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Working Successfully with eDiscovery and Litigation Support Service Providers: Other Evaluation Criteria
 

In the last posts in this blog series, we talked about evaluating service provider pricing, quality, scalability and flexibility.  There are a few other things you may wish to look at as well, that may be especially significant for large, long-term projects or relationships.  Those things are:

  1. Litigation Experience:  Select a service provider that has litigation experience versus general business experience.   A non-litigation service provider that does scanning — for example — may be able to technically meet your requirements.  They are probably not, however, accustomed to the inflexible schedules and changing priorities that are commonplace in litigation work.
  2. Corporate Profile and Tenure:  For a large project, be sure to select a service provider that’s been around for a while and has a proven track record.  You want to be confident that the service provider that starts your project will be around to finish your project.
  3. Security and Confidentiality:  You want to ensure that your documents, data, and information are secure and kept confidential.  This means that you require a secure physical facility, secure systems, and appropriate confidentiality guidelines and agreements.
  4. SaaS Service Providers: For them, you need to evaluate the technology functionality and ensure that it includes the features you require, that those features are easy to access and to use, and that access, system reliability, system speed, and system security meet your requirements.
  5. Facility Location and Accessibility:  For many projects and many types of services, it won’t be necessary to spend time on the project site.   For other projects, that might not be the case.  For example, if a service provide is staffing a large document review project at its facility, the litigation team may need to spend time at the facility overseeing work and doing quality control reviews.  In such a case, the geographic location and the facility’s access to airports and hotels may be a consideration.

A lot goes into selecting the right service provider for a project, and it’s worth the time and effort to do a careful, thorough evaluation.  In the next posts in this series, we’ll discuss the vendor evaluation and selection process.

What has been your experience with evaluating and selecting service providers?  What evaluation criteria have you found to be most important?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: Forbes on the Rise of Predictive Coding
 

First the New York Times with an article about eDiscovery, now Forbes.  Who’s next, The Wall Street Journal?  😉

Forbes published a blog post entitled E-Discovery And the Rise of Predictive Coding a few days ago.  Written by Ben Kerschberg, Founder of Consero Group LLC, it gets into some legal issues and considerations regarding predictive coding that are interesting.  For some background on predictive coding, check out our December blog posts, here and here.

First, the author provides a very brief history of document review, starting with bankers boxes and WordPerfect and “[a]fter an interim phase best characterized by simple keyword searches and optical character recognition”, it evolved to predictive coding.  OK, that’s like saying that Gone with the Wind started with various suitors courting Scarlett O’Hara and after an interim phase best characterized by the Civil War, marriage and heartache, Rhett says to Scarlett, “Frankly, my dear, I don’t give a damn.”  A bit oversimplification of how review has evolved.

Nonetheless, the article gets into a couple of important legal issues raised by predictive coding.  They are:

  • Satisfying Reasonable Search Requirements: Whether counsel can utilize the benefits of predictive coding and still meet legal obligations to conduct a reasonable search for responsive documents under the federal rules.  The question is, what constitutes a reasonable search under Federal Rule 26(g)(1)(A), which requires that the responding attorney attest by signature that “with respect to a disclosure, it is complete and correct as of the time it is made”?
  • Protecting Privilege: Whether counsel can protect attorney-client privilege for their client when a privileged document is inadvertently disclosed.  Fed. Rule of. Evidence 502 provides that a court may order that a privilege or protection is not waived by disclosure if the disclosure was inadvertent and the holder of the privilege took reasonable steps to prevent disclosure.  Again, what’s reasonable?

The author concludes that the use of predictive coding is reasonable, because it a) makes document review more efficient by providing only those documents to the reviewer that have been selected by the algorithm; b) makes it more likely that responsive documents will be produced, saving time and resources; and c) refines relevant subsets for review, which can then be validated statistically.

So, what do you think?  Does predictive coding enable attorneys to satisfy these legal issues?   Is it reasonable?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Does Size Matter?
 

I admit it, with a title like “Does Size Matter?”, I’m looking for a few extra page views….  😉

I frequently get asked how big does an ESI collection need to be to benefit from eDiscovery technology.  In a recent case with one of my clients, the client had a fairly small collection – only about 4 GB.  But, when a judge ruled that they had to start conducting depositions in a week, they needed to review that data in a weekend.  Without FirstPass™, powered by Venio FPR™ to cull the data and OnDemand® to manage the linear review, they would not have been able to make that deadline.  So, they clearly benefited from the use of eDiscovery technology in that case.

But, if you’re not facing a tight deadline, how large does your collection need to be for the use of eDiscovery technology to provide benefits?

I recently conducted a webinar regarding the benefits of First Pass Review – aka Early Case Assessment, or a more accurate term (as George Socha points out regularly), Early Data Assessment.  One of the topics discussed in that webinar was the cost of review for each gigabyte (GB).  Extrapolated from an analysis conducted by Anne Kershaw a few years ago (and published in the Gartner report E-Discovery: Project Planning and Budgeting 2008-2011), here is a breakdown:

Estimated Cost to Review All Documents in a GB:

  • Pages per GB:                75,000
  • Pages per Document:      4
  • Documents Per GB:        18,750
  • Review Rate:                 50 documents per hour
  • Total Review Hours:       375
  • Reviewer Billing Rate:     $50 per hour

Total Cost to Review Each GB:      $18,750

Notes: The number of pages per GB can vary widely.  Page per GB estimates tend to range from 50,000 to 100,000 pages per GB, so 75,000 pages (18,750 documents) seems an appropriate average.  50 documents reviewed per hour is considered to be a fast review rate and $50 per hour is considered to be a bargain price.  eDiscovery Daily provided an earlier estimate of $16,650 per GB based on assumptions of 20,000 documents per GB and 60 documents reviewed per hour – the assumptions may change somewhat, but, either way, the cost for attorney review of each GB could be expected to range from at least $16,000 to $18,000, possibly more.

Advanced culling and searching capabilities of First Pass Review tools like FirstPass can enable you to cull out 70-80% of most collections as clearly non-responsive without having to conduct attorney review on those files.  If you have merely a 2 GB collection and assume the lowest review cost above of $16,000 per GB, the use of a First Pass Review tool to cull out 70% of the collection can save $22,400 in attorney review costs.  Is that worth it?

So, what do you think?  Do you use eDiscovery technology for only the really large cases or ALL cases?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Is Disclosure of Search Terms Required?
 

I read a terrific article a couple of days ago from the New York Law Journal via Law Technology News entitled Search Terms Are More Than Mere Words, that had some interesting takes about the disclosure of search terms in eDiscovery.  The article was written by David J. Kessler, Robert D. Owen, and Emily Johnston of Fulbright & Jaworski.  The primary emphasis of the article was with regard to the forced disclosure of search terms by courts.

In the age of “meet and confer”, it has become much more common for parties to agree to exchange search terms in a case to limit costs and increase transparency.  However, as the authors correctly note, search terms reflect counsel’s strategy for the case and, therefore, work product.  Their position is that courts should not force disclosure of search terms and that disclosure of terms is “not appropriate under the Federal Rules of Civil Procedure”.  The article provides a compelling argument as to why forced disclosure is not appropriate and provides some good case cites where courts have accepted or rejected requests to compel provision of search terms.  I won’t try to recap them all here – check out the article for more information.

So, should disclosure of search terms be generally required?  If not, what does that mean in terms of utilizing a defensible approach to searching?

Personally, I agree with the authors that forced disclosure of search terms is generally not appropriate, as it does reflect strategy and work product.  However, there is an obligation for each party to preserve, collect, review and produce all relevant materials to the best of their ability (that are not privileged, of course).  Searching is an integral part of that process.  And, the article does note that “chosen terms may come under scrutiny if there is a defect in the production”, though “[m]ere speculation or unfounded accusations” should not lead to a requirement to disclose search terms.

With that said, the biggest component of most eDiscovery collections today is email, and that email often reflects discussions between parties in the case.  In these cases, it’s much easier for opposing counsel to identify legitimate defects in the production because they have some of the same correspondence and documents and can often easily spot discrepancies in the production set.  If they identify legitimate omissions from the production, those omissions could cause the court to call into question your search procedures.  Therefore, it’s important to conduct a defensible approach to searching (such as the “STARR” approach I described in an earlier post) to be able to defend yourself if those questions arise.  Demonstrating a defensible approach to searching will offer the best chance to preserve your rights to protect your work product of search terms that reflect your case strategy.

So, what do you think?  Do you think that forced disclosure of search terms is appropriate?   Please share any comments you might have or if you’d like to know more about a particular topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Capacity, Scalability, and Flexibility
 

In the last couple of blogs in this series, we talked about evaluating service-provider pricing and quality.  The highest-quality, fairest-priced vendor is of no use to you, however, if they can’t get your work done by when you need it.  And, unfortunately, it’s not as straightforward as telling them what you have, what you need, and by when you need it.  Early in an ediscovery project, you are in a world of “unknowns”.  You are working with assumptions and best guesses, and the only thing you know for sure is that things will change.  The bottom line is, when you start talking to service providers, you probably won’t have good information. 

One thing, however, most likely won’t change:  your schedule.  Regardless of how big the job gets, you still have production deadlines and interim milestones to meet.  You, therefore, need a vendor that has the capacity to handle your work, that can scale up with the resources needed to deal with increased volume, and that can be flexible to adapt to changing needs and priorities.  What’s important today, may take a backseat to something more important that arises tomorrow.

The best way to deal with this is open communication with the service provider in the evaluation process.  Don’t limit your questions to computing power and capacity.  That’s just part of the picture, and that’s the easy part.  You want a service provider who will go the extra mile and work with you to get you what you need, when you need it.  The technology doesn’t do that. 

In your conversations with service providers, provide information on what you do know, what you are assuming, and what you are guessing.  Ask how changes in the volume or requirements will impact their ability to meet your schedule.  Ask about their ability to scale up.  Ask about their procedures for changing priorities in processing a collection.  Give them best and worst case scenarios and ask for commitments for either situation.  Ask about after-hours resources and their ability and willingness to run multiple shifts if that’s needed.  And ask for references — specifically for people who had last minute, dramatic changes to the scope of a project. 

What has been your experience with service providers meeting your schedule requirements?  Do you have good or bad experiences you can tell us about?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Best Practices: What is “Reduping?”
 

As emails are sent out to multiple custodians, deduplication (or “deduping”) has become a common practice to eliminate multiple copies of the same email or file from the review collection, saving considerable review costs and ensuring consistency by not having different reviewers apply different responsiveness or privilege determinations to the same file (e.g., one copy of a file designated as privileged while the other is not may cause a privileged file to slip into the production set).  Deduping can be performed either across custodians in a case or within each custodian.

Everyone who works in electronic discovery knows what “deduping” is.  But how many of you know what “reduping” is?  Here’s the answer:

“Reduping” is the process of re-introducing duplicates back into the population for production after completing review.  There are a couple of reasons why a producing party may want to “redupe” the collection after review:

  • Deduping Not Requested by Receiving Party: As opposing parties in many cases still don’t conduct a meet and confer or discuss specifications for production, they may not have discussed whether or not to include duplicates in the production set.  In those cases, the producing party may choose to produce the duplicates, giving the receiving party more files to review and driving up their costs.  The attitude of the producing party can be “hey, they didn’t specify, so we’ll give them more than they asked for.”
  • Receiving Party May Want to See Who Has Copies of Specific Files: Sometimes, the receiving party does request that “dupes” are identified, but only within custodians, not across them.  In those cases, it’s because they want to see who had a copy of a specific email or file.  However, the producing party still doesn’t want to review the duplicates (because of increasing costs and the possibility of inconsistent designations), so they review a deduped collection and then redupe after review is complete.

Many review applications support the capability for reduping.  For example, FirstPass™, powered by Venio FPR™, suppresses the duplicates from review, but applies the same tags to the duplicates of any files tagged during first pass review.  When it’s time to export the collection, to either move the potentially responsive files on to linear review (in a product like OnDemand®) or straight to production, the user can decide at that time whether or not to export the dupes.  Those dupes have the same designations as the primary copies, ensuring consistency in handling them downstream.

So, what do you think?  Does your review tool support “reduping”?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily Celebrates its “Sixmonthiversary”
 

Six months ago yesterday, eDiscovery Daily was launched.  At the time of our launch, we pondered whether we were crazy to commit to a daily blog (albeit restricted to business days).  But, I guess it’s a sign of how much the eDiscovery industry has grown in that there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.  And, so far, we haven’t missed a business day yet (knock on wood!).

Six months is 3.5 dog years, but I’m not sure what it is in blog years.  Nonetheless, we’ve learned to crawl, are walking pretty well and are getting ready to run!  We’ve more than doubled viewership since the first month, with our four biggest “hit count” days all coming in the last 5 weeks and have more than quadrupled our subscriber base during that time!

And, we have you to thank for our growth to date!  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, Ride the Lightning, Litigation Support Blog.com, Adventures in Document Review, ABA Journal, ABC's of E-Discovery, Above the Law, EDD: Issues, Law, and Solutions, 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!

For those of you who are relatively new to eDiscovery Daily, here are some posts back from the early days you may have missed.  Enjoy!

eDiscovery Searching 101: Don’t Get “Wild” with Wildcards

eDiscovery Searching 101: It's a Mistake to Ignore the Mistakes

First Pass Review: Of Your Opponent’s Data

eDiscovery Project Management: Applying Project Management Techniques to Electronic Discovery

eDiscovery Case Study: Term List Searching for Deadline Emergencies!

SaaS and eDiscovery: Load Your Own Data

eDiscovery Case Law: Read Inadvertent Email, Get Disqualified from Case

Lesson of the day: When you receive an inadvertently sent privileged email, read it and don’t disclose receipt of it, you can get kicked off the case.

In Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc, the court disqualified defendant’s in-house and outside counsel for their handling of a disputed privileged email that was inadvertently sent by the plaintiffs’ counsel to the defendant and shared with defendant’s outside counsel.  For more information regarding this case, check out this Law Technology News article.

When a group of employees left Arcadis to form a competing company, relations between the two soured quickly and led to litigation.  Just prior to filing their lawsuit, the plaintiffs’ attorney sent a strategy email to his clients, which contained an attachment that, according to the former employees, included “Plaintiffs’ privileged recitation of background and comments to and from legal counsel.” Unfortunately for the attorney (or maybe fortunately, as it turned out), the email system’s auto-complete function (which completes a saved email address as soon as you begin entering it) entered an old Arcadis email address for one of the employees, which wasn’t caught before sending. The email and the attachment went directly to Arcadis, which had been monitoring the plaintiffs’ email accounts since they resigned from the company.

Arcadis’ in-house counsel read the email and the attached document and apparently shared the email with their general counsel and Arcadis’ outside counsel (Gordon & Rees, LLP), neither of whom notified the plaintiffs’ attorney that they had received the email.  Arcadis’ counterclaim contained certain information that caused the plaintiffs to suspect that Arcadis and its counsel had reviewed their privileged communications, and Arcadis, when confronted, acknowledged that it had received the email and agreed to destroy all copies, but refused to identify who reviewed the e-mail.  Eventually, the plaintiffs filed a motion for a protective order to disqualify Arcadis’ counsel and prevent Arcadis from using the email or the attachment during the case, stipulating that attorneys are prohibited from using privileged material that they receive from an opposing party, and are under an ethical obligation to immediately notify the opposing party when such information is received.

Arcadis opposed the motion, arguing that in-house and outside counsel only conducted a cursory review of the email and attachment, and stated that it was not privileged because it was sent “unsolicited” to the plaintiff’s work e-mail, in which he had no reasonable expectation of privacy. Arcadis also argued because the information itself was not privileged and would be disclosed during discovery, the plaintiffs would suffer no irreparable harm. And, since there was no active litigation between the parties when Arcadis received the email, they argued that the rules of professional conduct did not apply.

The court rejected Arcadis’ arguments and ruled for the plaintiffs, disqualifying Arcadis’ outside counsel and the in-house counsel who reviewed the emails, also ruling that Arcadis’ general counsel must be “removed from all aspects of the day-to-day management of the case, including . . . making any substantive or strategic decisions with regard to the case.”.  Arcadis was also ordered to dismiss its counterclaim and the plaintiffs were awarded their costs and fees in connection with bringing the motion against Arcadis.

A copy of the order can be found here.

So, what do you think?  Have you ever been burned by an inadvertently sent email?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Deliberately Produce Wrong Cell Phone, Get Sanctioned
 

In Moreno v. Ostly, No. A127780, (Cal. Ct. App. Feb. 22, 2011), the California Court of Appeals affirmed the trial court’s award of monetary sanctions imposed against the plaintiff and her law firm in the amount of $13,500 for counsel and plaintiff’s discovery misconduct related to the preservation of text messages.

The plaintiff sued her former law firm employer alleging sexual harassment, retaliation and failure to pay back wages.  She claimed that a partner at the firm “forced himself on her sexually” on a daily basis and that she was fired when she notified the partner that she wished to sever the “intimate aspect of their relationship.”  In discovery, defendants sought copies of relevant e-mails and text messages between the plaintiff and the partner.  After the parties' meet and confer efforts failed, the court ordered the plaintiff to produce her personal computer and cell phone for inspection.  The inspection revealed that the cell phone produced was different from the one plaintiff had during her course of employment.  When questioned regarding the discrepancy, plaintiff’s counsel responded that the defendants would have to undertake further discovery efforts to determine what happened to the relevant equipment.  The plaintiff’s attorney conceded that many of the text messages on the prior phone had been used against the defendants before the EEOC, but had not been preserved prior to the disposal of the cell phone.

The defendants filed a motion for terminating and monetary sanctions or, in the alternative, a willful suppression of evidence jury instruction.  The trial court awarded monetary sanctions, finding the plaintiff and her counsel deliberately withheld the fact that the plaintiff failed to preserve her cell phone data, causing opposing counsel and the court to expend unnecessary resources.  The court found plaintiff’s counsel’s conduct willful and his explanation citing a conflict between the duty of loyalty to the client and the duty of candor to opposing counsel and the court “not very credible.”

The court of appeals concluded the trial court's award of monetary sanctions was supported by substantial evidence, and was well within the discretion of the court.

So, what do you think?  Are you aware of any other blatant examples of evasive discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: eDiscovery Case Law Update, by Littler Mendelson P.C.

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.

Working Successfully with eDiscovery and Litigation Support Service Providers: Evaluating Quality

Yesterday, we talked about evaluating service-provider pricing.  That, of course, is just part of the picture.  You need a service provider that can and does provide high-quality work that meets your expectations.

This can be hard to assess when you are evaluating a service provider with which you don’t have prior experience. And, unfortunately, it’s just not possible to know up-front if a service provider will do high-quality work on any given project.  You can, however, determine whether a service provider is likely to do high-quality work.  Here are some suggestions for doing so:

  1. Ask for references, and check them.  Ask for both end-user references and for people who were the point of contact with the service provider.  And ask for references for projects that were similar in size and scope to your project.  Later in this blog series, I’m going to give you some suggestions for doing an effective reference check.
  2. Look at their procedures and processes.  This is important for tasks that are labor intensive, and for tasks that are heavily technology based too.  Look at intake procedures, workflow procedures, and status-tracking procedures.
  3. Look at the type and level of quality control that is done.  Find out what is checked 100%, what is sampled, what triggers rework, what computer validation is done, and what is checked manually.
  4. Ask about staff qualifications, experience and training.
  5. Ask about project management.  A well-managed project will yield higher-quality results.  For certain types of projects, you might also require interviewing the project manager that will be assigned to your project.
  6. Evaluate the quality of your communication with the service provider during the evaluation process.  Did they understand your questions and your needs?  Were documents submitted to you (proposals and correspondence) clear and free of errors?  I might not eliminate a service provider from consideration for problems in this area, but I’d certainly question the care the service provider might take with my work if they didn’t take care in their communications with me.

What has been your experience with service provider work quality?  Do you have good or bad experiences you can tell us about?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.