reach out to attorneys with new cases. Find out about every new case that comes in the door and do research on every new client.  Reach out to the attorneys handling each new case and remind them about how you can help.  Establish a routine for this (for example, create an email template that you can reuse).  This serves two purposes:  it reminds attorneys that you’re available to help, and it may get you involved earlier in a case.
  • Keep on top of what’s going on in the industry.  You need to be the expert in litigation support and eDiscovery trends, so attorneys turn to you for news and information.  If you become the “go-to” person, your level of business will almost certainly increase.  Here are some ways you can stay in-the-know:
    • Subscribe to trade publications, like eDiscovery Daily!  😉
    • Join litigation support and eDiscovery professional associations.
    • Attend trade shows
    • Join professional social networking groups
    • Attend webinars
    • Keep in touch with peers in the industry
    • Become part of the firm’s new-hire orientation program for new litigation associates and paralegals.  Educate new-hires about what you do and how you can help.
    • Network and schmooze!  Be everywhere.  Talk to everyone.  Make it a goal that everyone in the firm knows who you are, what you do, how you can help, and how to reach you.

So far, we’ve covered several mechanisms and techniques for big-picture marketing – that is, marketing that is aimed at spreading the word about what you so.  Tomorrow, we’ll start talking about techniques and mechanisms for doing one-on-one marketing to individual attorneys and litigation teams in the firm. 

In the meantime, we’d really like your input on how you’ve approached marketing in your firm.  How much marketing do you do, and what’s worked well for you?  Please share any comments you might have or let us know if you’d like to know more about a particular topic.