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eDiscoveryDaily

Four Times Self-Collection Went Wrong

Per FRCP Rule 26(g), attorneys must sign discovery requests, responses, and objections. To the best of the attorney’s knowledge, the signature certifies three factors: 1) the document is compliant with existing rules and regulations; 2) it has no improper purpose such as slowing litigation; 3) it is not unreasonably burdensome to the producing party. This may become an issue if your client opts for self-collection. If counsel does not oversee or supervise the collection process, they have violated the rule and will be sanctioned accordingly. [1] During self-collection, custodians are responsible for identifying and gathering potentially relevant ESI on their own. When conducted carefully, self-collection may be adequate and cost-effective for small cases. However, there are several risks involved. The client may lose valuable metadata if their collection is done incorrectly. Additionally, they may purposely or accidentally omit incriminating evidence. Overall, if the self-collection process is not defensible and well-documented, the evidence will be rejected, and sanctions will follow. [2]

Self-Collection Cases and Sanctions

  • EEOC v. M1 1500 Group is a well-known age discrimination case in which two of the defendant’s employees collected ESI without any counsel supervision. Counsel signed the discovery response despite their hands-off approach. The plaintiffs moved to compel after counsel admitted to their negligence and the defendants produced less evidence than expected. Judge Matthewman granted the defendants a second chance but required both parties to collaborate in a robust meet and confer. The court also issued sanctions and advised counsel to seek the assistance of an ESI vendor. [3]
  • Over a year after the case ended, Green v. Blitz reopened once the court discovered that the defendant destroyed and omitted relevant email evidence. Only one employee oversaw the collection process, and he described himself in court as “computer illiterate.” After confirming the relevance of the missing emails, the court imposed civil contempt sanctions worth $250,000. The defendants also faced a $500,00 purging sanction unless they provided a copy of the order to all litigants who filed against them within the past two years. As the final sanction, Blitz USA was ordered to file a copy of the order when filing any lawsuit within the next five years. [4]
  • Nat’l Day Laborer Org. v. U.S. Immigration and Customs Enforcement Agency involved various government agencies who lacked a uniform collection plan. The agencies also failed to properly document their differing collection processes. Consequently, the agencies were sanctioned for relying too heavily on self-collection. They were also reprimanded for their undocumented and uncoordinated efforts.
  • In Suntrust Mortgage Inc. v. AIG United Guaranty Corp., the defendant chose not to seek the help of any forensic experts or ESI vendors. One employee was in charge of the identification and collection process. By copying and pasting different emails together, the employee tampered with the evidence before production. The fabrication resulted in court issued financial sanctions. [2]

Avoid self-collection pitfalls by utilizing CloudNine’s Collection Manager, a breakthrough extraction solution for Office 365 emails and OneDrive files. To learn more information or request a demo, visit: https://cloudnine.com/software/cloudnine-collection-manager/

 

[1] Gretchen E. Moore, “The Perils of Self-Collection of Electronically Stored Information,” The National Law Review, April 28, 2021.

[2] FindLaw Attorney Writers, “Self-Collection: The Good, the Bad, and the Ugly,” FindLaw, June 20, 2016.

[3] Kelly Twigger, “Beware of the Perils of Allowing Self-Collection,” eDiscovery Assistant, July 9, 2020.

[4] Peter Vogel, “Another Trap is Sprung: The Danger of Self-Collection,” Foley & Lardner LLP, June 20, 2011.

How to Redact Without Regrets

Safeguarding a client’s personal information is an important responsibility. Redactions protect client privacy by obscuring confidential, privileged, non-responsive, and personally identifiable information from relevant documents. [1] Though important, redactions are a time-consuming part of the review process, especially when done manually. To save time, legal teams should conduct an initial assessment of what, when, and where redactions should be placed. As a first step, examine the nature of the case and discovery. In other words, identify the tools and file types that will be included in the review process. When considering which redaction tool to use, refer back to the guidelines set by the ESI protocol and protective order. The sophistication of both parties can also impact the accessibility of digital redaction technology. [2] Overall, redactions should not be taken lightly. Mistakes often embarrass or endanger the client’s safety. Other ramifications may include waived attorney-client privilege, malpractice lawsuits, suspension, and even disbarment.

Redaction Failures

  • In January 2019, Paul Manafort’s pleadings were filed as PDF documents containing portions of blacked-out text. By copying and pasting the PDF into a different text document, people were able to see the improperly hidden text. Consequently, the court learned of Manafort’s exchanges with Konstantin Kilimnik, an alleged Russian intelligence agent.
  • In a 2018 legal battle with an app called Six4Three, Facebook’s lawyers failed to obscure sensitive information from a PDF file. The mistake revealed that Facebook considered giving user data to Six4Three in exchange for financial compensation.
  • In August 2018, the United States Postal Service was tasked with producing a civilian personnel file of Congresswoman Abigail Spanberger. In compliance with the Freedom of Information Act, USPS successfully produced the file but failed to redact any of her personal information. Information disclosed in the file included Spanberger’s SF-86 security clearance application, social security number, and responses to personal background questions. [3]

Redaction Mistakes to Avoid

  • Don’t simply change the font to white. Though the words look like they have disappeared, they can be seen when highlighted.
  • Don’t hide black text with black highlights. Similar to the white font problem, black highlight looks like it hides black text. However, the information will show when a mouse is clicked and dragged over it.
  • Don’t forget about the metadata! Metadata from word-processing programs contains information about text changes and deletions. Unless purged from the document, this information can be found even after the file is re-saved or converted to a PDF.
  • Don’t rely on Adobe Acrobat edits to black-out or remove text. These edits can be removed if the information is copied and pasted into a different document. [4]

 

[1] Rachel Teisch, “Death, Taxes, and Redaction Blunders,” EDRM, February 4, 2022.

[2] Clara Skorstad, “Right on Redactions,” JD Supra, November 4, 2020.

[3] “Getting Redactions Right Matters Now More Than Ever,” Warner Norcross + Judd, November 12, 2019.

[4] “Best Practices: Redaction of Information,” United States District Court, Southern District of Alabama.

Emerge From Data Chaos With eDiscovery Built For Today’s Data

Did you know in 2020 alone, the average person created 1.7 MB of data every second? (source).  Now consider this in the context of your latest eDiscovery case:  from cell phone forensics to computer user activity, the amount of digital documents to review is massive.  For example, here’s a glimpse of the daily counts of electronically stored information (ESI) including traditional and modern data types:

  • 4 billion emails (source)
  • 7 billion text messages (source)
  • 100 billion WhatsApp messages (source)
  • 4 billion Snapchat photo messages (source)

And, this doesn’t even include other traditional data types like documents or spreadsheets. Nor does it count modern data types like computer user activity, geolocation tracking, corporate chat applications, financial transactions, or social media posts.  While eDiscovery review platforms are designed to process traditional data types, you need a better, more efficient way to analyze the sheer volume of digital discovery types.

To provide a comprehensive view of all data types, CloudNine has introduced a modern data review experience to enable the analysis of existing and emerging data types, from a single eDiscovery solution platform.

Synergize eDiscovery of Today’s Data with CloudNine

Current eDiscovery review platforms were developed to support traditional data types like emails, Word documents, spreadsheets, and PowerPoint as evidence in litigation. The problem is they rarely provide the context needed to tell the whole story because they miss potentially relevant data found on mobile devices and corporate chat applications like Microsoft Teams or Slack. 

Without this nuanced data, you don’t have the ability to show behaviors, actions, or communication across different platforms, making it more challenging to prove your case as it’s very difficult to show context if you’re working exclusively with traditional file types.

Using Cellebrite UFED, a digital tool for extracting data from mobile devices, we can quickly collect cell phone data and inject it directly into the document review platform.

In addition, CloudNine’s modern data review platform can create timelines to organize relevant data in a linear outline to tell a story from beginning to end. Combining this with the ability to track digital conversations across multiple platforms, you’ll have better insight into:

  • How subjects were behaving
  • What they were doing
  • Where they were going
  • Who and when they were communicating with

CloudNine’s modern data solution expands your ability to understand the whole story in ways your competition can’t. The ability to collect and review this type of data allows you to better understand the facts surrounding your litigation, applying context so you’re able to tell the whole story.

Our solution for today’s data is suitable for both large and small data sets. It’s robust enough to handle the largest cases with extremely large data sets while remaining nimble to give attorneys the ability to view data quickly and easily on much smaller cases.

Regardless of the case or file types your team is reviewing, your eDiscovery team can get to the truth much faster.

Take the Rediscovery Out of Your eDiscovery: CloudNine’s ESI Analyst is the Perfect Complement to Enhance CloudNine Review

While CloudNine Review brings a fast, secure and easy-to-use platform to load and export data quickly and efficiently, the addition of a modern data solution adds a new layer of context and complexity to your litigation.

Now, when you receive your data, you can upload all the data sources into our modern data platform, perform eDiscovery and then import your modern and traditional data directly to CloudNine Review for a simplified and streamlined review.

Most legal firms and LSPs are forced to shoehorn modern data into traditional legal document review platforms. This can lead to confusion about the importance of what role specific text messages play in the story.

However, by letting you review every type of data more accurately, you get a more efficient solution that addresses both traditional and modern data, providing more insight and clarity into the factors behind the litigation.

A perfect example of this is the ability to analyze financial data and computer user activity. While collecting and reviewing financial data means you can track transactions and payments easier, tracking computer activity through registry files or event logs lets you see actions taking place on a digital level.

For example, if an employee copies a confidential document onto a thumb drive and walks out the door with it, you’ll be able to see that action in the data records.

As an organization, we are committed to evolving in the same way eDiscovery evolves. Stay up-to-date on the latest CloudNine updates by signing up to receive our latest eDiscovery news delivered to your inbox.

Don’t Fall Prey To Ingestion Congestion: The Ease of Integration and Deployment with CloudNine

Simple Deployment:  While the technical aspects of integrating CloudNine’s modern eDiscovery review platform is incredibly easy, the important thing to know is how simple it is to deploy the solution for your staff. Training for your administrators to operate the platform can be completed in an hour while training your review team for a specific case takes as little as 15-30 minutes.

Searching and Batching: By creating a series of searches based on specific keywords or phrases, you can pull data batches to assign to your team so they can review and add custom tags for relevant data. This is a valuable tool for anyone using this modern data eDiscovery solution, whether you have the resources to employ a litigation-support team or if you’re a smaller office with only one or two attorneys.

Superior Support:  If there’s any questions or problems, support is just a phone call away. If you don’t know how to use a particular feature or tool, we can schedule a quick online training session and walk you through the process. Plus, there are over a hundred resource articles in our library to help you learn how to better use CloudNine’s solution.

By offering solutions that empower you to collect, review and analyze both traditional and modern data types, you can streamline your eDiscovery process and capture information that tells the whole story through different platforms.

To complement your existing eDiscovery solution and combine both traditional and modern data types into a more complete narrative, contact CloudNine to find out how we can seamlessly fold our self-service, SaaS application designed for all data types into your eDiscovery process.

Do’s and Don’ts of Text Message Discovery

Discovery requests of the past had little reason to include text messages as a form of evidence. Emails were the primary concern since they held the bulk (if not all) of business communications. Finding relevant corporate emails was rather simple. Corporate servers stored the data, regardless of how the email was sent or received (via mobile device or work computer). Consequently, companies were able to locate ESI without the assistance of forensic experts. As text messages became the preferred method for informal communications, their usage in the business world also grew. [1] In 2015, research showed that 80% of professionals conducted business communications through texts. This percentage has likely skyrocketed in recent years due to the shift to remote work during the pandemic. Today, some industry experts refer to texts as the new email, citing them as the main source of relevant information. Litigants, however, must remember that phone carriers aren’t obligated to permanently preserve message records. Unless subpoenaed, they may refuse to participate in discovery investigations. Instead of depending on carriers, text messages must be preserved and obtained from the device itself. [2]

Text Message Spoliation Sanctions

  • Stinson v. New York City: The plaintiffs in this suit alleged that the NYPD was issuing summonses without probable cause. The court imposed an adverse inference sanction against New York City for failing to preserve and collect relevant text evidence.
  • Timms v. LZM, LLC: Plaintiff Heather Timms sued her employer for failing to compensate her overtime hours, but she removed text messages and a messaging app before submitting her cell phone as evidence. Consequently, attorney fees were issued, and the case was terminated.
  • First Fin. Sec. Inc. v. Lee: FFS, an insurance broker, requested the production of all written communication after the defendants violated their contract by sharing company information after termination. After failing to produce text message evidence, the Court arranged attorney fees and an adverse inference sanction against the defendant. [3]

Text Message Do’s

  • Develop policies about business messaging. Some companies may go as far as banning all employees from discussing work affairs over text. Others companies may impose regulations on who and how work messages are sent. If your company permits any kind of text-based business communications, set up retention policies and collection plans. Through the policies, ensure that the data is preserved if needed for litigation.
  • Once your retention policies are established, consistently enforce them. Update your employees on any changes that the policies undergo. Poorly enforced policies are no better (and sometimes worse) than having no policy at all.
  • Train employees on how to appropriately send work texts. Also, inform them of the risks associated with deleting potentially relevant information.
  • Issue litigation holds when anticipating litigation. In the litigation hold letter, remind employees to disable any automated deletion features. Companies should also specify if message preservation is required for company devices, personal devices, or both. [4]

Text Message Don’ts

  • Rely on screenshots alone as a way to create records. Text messages can be easily manipulated, so screenshots are not enough to validate their authenticity. Find additional means of proof such as witness or expert testimony. As a better alternative, companies can find a discovery solution to produce the evidence through native or near-native files.
  • Rely on phone carriers to preserve the messages. As stated above, carriers will only store the data for short periods of time. Take ownership of your preservation duties by establishing retention policies in advance.
  • Delete messages or conversation histories when anticipating litigation.
  • Manually preserve text messages by copying and pasting them into other sources. Manual efforts include forwarding text messages to email and exporting texts to Excel files. These methods are time-consuming and harder to authenticate in court. [5]

 

[1] Nicole Allen, “Text Messages: Preservation Lessons for Mobile E-discovery,” LitSmart E-Discovery, December 20, 2017.

[2] Bill Kammer, “In eDiscovery, Texts are the New Email,” SDCBA Blawg 401, January 7, 2020.

[3] Zac Muir, “Failure to Produce Text Messages in eDiscovery,” Microfocus, October 16, 2012.

[4] Anthony J. Diana, Catherine Bernard, and Therese Craparo, “Managing The Risks And Costs Of Text Messaging (Electronic Discovery & Records Management – Tip Of The Month),” April 3, 2013.

[5] “How Federal Agencies Can Capture Text Messages for E-Discovery,” February 4, 2021.

TIFFs, PDFs, or Neither: How to Select the Best Production Format

Through Rule 34(b) of the FRCP, the requesting party may select the form(s) of production based on the needs of the case. Though this flexibility better serves the client, it also begs a few important questions: What is the best form of production? Is there one right answer? Since there are multiple types of ESI, it’s hard to definitively say that one format type is superior. Arguably, any form is acceptable so long as it facilitates “orderly, efficient, and cost-effective discovery.” Requesting parties may ask for ESI to be produced in native, PDF, TIFF, or paper files. Determinations typically consider the production software’s capabilities as well as the resources accessible to the responding party. [1] The purpose of this article is to weigh the advantages and disadvantages of each type so that legal teams can make informed decisions in the future.

Production Options

  1. Native – As the often-preferred option, native files are produced in the same format in which the ESI was created. Since native files require no conversions, they save litigants time and money. True natives also contain metadata and other information that TIFF and PDF files may lack. Litigants may also be interested in native files for their clear insights into dynamic content (such as comments and animations). TIFFs and PDFs can only process dynamic content through overlapping static images. This cluttered format is often confusing and hard to decipher. Though useful, litigants must be careful with the metadata and dynamic content because they may contain sensitive or privileged information. [2] Native files may seem like the superior choice, but they aren’t always an option. Unfortunately, some ESI types cannot be reviewed unless they are converted into a different form. Additionally, reviewers utilizing this format are unable to add labels or redactions to the individual pages.
  2. TIFF – TIFFs (tagged image format files) are black and white, single-paged conversions of native files. Controllable metadata fields, document-level text, and an image load file are included in this format. Though TIFFs are more expensive to produce than native files, they offer security in the fact that they cannot be manipulated. Other abilities that differentiate TIFFs include branding, numbering, and redacting information. [3] To be searchable, TIFFs must undergo Optical Character Recognition (OCR). OCR simply creates a text version of the TIFF document for searching purposes.
  3. PDFs – Similar to TIFFs, PDFs also produce ESI through static images. PDFs can become searchable in two ways. The reviewer may choose to simply save the file as a searchable document, or they can create an OCR to accompany the PDF. However, OCR cannot guarantee accurate search results for TIFFs or PDFs. [1] Advocates for PDFs cite the format’s universal compatibility, small file size, quick download speeds, clear imaging, and separate pages. [4]
  4. Paper – As the least expensive option, paper production may be used for physical documents or printing digital documents. Many litigants prefer to avoid paper productions because they don’t permit electronic review methods. All redactions and bates stamps must be completed manually. This may be okay for a case that involves a small amount of ESI. However, manually sorting and searching through thousands of documents is time-consuming and exhausting. Litigants who opt for this format also miss out on potentially relevant metadata. [3]

 

[1] Clinton P. Sanko and Cheryl Proctor, “The New E-Discovery Battle of the Forms,” For The Defense, 2007.

[2] “Native File,” Thomas Reuters Practical Law.

[3] Farrell Pritz P.C. “In What Format Should I Make My Production? And, Does Format Matter?” All About eDiscovery, May 30, 2019.

[4] “PDF vs. TIFF,” eDiscovery Navigator, February 13, 2007.

Spoliation Sanctions and Prevention Strategies

Emails, Slack messages, tweets, and digital documents are just a few data types that a company may generate on a daily basis. Thankfully, businesses aren’t required to store all electronic records indefinitely. A party, however, must preserve evidence before litigation begins or whenever the party suspects the information may be relevant to anticipated litigation. Spoliation refers to the failure to preserve relevant information during contemplated or pending litigation. According to the FRCP, intentional spoliation may result in dismissal of action, default judgment, or court/jury presumption that the missing information was unfavorable to the responsible party. If unintentional, the court may impose measures no greater than necessary to cure the prejudice. [1] Though the FRCP offers examples, sanctions may be imposed at the court’s discretion. Other sanctions for spoliation may include monetary fees, precluding a party from introducing other evidence, and a motion to strike out pleadings. [2]

Strategies for Preventing Spoliation

  • Identify all potentially relevant evidence by considering the mediums and locations in which the data may be stored. This can be done by questioning potential custodians through questionnaires or personal interviews. Be mindful that relevant evidence can come in various forms: videos, emails, Word documents, social media posts, etc.
  • Utilize a litigation hold to instruct employees against deleting relevant information. Make sure to send the litigation hold to the IT department if any automated deletion programs need to be stopped.
  • After sharing the litigation hold, issue reminders to custodians of its existence. Merely having the memorandum may not be enough to avoid sanctions. Thus, companies should remind custodians to fully comply with the instructions. [3] Companies may also opt to require written confirmation from employees to confirm they have received the litigation hold.
  • Check your employees’ understanding of their preservation obligations. This can be done by leaving space for questions and confusion surrounding the litigation hold’s instructions.
  • Properly collect and store your ESI. It may be wise to make copies of any relevant information. [4]
  • If necessary, hire an independent expert for the collection and production process. Doing so will reduce your risk of spoliation greatly. If spoliation still occurs, employment of the expert may be considered as evidence of the company’s good faith. [3]

[1] “E-discovery and the Duty to Preserve,” Constangy Brooks, Smith & Prophete LLP, June 20, 2016.

[2] Michael W. Mitchell and Edward Roche, “Lessons Learned: Destroying Relevant Evidence Can Be Catastrophic in Litigation,” Smith Anderson, August 6, 2020.

[3] Rebecca Edelson, Seong Kim, and Angela Reid, “3 Steps in Furtherance of Avoiding Devastating Spoliation Sanctions In Trade Secret Misappropriation Litigation,” Mondaq, December 9, 2019.

[4] James Floyd Jr. and Ryan Owen, “Don’t Delete That Data! Actions Required to Satisfy Document Preservation Obligations,” JD Supra, October 26, 2021.

Ready, Set, Recover: Attain eDiscovery Cost Recovery with CloudNine

There’s a simple truth to running any business, including legal service providers and law firms: Profitability means you need to make more money than you spend. While this seems like an easy concept to follow, there are hidden or unexpected costs which can jeopardize your ability and financial performance. 

One of the biggest culprits behind your firms’ rising operating costs is legal data collection and review. As data sizes and timelines become more unpredictable so does the price of eDiscovery services. 

eDiscovery costs are on the rise for three main reasons:

  1. Exponential growth in data: As our communications have become more sophisticated, so has eDiscovery. Previously, cases including paper files now include financial transactions, geolocation, slack messages and more. This has led to an ever-expanding amount of data associated with new cases.
  2. Complex technology: Many eDiscovery solutions operate more like IT systems, requiring servers, networks, desktops, applications, etc. This requires firms who insource their eDiscovery to maintain a team of IT professionals to manage any updates that may arrive. 
  3. Complex infrastructure:  The fear of missing critical deadlines has driven system architects to prepare for extreme one-off situations versus everyday matters resulting in overbuilt and overcomplicated review solutions. 

The Most Common Cost Recovery Models

Despite the unpredictable cost of eDiscovery, nearly 82% (1) of LSPs and law firms continue to pass these costs along to their clients even though they typically recover only 77% of the costs (2).

The most common cost recovery models are:

  1. Billable hours for time spent performing eDiscovery services:  This typically results in minimal pushback from the clients since they’re accustomed to paying by the hour. 
  2. Billable hours + hosting:  Usually charged per GB, hosting fees allow you to recoup more of your eDiscovery costs but are not always accepted by clients as actual legal work. 
  3. Third-party style:  Charging fees like a vendor allow you to recoup costs for specific line items like GBs processed and hosted, analytics, and licensing fees. 

Surprisingly, 13% of LSPs and firms simply absorb the cost of eDiscovery rather than bill their clients (3).   The most common reasons for this are:

  • They practice in an ultra-competitive market
  • They honor previous agreements
  • They take on non-billable projects

To recoup more of your eDiscovery investment, read on to learn the steps you can take to optimize your cost recovery efforts or download our eBook: Optimize eDiscovery Cost Recovery: 6 Steps to Make Your Review Process More Profitable for a more expansive look into cost recovery. 

1.  Quantify Your Current Cost Recovery Challenges

Identifying all the costs associated with your eDiscovery lets you know where, how, and when you’re losing money. A few of the factors you should assess include:

  • Total annual eDiscovery and document review costs
  • Total revenue from eDiscovery
  • Cost comparison of running eDiscovery document review solutions in-house versus outsourcing. 

2.  Re-examine the Cost of eDiscovery Insourcing versus the Benefits of Outsourcing

While larger law firms can afford complex eDiscovery technology, smaller LSPs and firms need to balance cost and functionality to optimize cost recovery. They need to consider things like:

  • What pricing model makes the most sense?
  • What technology is more economical to own versus lease?
  • What features and functionality do you need to provide your users?

3.  Right-Size Your eDiscovery Data

With data volumes increasing exponentially, you need to be smart about what data you’re hosting in the cloud. By culling your data on-premise, you can reduce your hosting costs before you move it to the cloud. 

4.  Be Strategic About Your Storage

Not every client needs a lot of data storage. Adopt a solution that allows you to adapt your storage strategy on a case-by-case basis so you’re not stuck offering a single standard storage model to clients that may need smaller options.

5.  Choose Self-Service, Easy-to-Use Tools

Your cost recovery is much easier when your internal staff can perform eDiscovery during billable hours. By adopting a solution that’s simple and easy to run, you reduce the need for additional external services.

6.  Standardize Through One Primary Vendor

The more eDiscovery vendors you engage with, the more complex things get – more contracts, more fees, more systems to learn. Look for a single self-model with lost costs, flexible storage plans, and easy-to-use tools to optimize your cost recovery.

Now that you have a better idea of what it takes to improve your eDiscovery cost recovery, it’s time to go a little deeper to understand the benefits of an eDiscovery solution that’s perfectly suited to help you earn more than you spend. Click here to request a demo of CloudNine Review and learn how to make your review process more profitable. 

 

Sources

(1), (2), (3):  2019 eDiscovery Billing Survey

Getting the Most out of Your Keyword Searches

Though a more basic searching technique, keyword searches allow professionals to identify one or two specific words from multiple documents. Nowadays, keyword searches are considered inferior to the successor, predictive coding (TAR). In comparison to TAR, the “outdated” search method is more expensive and time-consuming. Keyword searches are also less predictable; when filtering through the same data set, keyword searches yield fewer results. Based on these flaws, some would argue that keyword searches are a dying technique. So, why bother talking about them at all? Though keyword searches have their flaws, they are far from obsolete. Some legal teams prefer to utilize manual review, recognizing it as a tried-and-true method. For example, the defendants in Coventry Capital U.S., LLC v. EEA Life Settlements, Inc. attempted to use TAR in 2020 to resolve the fraud case, but they argued the process was “protracted and contentious.” Thus, Judge Sarah L. Cave declined to compel the inclusion of TAR. [1] Similar outcomes occurred in cases such as Hyles v. New York City (2016) and In re Viagra (Sildenafil Citrate) Prods. Liab. Lit. (2016). In both cases, the court refused to mandate the usage of TAR when the responding party demonstrated a clear preference for keyword searching. [2] With this knowledge in mind, it’s important to recognize that keyword searches are still effective when done right.

Five Tips for Effective Keyword Searches

  1. Good communication is crucial.

Consult your custodians before running your searches. Use the conversations to identify any specific terms or abbreviations that may be relevant to your review. If necessary, you may also need to speak with an experienced advisor. Through their expertise, they can assist you with the sampling and testing process. Advisors are a great way to save time and money for everyone involved.

  1. Create and test your initial set of terms.

Everyone has to start somewhere. Your initial search terms don’t have to be perfect. While constructing your list, estimate how many results you expect each term to yield. Once you’ve run your test, evaluate how the search results compare to your expectations. If you received significantly fewer results than anticipated, adjust the search terms as needed. You may have to refine your search list multiple times. Anticipate this possibility to avoid missing any deadlines.  [3]

  1. Limit searches that include wildcards and/or numbers.

When searching for words with slight differences, it’s better to search for each variation rather than use wildcards. For example, you should set up individual searches for “email” and “emails” instead of using “email*” as a search term. Numbers can also be a problem if not done correctly (i.e. searching for the number 10 will show results for 100, 1 000, etc.). Make sure to place the number in quotes to avoid this issue.

  1. Count the characters.

Search terms with four or fewer characters are likely to yield false hits. Short words or abbreviations like HR or IT may be identified in longer, unrelated results. Filtering out the false hits requires extra review time and money.

  1. Know how to search for names properly.

Avoid searching for custodian names. Their name will most likely be attached to more documents and hits than expected or desired. When searching for non-custodians, place “w/2” between their first and last name. Doing so will show all variations of the full name. Finally, consider searching for nicknames to get even more results. Ask the client what nicknames they respond to before making your search term list. [4]

 

[1] Doug Austin, “Court Rules for Defendant on TAR and (Mostly) Custodian Disputes: eDiscovery Case Law,” eDiscovery Today, January 12, 2021.

[2] “How Courts Treat ‘Technology Assisted Review’ in Discovery,” Rivkin Radler, March 13, 2019.

[3] “Improving the effectiveness of keyword search terms,” E-discovery Consulting, November 11, 2021.

[4] Kathryn Cole, “Key Word Searching – What Is It? And How Do I Do It (Well)?,” All About eDiscovery, December 9, 2016.

What Happens When You Don’t Have a Modern Data Solution?

Why a Modern Data Review Platform is Critical to eDiscovery

When legal professionals first incorporated electronically stored information (ESI) into their eDiscovery document review process, it opened the door for a variety of digital data types to be used in investigation and litigation. 

It didn’t take long for eDiscovery to begin taking in ESI like emails, documents, spreadsheets, databases, CAD/CAM files, digital images, and websites. These have remained the primary sources of digital discovery data used by legal professionals. 

However, as technology continues to evolve, new modern data types are becoming increasingly vital in litigation. These new modern data types fall under five primary categories, in addition to traditional eDiscovery: 

  1. Communication
  2. Computer/User Activity 
  3. Geo-location tracking (location tracking software)
  4. Financial Transactions
  5. Social Media

These modern data types have their own unique uses and their associated metadata allows you to create a chronological list of events and user activities so you can gain context where it did not exist in traditional discovery. 

Here are just a few examples of how it works:

  • By gathering data on computer activity, you’re able to see when individuals upload documents to Google Drive or download them onto thumb drives. 
  • Geolocation lets you determine where a computer activity took place so you know if they were at home, in the office, or at another location.
  • By using the metadata associated with different communication applications, you can track and document relevant dialogue between two parties as they carry their conversation from one device or application to another. 

With these additional data types, you’re able to tell a complete story through your legal review when combining traditional and modern data, in one unified eDiscovery platform. 

As more modern data forensic artifacts emerge, CloudNine is doing our part to help your eDiscovery team gain the context and confidence you need to solve your cases. Sign up to receive updates on our offerings here.

Reconstructing Digital Conversations To Unveil The Full Picture

In a modern data eDiscovery solution, you can do things that simply aren’t possible or are too difficult or costly to do in a traditional document review-centric platform. 

In a traditional legal document review platform, communication between two individuals would be collected and stored as individual documents. This means the context of the whole conversation including text before and after the individual messages could lose context in the conversation, leaving a void in the interpretation.

A modern data review platform allows you to collect data from multiple devices and applications including traditional ESI and loose files. By using the metadata associated with the collected data, you can select two individuals and review all communication between them in a chronological timeline. Now you have the context to perform the smartphone forensics and short message discovery you need to follow a conversation that began in Slack but transitioned to text messaging before concluding in WhatsApp.

Cell Phone Discovery: Reviewing Text Messages In a Modern Data Review Platform

Traditional legal review platforms are often inefficient when reviewing text messages. In a traditional platform, text threads are converted to PDF requiring each thread to be reviewed, text-by-text. In this case, five individuals in a group text messaging thread, means you’ll see the same message collected five times. This results in a lot of time and money wasted redacting large parts of the text thread, irrelevant to the topic. 

Smartphone data discovery allows you to filter duplicate messages, and remove 20-30% of the collected data.  With a simple click of a button, modern eDiscovery review allows you to select the text messages you want to advance and remove the irrelevant text from long or group threads.

Another challenge for traditional review platforms is the inability to maintain native formats for data. By relying on screenshots or PDFs, organizations using older platforms can fall victim to doctored images that could affect the course of the litigation. 

For example, in Rossbach v. Montefiore Medical Center, a plaintiff used screenshots of a text message to attempt to prove that her former employer had sexually harassed, then fired her. The message was allegedly sent to her iPhone 5 which cannot run an operating system beyond iOS 10. A forensics investigator examined the screenshot and discovered an emoji present in the image was a version not available until iOS 13 was released.

Modern eDiscovery review platforms capture text message formats (MMS and SMS) in their native format so there’s no risk of fraudulent or altered data in the review.  A unified eDiscovery platform will combine both traditional and modern data without creating documents from modern data sources.

Learn more about how your legal team can hit the eDiscovery bullseye with every data type with CloudNine Review here.

Why Organizations Are Hesitant to Commit to a Modern Data Review Platform

Some organizations are hesitant to adopt a modern data review platform because of their apprehension to change standard operations. They’re unwilling to change their review mentality from document-based to metadata-based or a hybrid of both.  After all, if it’s working, why change it?  

Many organizations are also forced to break-out their review processes among multiple platforms – one for traditional data like emails and Word documents and one for modern data like geolocation, social media and computer activity. 

In addition, there are some objections to native file production:

  • Retrieval of native files after initial document collection would mean additional costs.
  • Redaction is difficult or even impossible with some native file types.
  • Image-based productions are often accepted in court. 
  • Static images are equally useful for analysis and review of native files.
  • Federal Rule of Civil Procedure 34 does not specifically require native formats.

However, as modern data types become more common and important, organizations are beginning to understand that using a traditional, legacy document solution to review modern data is becoming burdensome, expensive, and slow. 

How a Modern Data Review Platform Simplifies eDiscovery

Simply put, a modern data review platform like CloudNine’s ESI Analyst organizes your data more efficiently by using metadata to sort modern data types by recipients, senders, timestamps, locations, and computer activity. 

The data is then tagged under one of the following data types:

  1. Call logs and voice mails 
  2. Chat applications (WhatsApp, Telegram, Facebook Messenger, etc.)
  3. Email
  4. Corporate chat applications (Slack, MS Teams, etc.)
  5. Text Messages (SMS, MMS)
  6. Computer activity 
  7. Geolocation
  8.  Social media
  9.  Financial transactions 

In addition, with a built-in foreign language tool, you have access to more than 80 supported languages so nothing gets lost in translation.

While legacy document review solutions are limited to reviewing documents, they miss key data points like geolocation, financial transactions, and other pertinent data that does not fit in a document-centric workflow.  The CloudNine, integrated solution allows you to filter, search, tag, and review all data in one platform.  

Let CloudNine help you integrate a modern data review platform into your eDiscovery processes. We can train your case teams quickly so they’re up and running in 15-20 minutes. To learn more about how our modern data solution can make your eDiscovery processes more efficient, drop us a line. 

Four Tips for Successful Meet and Confers

When approaching any challenge or goal, it’s often best to start with the big picture before narrowing things down. By working backwards, you can identify the steps needed to achieve the desired result. This type of thinking can be applied to Rule 26(f) conferences (also known as meet and confers). As mandated by Rule 26(f) of the FRCP, both parties must meet at least 21 days before holding a scheduling conference. The purpose of the meet and confer is to discuss litigation details such as data preservation, privilege issues, the form of production, and expenses. To get the ball rolling, counsel can prepare a list of general questions: What data types need to be collected? How should the scope of discovery be defined? What pace is needed to meet court-established deadlines? General questions like these build a solid foundation for deeper inquiries and concerns. [1]

More Tips for Meet and Confers

  1. Initiate the conference early.

The meet and confer process is not something that can or should be rushed. Negotiation takes time, patience, and multiple attempts. Waiting until the last-minute benefits no one. Instead of frantically rushing to meet deadlines, schedule the meet and confer as soon as possible. Sometimes, counsel is hesitant to meet early because they feel that they don’t have enough information and prep time. Thus, in addition to meeting early, parties should also meet often. Multiple conferences allow the parties to fully understand and iron out the details.

  1. Identify and evaluate the accessibility of relevant data types.

Companies interact with a variety of data types on a daily basis – email, Facebook, Zoom, the list goes on. Producing each one would be burdensome, expensive, and unnecessary. Only focus on relevant data types that are proportional to the needs of the case. Companies also regularly create and destroy large volumes of information. Therefore, you must assess their data retention policies to determine what information is stored and where. Once that’s settled, consider whether the data types are too expensive or inaccessible for production.

  1. Walk in with the right mindset.

Compromise is impossible to reach without flexibility from both parties. At the same time, neither party should feel obligated to concede to all proposals. Meet and confers should be thought of as open dialogues. Discuss, debate, and engage in respectful arguments when necessary. Above all, cooperate by ensuring your suggestions are reasonable and proportional. [2]  If this aspect is a concern, consider hiring a discovery expert. Through their industry knowledge, experts can assess the opposing party’s discovery systems and requests.

  1. Understand your client’s data policies and systems.

Before heading into the meet and confer, try to gather as much information as possible. Ask your client if they have any formal information governance policies. If not, probe further to identify how and where their data is stored. It’s also important to identify the person or department in charge of storing said data. The client’s IT environment must be understood as well. Inquire about the quantity and locations of company computers. Additionally, request information about the company’s software programs, backup schedules, data custodians, etc. [1]

 

[1] Ronald I. Raether Jr., “Preparing for the Rule 26(f) Scheduling Conference and Other Practical Advice in the Wake of the Recent Amendments to the Rules Governing E-Discovery,” The Federal Lawyer, August 2007.

[2] Scott Devens, “Defensible Strategies for the ‘Meet and Confer,’” Bloomberg Law, Oct. 18, 2011.