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Electronic Discovery

eDiscovery Trends: Why Predictive Coding is a Hot Topic
 

Yesterday, we considered a recent article about the use of predictive coding in litigation by Judge Andrew Peck, United States magistrate judge for the Southern District of New York. The piece has prompted a lot of discussion in the profession. While most of the analysis centered on how much lawyers can rely on predictive coding technology in litigation, there were some deeper musings as well.

We all know the reasons why predictive coding is considered such a panacea, but it is easy to forget why it is needed and why the legal industry is still grappling with eDiscovery issues after so many years. Jason Baron, Director of Litigation at the U.S. National Archives and Records Administration, recently won the 2011 Emmett Leahy Award for excellence in records and information management. He took the opportunity to step back and consider why exactly the problem won’t go away. He believes that technology can help solve our problems, if applied intelligently. “We lawyers types remain stuck in a paradigm that too often relies on people and not automated technologies,” he said.

But he also warns that electronically stored data may soon overwhelm the profession. By now, readers of this blog are familiar with the dire and mind-boggling predictions about the volume of discoverable electronic data being created every day. Litigators are obviously concerned that new types of information and growing volumes of data will swamp the courts, but the problem could affect all aspects of modern life. “At the start of the second decade of the 21st century, we need to recognize that the time is now to prevent what I have termed the coming digital dark ages,” Baron said. “The ongoing and exponentially increasing explosion of information means that over the next several decades the world will be seeing records and information growth orders of magnitude greater than anything seen by humankind to date. We all need better ways to search through this information.”

As one of the leaders of the TREC Legal Track, a research experiment into searching large volumes of data more effectively, Baron has an intimate understanding of the challenges ahead, and he has serious concerns. “The paradox of our age is information overload followed by future inability to access anything of important. We cannot let that future happen” he said, talking to a roomful of records management experts and litigators. “We all need to be smarter in preventing this future dystopia.”

eDiscovery blogger Ralph Losey linked to both Judge Peck’s article and Jason’s speech, and expanded on those thoughts. Losey prefers to believe, as he wrote in a post called The Dawn of a Golden Age of Justice, that lawyers will not only survive, but thrive despite the explosion in information. “We must fight fire with fire by harnessing the new (Artificial Intelligence) capacities of computers,” he says. “If we boost our own intelligence and abilities with algorithmic agents we will be able to find the evidence we need in the trillions of documents implicated by even average disputes.”

So, what do you think? Will Artificial Intelligence in the hands of truth-seeking lawyers save us from information overload, or has the glut of electronic information already swamped the world? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: A Green Light for Predictive Coding?
 

There are a handful of judges whose pronouncements on anything eDiscovery-related are bound to get legal technologists talking. Judge Andrew Peck, United States magistrate judge for the Southern District of New York is one of them. His recent article, Search, Forward, published in Law Technology News, is one of the few judicial pronouncements on the use of predictive coding and has sparked a lively debate.

To date there is no reported case tackling the use of advanced computer-assisted search technology (“predictive coding” in the current vernacular) despite growing hype. Many litigators are hoping that judges will soon weigh in and give the profession some real guidance on the use of predictive coding in litigation. Peck says it will likely be a long time before a definitive statement come from the bench, but in the meantime his article provides perhaps the best insight into at least one judge’s thinking.

Judge Peck is probably best known in eDiscovery circles for the March 19, 2009 decision, William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009) (Peck, M.J.). In it, he called for "careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or 'keywords' to be used to produce emails or other electronically stored information".

Peck notes that lawyers are not eager to take the results of computer review before a judge and face possible rejection. However, he says those fears are misplaced, that admissibility is defined by content of a document, not how it was found. Peck also relies heavily on research we have discussed on this blog, including the TREC Legal Track, to argue that advanced search technology can provide defensible search methods.

While he stops short of green lighting the use of such technology, he does encourage lawyers in this direction. “Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval,” he writes. “In my opinion, computer-assisted coding should be used in those cases where it will help ‘secure the just, speedy, and inexpensive’ (Fed. R. Civ. P. 1) determination of cases in our e-discovery world.”

Silicon Valley consultant Mark Michels agrees with Peck’s article writing in Law Technology News that, “the key to (predictive coding’s) defensibility is upfront preparation to ensure that the applied tools and techniques are subject to thoughtful quality control during the review process.”

But other commenters are quick to point out the limitations of predictive coding. Ralph Losey expands on Peck’s argument, describing specific and defensible deployment of predictive coding (or Artificial Intelligence in Losey’s piece). He says predictive coding can speed up the process, but that the failure rate is still too high. Losey points out “the state of technology and law today still requires eyeballs on all ESI before it goes out the door and into the hands of the enemy,” he writes. “The negative consequences of disclosure of secrets, especially attorney-client privilege and work product privilege secrets, is simply too high.”

Judge Peck’s article is just one sign that thoughtful, technology-assisted review be deployed in litigation. Tomorrow, we will review some darker musings on the likelihood that predictive coding will save eDiscovery from the exploding universe of discoverable data.

So, what do you think? Is predictive coding ready for prime time?  Can lawyers confidently take results from new search technology before a judge without fear of rejection? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Reporting from the 2011 EDRM Mid-Year Meeting
 

The Electronic Discovery Reference Model (EDRM) Project, created to address the lack of standards and guidelines in the electronic discovery market, is now in its seventh year of operation.  Most references to the eDiscovery industry these days refer to the EDRM model as the standard representation of the eDiscovery life cycle.  I’m happy to say I’ve been a participating member for all but the first year of its existence and that CloudNine Discovery is a participating provider.  And, this blog has certainly noted some of the recent efforts and accomplishments within EDRM, including the recently announced information governance collaboration efforts between EDRM and ARMA and the announcement of the first draft of the Model Code of Conduct (MCoC) to focus on the ethical duties of eDiscovery service providers and their clients.

This week, the EDRM Mid-Year meeting has taken place in St. Paul, MN (giving some of us a chance to break out our winter clothes early!).  Twice a year, in May and October, eDiscovery professionals who are EDRM members meet to continue the process of working together on various standards projects.

I have joined the new Testing working group, which has been created to provide a methodology for risk evaluation through validation and verification of eDiscovery processes and technologies.  We spent time the past two days working to develop a survey of eDiscovery professionals to help us prioritize activities for testing methodology development and the beginning of a checklist for litigation hold notification processes and software.

As data set development is a key component of a good testing program, we also worked to identify additional file types and anomalies to add to the current EDRM Data Set project to aid in that testing.  Though the current data set, based on public domain Enron case data, has proven to be an excellent resource for testing eDiscovery software and processes, there are several test examples that could be added to ensure a more complete test set.  The Testing working group plans to finalize a first cut at additional data set needs in the next few weeks and will likely take an active role in locating or creating those additional test set examples.

Highlights of activities for other working groups in the Mid-Year meeting include:

  • Information Governance Reference Model (IGRM): Working on completing a guide for using the IGRM model as well as use cases and a toolkit for facilitating understanding of the model and how to implement it.
  • Evergreen: Has started work on an educational initiative, coordinating with the IGRM working group.
  • Model Code of Conduct: Has implemented changes resulting from comments to the working draft of the MCoC document and will be posting the final version of the code soon, they will then be implementing a mechanism to track and recognize the organizations that volunteer to adhere to the code.
  • Search: Working on a Sampling and Validation paper and expects to have a working draft ready for comment soon, they also plan to complete a Search Intent Framework and Frequently Asked Questions (FAQ) document by next year’s annual meeting.
  • XML: Has revamped the downloads page for downloading the XML schema, with version 1.1 of the schema currently available and a press release to announce version 2.0 of the schema coming soon.

These highlights are based on my notes, so, EDRM members, if I misstated or left out anything, please feel free to comment.

So, what do you think?  Has EDRM impacted how you manage eDiscovery?  If so, how?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Defendant Sanctioned for Abandonment and Sale of Server; Defendants' Counsel Unaware of Spoliation

An Illinois District Court ordered heavy sanctions against the defense for spoliation “willfully and in bad faith” of documents stored on a server, in a case revolving around damages sought for breach of loan agreements.

In United Cent. Bank v. Kanan Fashions, Inc., No. 10 C 331, 2011 WL 4396856 (N.D. Ill. Sept. 21, 2011), the defendants were found to have hidden and sold (or fabricated the sale of) a server which was subject to discovery. The defendants also misled their own counsel about their discovery procedures with regard to its preservation obligations and the sale of this crucial server. Accordingly, a magistrate judge ruled in favor of sanctions against the defendants based almost entirely on recommendations made in United Cent. Bank v. Kanan Fashions, Inc., No. 10 CV 331, 2011 WL 4396912 (N.D. Ill. Mar. 31, 2011):

  • Although the defendants’ counsel reminded them several times of their obligation to preserve evidence, and the defendants claimed at all times that they were taking the necessary steps to ensure a smooth and correct discovery process, they misled their own attorneys. In fact, the defendants proceeded to sell a server that contained information relevant to the suit.
  • The circumstances associated with the sale were extensive, involving the defendants defaulting on a loan on the warehouse in which the server was stored. When they made plans for foreclosure on the warehouse, they also made arrangements that the bank would purchase the lease on the server, originally held by a different lender, without informing their defense lawyers.
  • When defense counsel learned of the foreclosure and these arrangements, the defendants maintained that they could get access to the server as needed for discovery.
  • Several months later, the court ordered the defendants to retrieve either the server or a forensic copy of its contents for discovery. It was only a few days later that the defendants informed their counsel and the court that the server had been sold by the bank to a business in Dubai.
  • All of the above took place after the defendants had been repeatedly informed of the need to preserve evidence for discovery, and of their obligations with regard to ESI.
  • The circumstances of the sale of the server were so unusual that the court concluded that the defendants had, themselves, had a hand in the sale of the server to Dubai and the removal of the server from the court’s reach.
  • The magistrate judge found that defendants were solely responsible for the spoliation, having deliberately misled the court, the plaintiffs, and the defendant’s own counsel.
  • Defendants were ordered to pay sanctions that include reimbursement of the plaintiff for all costs related to the Motion for Sanctions. Defendants are also “barred from introducing any evidence regarding the data on the warehouse server”. The jury is to be “informed of the Defendants’ abandoning of the server” and instructed that the spoliation of the server “may be considered evidence that the server contained evidence unfavorable to Defendants’ position.”
  • The plaintiff’s request for sanctions against the defense counsel was dismissed by the magistrate judge.

So, what do you think? Have you ever been involved in a case where a similar instance of spoliation took place? 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 2
 

Yesterday, we covered a couple of ‘big-picture’ marketing mechanisms and techniques that work well in a law firm.  Here are a few more: 

  • Distribute a newsletter.  A newsletter is a great way to keep your services in the minds of litigators in your firm.  Many law firm litigation support professionals have told me that they would love to do a newsletter, but they don’t have the time.  It doesn’t have to be all that time-consuming!  Here are some tips for creating an effective newsletter that won’t take up too much of your time:
    • Keep articles short and to the point.  Attorneys won’t take the time to read long articles.  If you do write a long article, break it up and publish it across multiple issues (just like I’m doing with this blog series!).  If this is done well, your readers will look forward to your issues.
    • Use a template with a few consistent sections.  Have a section for “News and Announcements’, another for “Articles and Features”, another for “Client Highlights”.  Make sure there’s a section for contact information for you and your staff.
    • Maintain a list of “topic types” to include in your newsletter.  Examples of “topic types” are “How to’s”, “Creative ways to use your services”, “New technology trends”, “Significant case rulings”, “Stories about people in the firm”, and so on.
    • Ask others for articles.  Vendors and consultants you work with would probably love to get their names in front of your litigators, so ask them for articles.  Associates and paralegals in the firm may likewise want the exposure.
  • Create a web site or get some pages on the firm’s internal web site.  Consider these web pages:
    • A page with descriptions of your services.
    • A page with descriptions of the technology tools you make available.
    • A page that describes your staff with bios and location/contact information.
    • A page that describes the physical facilities you have, like training and review rooms.
    • A page with testimonials from attorneys for whom you’ve done good work, and descriptions of success stories
  • Find champions who have influence.  One of the best marketing techniques you can employ is to get people with influence in the firm to market for you.  Establish relationships with senior partners, department chairs, managing partners and rainmakers who support your department and have an interest in seeing you succeed.

Next week, we’ll cover a few more techniques and mechanisms for getting new 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.

Marketing a Litigation Support / eDiscovery Department within a Law Firm: Getting New Customers, Part 1
 

Your marketing efforts should be aimed at two goals: getting new customers and keeping existing customers.  We’ll start with marketing techniques for getting new customers.  We’ll cover ‘big-picture’ marketing activities – that is, marketing activities aimed at spreading the word about how your department can help litigators in the firm.  And, we’ll talk about one-on-one marketing to individual attorneys and litigation teams. 

‘Big-picture’ Marketing Mechanisms

Here are some marketing techniques and mechanisms that work well in a law firm environment, assuming they are done professionally and with your clients’ needs in mind:

  • Create descriptions of your services.  Describe what you do in writing.  Create simple, professional brochures that you can distribute to litigation department members.  Here are a few tips for creating effective service descriptions:
    • Identify the Problem.  Make sure that each description starts out by identifying the client’s problem or need that the service addresses.
    • Don’t include too much detail.  Attorneys are not likely to read a long document, and — more importantly – if your descriptions raise a few questions, that gives the reader a reason to contact you.
    • Categorize related services together.  This puts your services in a context that will be easier to understand.
  • Offer educational presentations.  There are three keys to making a presentation an effective marketing tool.  They are:
    • You need to get people to come!  Make sure you pick topics that are of interest to your audience and that you do good promotion of it.  One of the best ways to promote an educational presentation is to get buy-in from a senior attorney in the litigation department and have him/her promote it for you.
    • You need to give a good presentation.  Provide useful information.  Use terminology that your audience will know and examples that are relevant to them.  Make sure that the content is well organized.  Stay on topic and on schedule.  Use visuals and provide handouts.  And, make sure that the facility is comfortable (if your audience is not comfortable, they may have a hard time staying focused).
    • You need to do good follow-up.  Your work isn’t done when the presentation is over.  You need to follow-up with attendees.  Solicit feedback after the presentation and find out what other topics are of interest.  Send emails to thank individuals for attending.  Make phone calls to anyone who seemed particularly interested and find out what they are working on and how you might help.

Tomorrow, we’ll cover a few more techniques and mechanisms for getting new 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 Strategy: "Command" Model of eDiscovery Must Make Way for Collaboration

Last week’s article on Law Technology News summarizes the message put forward by several speakers at the fifth annual Colorado Association of Litigation Support Professionals E-Discovery Summit, held on October 7, 2011. In her article E-Discovery ‘Command’ Culture Must Collapse, Monica Bay discusses the old “command” style of eDiscovery, with a senior partner leading his “troops” like General George Patton – a model that summit speakers agree is “doomed to failure” – and reports on the findings put forward by judges and litigators that the time has come for true collaboration.

The highlights of the summit as far as a collaborative model of eDiscovery include thoughts by U.S. Magistrate Judge Michael Hegarty and Florida attorney William Hamilton, who say the time has come for adversarial, command-style eDiscovery to be replaced by a collaborative model, even with opponents, to result in a more effective discovery process.

Here is a brief summary of their opinions on the future of eDiscovery.

U.S. Magistrate Judge Michael Hegarty: Negotiation and Early Presentation of ESI are Key

Judge Michael Hegarty, of the U.S. District Court (Colorado), believes that minimal court intervention in discovery is best, but that mistakes are often made early on that cause discovery problems with respect to ESI.

  • He remarked on how common it is for litigators to neglect to mention discovery of electronic materials in early conferences, and how “detrimental” that can be to cases.
  • Judge Hegarty noted that a great deal of eDiscovery is unduly complicated because lawyers don’t understand the scope of what it is possible to do with electronic materials. “It’s easy for a party to say, ‘We can’t do that,'” he said, “but it’s hard to imagine that something can’t be done.” He noted the lack of understanding as a key source of friction, and finds that he often has to wade in and order parties to purchase software that will make it possible for them to conduct complete discovery.
  • The bottom line, according to Hegarty, is that the vast majority of cases never go to trial – surprisingly less than one percent of Colorado cases ever see a courtroom – and that’s the way it should be. “We can’t have discovery disputes sit around for months,” he said. It’s important to facilitate a communication process that includes ESI where appropriate in order to settle cases and move them along.

William Hamilton: Support Staff Make Like Possible for Attorneys

William Hamilton is a partner at Quarles and Brady in Tampa, Florida. He is also a professor at the University of Florida’s law school, Levin College, where he teaches “Electronic Discovery and Digital Evidence”. Hamilton is also dean of an online graduate certificate program in eDiscovery at Bryan University, and chair of the advisory board of the Association of Certified E-Discovery Specialists (ACEDS).

  • Hamilton’s speech focused heavily on the role of support staff, the people who “make life possible for attorneys”. He says paralegals and technology staff have a larger role to play in discovery than ever before, but must be careful not to cross over into unauthorized legal practice as they assist litigators.
  • He pointed out a need for change in the very culture of legal practice, where “[h]ierarchy culture disenfranchises everybody”. Bad decision making results from choices made by: “1) habit, 2) reputation, 3) haste, and 4) ‘pure command decisions”, he noted.
  • “Only 10 percent of lawyers ‘get’ e-discovery,” says Hamilton. It’s time for that to change, he says, as a new paradigm for discovery of electronic materials is born.

Learn more about the Colorado Association of Litigation Support Professionals E-Discovery Summit on the Association’s website or read the complete article on Hamilton and Hegarty’s presentations at Law Technology News.

So, what do you think? Is a top-down approach to eDiscovery still viable, or is there a real need for the process to change to a more collaborative and communicative one? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: U.S. Court Rules on ECPA Protection of Emails in the Cloud
 

An October 3 decision by the Ninth Circuit Court of Appeals offers new clarity in defining and protecting the eDiscovery rights of non-U.S. nationals using U.S. services online, by ruling that emails stored on servers located within the U.S. are protected by national laws on ESI.

In Suzlon Energy Ltd v. Microsoft Corporation, the court determined that holders of online accounts whose servers are located in the U.S., regardless of their location or nationality, are protected by the Electronic Communications Privacy Act of 1986, commonly known as the "ECPA." The ECPA ensures that the disclosure of emails by electronic communication service providers is limited and restricted to specific circumstances.

The Suzlon case originated out of an Australian case brought by an Indian company (Suzlon) against an Indian defendant, Rajagopalan Sridhar and put the Ninth Circuit Court's opinion on the reach of the ECPA to the test.

  • The plaintiff's legal counsel sought access to emails in the defendant's Hotmail account, stored on Microsoft servers located in the U.S.
  • The defendant did not provide consent for his emails to be used in discovery, nor did Microsoft consent to release the emails in question.
  • Microsoft's objection brought the case before the U.S. District Court for the Western District of Washington and later before the Ninth Circuit Court of Appeals, both of which agreed that the emails were protected by the ECPA.
  • Despite the plaintiff's and defendant's Indian nationality, and the fact that the suit in question was Australian, the U.S. court ruled in a manner that creates a powerful precedent for future lawsuits related to electronic communication providers whose servers are located in the U.S. As a result of this case, it has become clear that any users with accounts in U.S.-held cloud services will be subject to the same protections under the ECPA as a U.S. citizen.

So, what do you think? Does this ruling offer fair and sensible protect to U.S.-based companies and the users of their cloud services, or does it unnecessarily complicate the field of international eDiscovery? 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: The “Marketing Mind-Set”, Part 3
 

In the last two posts, we’ve talked about some “marketing mind-set” principles that are appropriate for a litigation support / eDiscovery department.  There’s just one more for you to consider:

In all of the marketing that you do, you need to stay focused on selling solutions to your clients’ problems rather than on selling your services.  Don’t promote products and services.  Promote solutions.

Always be thinking and talking about:

  • How you can make your clients more efficient.
  • How you can save your clients money.
  • How you can make your clients’ jobs easier.
  • How you can free up their time so they can focus on substantive work.

Always focus on the problem you can solve, or the task that you can make easier, or the costs that you can cut.  This will get their attention.  This will peak their interest.  This will be the deciding factor in their choice to involve you in a case. 

Selling solutions rather than services should be part of any “big picture” marketing that you do as well as part of one-on-one marketing that you do to individual attorneys and litigation teams in the firm.

The mind-set principles that we’ve covered in the past few posts are critical. Regardless of how many presentations and newsletters and brochures that you do… those activities are likely to fail if you haven’t approached them with these mind-set principles in mind. So, let me recap them here:

  1. Marketing is anything that you do to get a new customer of keep an existing customer.
  2. Whether you realize it or not, you are marketing all the time.  It is not an occasional, planned activity. It is a mode of operation.
  3. Think of your department as a stand-alone company, and think of the litigators in your firm as clients.
  4. Focus on selling solutions to your clients’ problems, not on selling services and products.

Be sure to look for posts in this series next week, when we start discussion of marketing mechanisms for getting new customers. 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: The “Marketing Mind-Set”, Part 2
 

Last week, we started talking about the right “marketing mind-set” for a litigation support / eDiscovery department.  Here are a couple more mind-set adjustments you may need to make:

  1. Stop thinking of your group as a department within a law firm.  Instead, think of your group as a “stand-alone business” – specifically, a service business.
  2. Stop thinking of the attorneys and paralegals in the firm as your co-workers.  Think of them as your clients.

There’s a really good reason for thinking like this:

It’s appropriate for a litigation support department.

Unlike other departments in the firm, attorneys can choose whether to use your department or not.  Unlike most other departments in the firm, you have competition.  Attorneys can’t go outside the firm to have invoices generated.  They have to use the firm’s accounting department.  They can, however, go outside the firm for litigation support services. They can turn to consultants and litigation support / eDiscovery service and product providers.  You need to take steps to ensure that your department is their first choice.

What does this mean – to operate as a stand alone business — in practice?  There are three key things you need to do:

  1. Stay focused on promoting your offerings to litigators in the firm – both litigators who are using your services and litigators who are not yet using your department.
  2. Make it very easy and painless for your clients to work with you.
  3. Stay focused on delivering premier customer service to your clients.

Over the next few weeks, I’m going to give you tips and suggestions in each of these areas.

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.