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eDiscovery Best Practices: Avoiding eDiscovery Nightmares: 10 Ways CEOs Can Sleep Easier
 

I found this article in the CIO Central blog on Forbes.com from Robert D. Brownstone – it’s a good summary of issues for organizations to consider so that they can avoid major eDiscovery nightmares.  The author counts down his top ten list David Letterman style (clever!) to provide a nice easy to follow summary of the issues.  Here’s a summary recap, with my ‘two cents’ on each item:

10. Less is more: The U.S. Supreme Court ruled unanimously in 2005 in the Arthur Andersen case that a “retention” policy is actually a destruction policy.  It’s important to routinely dispose of old data that is no longer needed to have less data subject to discovery and just as important to know where that data resides.  My two cents: A data map is a great way to keep track of where the data resides.

9. Sing Kumbaya: They may speak different languages, but you need to find a way to bridge the communication gap between Legal and IT to develop an effective litigation-preparedness program.  My two cents: Require cross-training so that each department can understand the terms and concepts important to the other.  And, don’t forget the records management folks!

8. Preserve or Perish: Assign the litigation hold protocol to one key person, either a lawyer or a C-level executive to decide when a litigation hold must be issued.  Ensure an adequate process and memorialize steps taken – and not taken.  My two cents: Memorialize is underlined because an organization that has a defined process and the documentation to back it up is much more likely to be given leeway in the courts than a company that doesn’t document its decisions.

7. Build the Three-Legged Stool: A successful eDiscovery approach involves knowledgeable people, great technology, and up-to-date written protocols.  My two cents: Up-to-date written protocols are the first thing to slide when people get busy – don’t let it happen.

6. Preserve, Protect, Defend: Your techs need the knowledge to avoid altering metadata, maintain chain-of-custody information and limit access to a working copy for processing and review.  My two cents: A good review platform will assist greatly in all three areas.

5. Natives Need Not Make You Restless: Consider exchanging files to be produced in their original/”native” formats to avoid huge out-of-pocket costs of converting thousands of files to image format.  My two cents: Be sure to address how redactions will be handled as some parties prefer to image those while others prefer to agree to alter the natives to obscure that information.

4. Get M.A.D.?  Then Get Even: Apply the Mutually Assured Destruction (M.A.D.) principle to agree with the other side to take off the table costly volumes of data, such as digital voicemails and back-up data created down the road.  My two cents: That’s assuming, of course, you have the same levels of data.  If one party has a lot more data than the other party, there may be no incentive for that party to agree to concessions.

3. Cooperate to Cull Aggressively and to Preserve Clawback Rights: Setting expectations regarding culling efforts and reaching a clawback agreement with opposing counsel enables each side to cull more aggressively to reduce eDiscovery costs.  My two cents: Some parties will agree on search terms up front while others will feel that gives away case strategy, so the level of cooperation may vary from case to case.

2. QA/QC: Employ Quality Assurance (QA) tests throughout review to ensure a high accuracy rate, then perform Quality Control (QC) testing before the data goes out the door, building time in the schedule for that QC testing.  Also, consider involving a search-methodology expert.  My two cents: I cannot stress that last point enough – the ability to illustrate how you got from the large collection set to the smaller production set will be imperative to responding to any objections you may encounter to the produced set.

1. Never Drop Your Laptop Bag and Run: Dig in, learn as much as you can and start building repeatable, efficient approaches.  My two cents: It’s the duty of your attorneys and providers to demonstrate competency in eDiscovery best practices.  How will you know whether they have or not unless you develop that competency yourself?

So, what do you think?  Are there other ways for CEOs to avoid eDiscovery nightmares?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: eDiscovery Malpractice Case Highlights Expectation of Higher Standards
 

Normally, eDiscovery Daily reports on cases related to eDiscovery issues after the decision has been rendered.  In this case, the mere filing of the lawsuit is significant.

Friday, we noted that competency ethics was no longer just about the law and that competency in eDiscovery best practices is expected from the attorneys and any outside providers they retain.  An interesting article from Robert Hilson at the Association of Certified eDiscovery Professionals® (ACEDS™) discusses what may be the first eDiscovery malpractice case ever filed against a law firm (McDermott Will & Emery) for allegedly failing to supervise contract attorneys that were hired to perform the client’s work and to protect privileged client records.  A copy of the article is located here.

J-M Manufacturing Co., Inc., a major manufacturer of PVC piping, had hired McDermott to defend against civil False Claims Act charges concerning the quality and sale of its products to federal and state governments. After the case was filed in January 2006, it remained under seal for nearly three years.  According to the complaint, during that time, a large-scale document review ensued (160 custodians) and McDermott hired Stratify, an outside vendor, to cull through the ESI.

J-M retained Sheppard Mullin Richter & Hampton to replace McDermott in March 2010.  Why?  According to the complaint, McDermott worked directly with the Assistant US Attorney to develop a keyword list for identifying responsive ESI, but, despite this effort, the first production set was returned by the government after they found many privileged documents. The complaint indicates that McDermott and its contract lawyers then produced a second data set again with a large number of privileged documents even though it was filtered through a second keyword list.

J-M contends in the complaint that McDermott's attorneys “performed limited spot-checking of the contract attorneys' work, [and] did not thoroughly review the categorizations or conduct any further privilege review.”  After Sheppard replaced McDermott on the case, they asked for the privileged documents to be returned, but the “relator” refused, saying that McDermott had already done two privilege reviews before giving those documents to the government and, therefore, J-M had waived the attorney-client privilege. In the complaint, J-M contends that 3,900 privileged documents were erroneously produced by McDermott as part of 250,000 J-M electronic records that were reviewed.  It is unclear from the complaint whether McDermott provided the contract reviewers themselves or used an outside provider.  It will be interesting to see how this case proceeds.

So, what do you think?  Have you experienced inadvertent disclosures of privilege documents in a case?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Completing Production AFTER Trial is Too Late

In DL v. District of Columbia, No. 05-1437 (RCL) (D.D.C. May 9, 2011), repeated, flagrant, and unrepentant failures of the District of Columbia to comply with discovery orders, failure to supplement discovery responses, and eventual production of thousands of e-mails—some more than two years old—after the date of trial resulted in a sanction of waiver of privilege over documents sought by plaintiffs.

Plaintiffs filed an action seeking injunctive and declaratory relief for the failure of the District of Columbia Government to provide them with a free appropriate public education as required under the Individuals with Disabilities and Education Act. On the first day of trial six years later, counsel for the District acknowledged that the District several days earlier had begun a rolling production of thousands of emails per day that was expected to continue through the end of trial. Counsel for the District stated that the court had not been informed of production problems because it had been hoped review of the documents for relevance and privilege and thus production of the documents could have been completed earlier. From the bench, the court ordered the District to produce all of the email without objection and with privilege waived within one week of the end of the trial so that plaintiffs could seek to supplement the trial record if necessary. The District sought reconsideration of the order.

Likening the District’s posture to an airplane with landing gear that deploys only after touchdown, the court denied the District’s motion. Waiver of privilege was an appropriate sanction because it was just and was proportional between offense and sanction, considering the District’s violation of multiple discovery orders and failure to meet its obligation to supplement its discovery responses. The court concluded that its sanction was justified considering prejudice to plaintiffs, prejudice to the judicial system, and the need to deter similar misconduct in the future. Since the District chose not to bring the situation to the court’s attention until the day of trial, the court “had no practical alternative short of entering a default.”

The court held that whether the District had acted in good faith and whether plaintiffs also had committed discovery violations was irrelevant:

Whether the District made a good-faith effort to produce all responsive e-mails before the trial is irrelevant. As explained above, it was not sanctioned for failing to make a good-faith effort. It was sanctioned for openly, continuously, and repeatedly violating multiple Court orders, failing to adhere to or even acknowledge the existence of the Federal Rules’ discovery framework, and committing a discovery abuse so extreme as to be literally unheard of in this Court. The Rules require more than simply making a good-faith effort to produce documents. They require adherence to a very precise framework for navigating the discovery process. Moreover, the duty to adhere to clear Court orders is among a lawyer’s most basic. Were it not for those two directives—the Federal Rules’ discovery framework and Court orders regarding discovery — discovery would devolve into pure bedlam. Disciplined adherence to those Rules and Orders on the part of courts as well as parties is the only tool our system has to wrangle the whirlwind as it were and tame an otherwise unmanageable part of the litigation process. A good-faith effort to produce documents in the absence of adherence to Court orders and the Federal Rules is useless.

So, what do you think?  Have you ever had opposing counsel try to produce documents at the beginning of trial – or even after?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Email Footers Give Privilege Searches the Boot
 

This communication (including any attachments) is intended for the use of the intended recipient(s) only and may contain information that is confidential, privileged or legally protected.  Any unauthorized use or dissemination of this communication is strictly prohibited.  If you have received this communication in error, please immediately notify the sender by return e-mail message and delete all copies of the original communication. Thank you for your cooperation.

This is an example of a standard email disclaimer often automated to appear in the footer of outgoing emails to disclaim liability.  Many organizations choose to add disclaimers to their emails for legal protection to attempt to protect themselves from legal threats such as breach of confidentiality or accidental breach of privilege.

However, when it comes time to collect and search email collections for confidentiality and privilege, these email footers can wreak havoc with those searches.  Searches for the words “confidential” or “privileged” will essentially be rendered useless as they will literally retrieve every email with the email disclaimer footer in it.

So, what to do?

One way to address the issue is to identify any other variations of words and phrases that might imply privilege.  Searching for phrases like “attorney client” or “attorney work product” – provided those phrases are not in the footer – may identify many of the privileged files.

Another way is to shift your search focus to names of individuals likely to conduct privileged communications, such as the names of the attorneys communicating with the organization.  Sometimes you may not know the names of all of the attorneys, so a search for domains associated with the outside counsel firms should identify the names of the individuals sending from or receiving to those domains.

If searching for the term "privileged" is still the best way to ensure that you find all of the potentially privileged files, one of our readers, Mark Lyon, actually identified a better way to search for the term “privileged” that I sheepishly admit I did not think of late last night when I wrote this, so I had to amend this post to include it (a first!).   Identifying the various footers at use within at least the main companies included in the collection, then excluding those entire footers from the index will remove those footers from filling up your search results.  Another reader, Joe Howie, has discussed in more detail an approach for removing those footers from the index.  Thanks to both Mark and Joe for keeping me on my toes!  🙂

So, what do you think?  Are email disclaimer footers making your privileged searches more complicated?  Please share any comments you might have or if you’d like to know more about a particular 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: 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 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 Best Practices: No Bates, No Problem for Native Files

As today’s document collections are almost entirely electronic in a format used by the native application (i.e., “native files”), it has become more commonplace to produce those original native files to opposing counsel in eDiscovery.  Producing the native files saves costs in converting the files to be produced to an image format (either TIFF or PDF) before production.  And, for the recipients of a production, receiving native files enables them to also receive the metadata associated with those files (as it is contained within the files themselves).  If you don’t understand the benefits of receiving the underlying metadata, try reviewing an image of an Excel spreadsheet and see if you can understand how the numbers were calculated without the underlying formulas.  Not so easy, is it?

However, it seems to “upset the legal apple cart” when attorneys have to contemplate applying Bates numbers to native files.  Because many native file types are not stored in a typical paginated, document-oriented format, it is difficult to impossible to determine the number of pages for each file.  Because attorneys are so used to having a Bates stamp on each page of a document, many are still known to produce (and request production) in an image format, adding costs unnecessarily.  That would be like printing out every email in your Inbox before reading them.

It has become commonplace for parties to agree (and courts to accept) a file-level “Bates” or Unique Production Identifier (UPI) where each file is named with a prefix and a sequential number (just like a Bates number, only they’re not stamped in the file, but used as the file name).  These productions are usually accompanied by a data file, containing metadata for loading into a review tool, which includes the original file name and path of each file being produced.  This form of production has become common for any size of case.

If there’s a concern about referencing individual page numbers at deposition or trial, any files used as exhibits can still be converted to image (or printed) and a number applied.  You could simply use the UPI as the prefix, followed by a sequential number, so page 3 of the 11th file in the production could be stamped like this: PROD000011-00003.  This enables you to uniquely identify each native file, and still correlate the native file with pages when printed.

Of course, when you have to redact files, it’s still more common to convert those files to image and apply the redactions to the images, as redaction of native files (though performed in some cases) has not yet become a widespread practice.  One miracle at a time!

So, what do you think?  Are your productions routinely in native format?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: EDRM Metrics Privilege Survey
 

As a member of the EDRM Metrics Project for the past four years, I have seen several accomplishments by the group to provide an effective means of measuring the time, money and volumes associated with eDiscovery activities, including:

  • Code Set: An extensive code set of activities to be tracked from Identification through Presentation, as well as Project Management.
  • Case Study: A hypothetical case study that illustrates at each phase why metrics should be collected, what needs to be measured, how metrics are acquired and where they’re recorded, and how the metrics can be used.
  • Cube: A simple graphical model which illustrates the EDRM phases, aspects to be tracked (e.g., custodians, systems, media, QA, activities, etc.) and the metrics to be applied (i.e., items, cost, volume, time).

The EDRM Metrics project has also been heavily involved in proposing a standard set of eDiscovery activity codes for the ABA’s Uniform Task Based Management System (UTBMS) series of codes used to classify the legal services performed by a law firm in an electronic invoice submission.

Now, we need your help for an information gathering exercise.

We are currently conducting a Metrics Privilege survey to get a sense throughout the industry as to typical volumes and percentages of privileged documents within a collection.  It’s a simple, 7 question survey that strives to gather information regarding your experiences with privileged documents (whether you work for a law firm, corporation, provider or some other organization).

If you have a minute (which is literally all the time it will take), please take the survey and pass along to your colleagues to do so as well.  The more respondents who participate, the more representative the survey will be as to the current eDiscovery community.  To take the survey, go to edrm.net or click here.  EDRM will publish the results in the near future.

So, what do you think?  What are your typical metrics with regard to privileged documents?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Judges’ Guide to Cost-Effective eDiscovery
 

Last week at LegalTech, I met Joe Howie at the blogger’s breakfast on Tuesday morning.  Joe is the founder of Howie Consulting and is the Director of Metrics Development and Communications for the eDiscovery Institute, which is a 501(c)(3) nonprofit research organization for eDiscovery.

eDiscovery Institute has just released a new publication that is a vendor-neutral guide for approaches to considerably reduce discovery costs for ESI.  The Judges’ Guide to Cost-Effective E-Discovery, co-written by Anne Kershaw (co-Founder and President of the eDiscovery Institute) and Joe Howie, also contains a foreword by the Hon. James C. Francis IV, Magistrate Judge for the Southern District of New York.  Joe gave me a copy of the guide, which I read during my flight back to Houston and found to be a terrific publication that details various mechanisms that can reduce the volume of ESI to review by up to 90 percent or more.  You can download the publication here (for personal review, not re-publication), and also read a summary article about it from Joe in InsideCounsel here.

Mechanisms for reducing costs covered in the Guide include:

  • DeNISTing: Excluding files known to be associated with commercial software, such as help files, templates, etc., as compiled by the National Institute of Standards and Technology, can eliminate a high number of files that will clearly not be responsive;
  • Duplicate Consolidation (aka “deduping”): Deduping across custodians as opposed to just within custodians reduces costs 38% for across-custodian as opposed to 21% for within custodian;
  • Email Threading: The ability to review the entire email thread at once reduces costs 36% over having to review each email in the thread;
  • Domain Name Analysis (aka Domain Categorization): As noted previously in eDiscoveryDaily, the ability to classify items based on the domain of the sender of the email can significantly reduce the collection to be reviewed by identifying emails from parties that are clearly not responsive to the case.  It can also be a great way to quickly identify some of the privileged emails;
  • Predictive Coding: As noted previously in eDiscoveryDaily, predictive coding is the use of machine learning technologies to categorize an entire collection of documents as responsive or non-responsive, based on human review of only a subset of the document collection. According to this report, “A recent survey showed that, on average, predictive coding reduced review costs by 45 percent, with several respondents reporting much higher savings in individual cases”.

The publication also addresses concepts such as focused sampling, foreign language translation costs and searching audio records and tape backups.  It even addresses some of the most inefficient (and therefore, costly) practices of ESI processing and review, such as wholesale printing of ESI to paper for review (either in paper form or ultimately converted to TIFF or PDF), which is still more common than you might think.  Finally, it references some key rules of the ABA Model Rules of Professional Conduct to address the ethical duty of attorneys in effective management of ESI.  It’s a comprehensive publication that does a terrific job of explaining best practices for efficient discovery of ESI.

So, what do you think?  How many of these practices have been implemented by your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.