Review Archives

eDiscovery Case Law: Not So Fast on Computer Assisted Review

March 19, 2012

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion approving of the use of computer-assisted review of electronically stored information (“ESI”) for this case, making it likely the first case to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” However, last Tuesday (March 13), District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their objections to the ruling.

On February 8, the parties attended a hearing to discuss their discovery protocol, and in particular the use of computer-assisted review (also referenced as “predictive coding”). At the hearing, Judge Peck issued a ruling, approving the use of computer-assisted review, and instructed the parties to submit a draft protocol for court approval. Judge Peck approved the proposed protocol on February 22 that had been submitted, over the plaintiffs’ objections. On February 24, Judge Peck issued his written opinion detailing his rulings from the February 8th hearing.

On February 22 (the same day the protocol was approved, but before Judge Peck’s written opinion), the plaintiffs filed their 24 page objections to the February 8th discovery rulings, indicating their argument that the “Magistrate’s decision to adopt MSL’s predictive coding protocol is clearly erroneous and contrary to law.” The plaintiffs specifically argued that “sanctioning the use of predictive coding in this employment discrimination case violates Federal Rule of Civil Procedure 26” and also argued that the court’s adoption of a “novel discovery methodology” without “supporting evidence” or “standards for assessing reliability” was “clearly erroneous and contrary to law”. On March 7, the defendant filed its opposition to plaintiffs’ objections.

Then, on March 9, the plaintiffs submitted a letter to District Judge Carter, requesting an opportunity to “file a ten-page reply brief” to the defendant’s response. In the letter, the plaintiffs argued that Judge Peck’s written ruling, issued two days after their objections were filed, “expanded on the reasoning for the rulings he had made from the bench,” including relying on “a number of articles that were not addressed in the parties’ submissions” and making observations about plaintiffs’ objections. As a result, the plaintiffs requested the opportunity to “squarely address Magistrate Judge Peck’s complete rulings.” In addition, the plaintiffs argued that allowing their reply would not result in prejudice where the defendant had “the benefit” of filing its opposition to plaintiffs’ objections after the written ruling was issued and thus had the opportunity to consider Magistrate Judge Peck’s analysis when crafting their response.

Which brings us to last Tuesday (March 13), Judge Carter granted plaintiffs’ request and ordered their reply be submitted by March 19 (that’s today!). Then, we’ll see what happens next.

So, what do you think? Do the plaintiff’s objections have merit? If Judge Carter throws out predictive coding, will there be hand wringing and wailing from the predictive coding vendors? Please share any comments you might have or if you’d like to know more about a particular topic.

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 History: A Look Back at Zubulake

March 16, 2012

Yesterday, we discussed a couple of cases within a month’s time where the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212. Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data. Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case. But, do you understand just how many groundbreaking opinions resulted from that case? For those who aren’t aware, let’s take a look back.

The plaintiff, Laura Zubulake, filed suit against her former employer UBS Warburg, alleging gender discrimination, failure to promote, and retaliation. Southern District of New York Judge Shira Sheindlin's rulings in this case are the most often cited in the area of electronic discovery, and were issued prior to the 2006 amendments to the Federal Rules of Civil Procedure. That’s somewhat like establishing laws before the Ten Commandments! The important opinions related to eDiscovery are commonly known as Zubulake I, Zubulake III, Zubulake IV and Zubulake V. Here is a summary of each of those opinions:

Zubulake v. UBS Warburg, 217 F.R.D. 309 (Zubulake I) and Zubulake v. UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. 2003) (Zubulake III)

The plaintiff argued that key evidence was located in various emails exchanged among employees of UBS, the defendant. Initially, the defendant produced about 350 pages of documents, including approximately 100 pages of email, but the plaintiff produced approximately 450 pages of email correspondence on her own. To address the discrepancy, the plaintiff requested for UBS to locate the documents that existed in backup tapes and other archiving media.

The defendant, arguing undue burden and expense, requested the court to shift the cost of production to the plaintiff, citing Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002). In May 2003, the court ruled stating that whether the production of documents is unduly burdensome or expensive "turns primarily on whether it is kept in an accessible or inaccessible format". The court determined that the issue of accessibility depends on the media on which data are stored. It described five categories of electronic media, as follows:

Online data, including hard disks;
Near-line data, including optical disks;
Offline storage, such as magnetic tapes;
Backup tapes;
Fragmented, erased and damaged data.

The last two categories were considered inaccessible as they were not readily available and thus subject to cost-shifting. Discussing the Rowe decision, the court concluded that it needed modification and created a new seven factor balance test for cost-shifting:

The extent to which the request is specifically tailored to discover relevant information;
The availability of such information from other sources;
The total cost of production, compared to the amount in controversy;
The total cost of production, compared to the resources available to each party;
The relative ability of each party to control costs and its incentive to do so;
The importance of the issues at stake in the litigation; and
The relative benefits to the parties of obtaining the information.

The defendant was ordered to produce, at its own expense, all responsive email existing on its servers, optical disks, and five backup tapes as selected by the plaintiff. The court would only conduct a cost-shifting analysis after the review of the contents of the backup tapes.

In July 2003, Zubulake III applied the cost-shifting test outlined in Zubulake I based on the sample recovery of data from five backup tapes. After the results of the sample restoration, both parties wanted the other to fully pay for the remaining backup email. The sample cost the defendant about $19,003 for restoration but the estimated costs for production was $273,649, including attorney and paralegal review costs. After applying the seven factor test, it determined that the defendant should account for 75 percent of the restoration and searching costs, excluding attorney review costs.

Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) (Zubulake IV)

During the restoration effort, the parties discovered that some backup tapes were no longer available. The parties also concluded that relevant emails created after the initial proceedings had been deleted from UBS's email system and were only accessible on backup tapes. The plaintiff then sought an order requiring UBS to pay for the total costs of restoring the remaining backup tapes and also sought an adverse inference instruction against UBS and the costs for re-deposing some individuals required because of the destruction of evidence.

In October 2003, Judge Scheindlin found that the defendant had a duty to preserve evidence since it should have known that it would be relevant for future litigation. However, at the time, she concluded that the plaintiff failed to demonstrate that the lost evidence supported the adverse inference instruction claim. But, she did order the defendant to cover the costs as claimed by the plaintiff.

Zubulake v. UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) (Zubulake V)

In July 2004, Judge Scheindlin ruled that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff's motion for adverse inference instruction sanctions, sought in Zubulake IV, due to the deleted evidence (emails and tapes) and inability to recover key documents during the course of the case.

The court also indicated that defense counsel was partly to blame for the document destruction because it had failed in its duty to locate and preserve relevant information. In addressing the role of counsel in litigation, the court stated that "[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched" by ensuring all relevant documents are discovered, retained, and produced and that litigators must guarantee that relevant documents are preserved by instituting a litigation hold on key data, and safeguarding archival media.

In the final instructions to the jury Judge Scheindlin instructed in part, "[i]f you find that UBS could have produced this evidence, the evidence was within its control, and the evidence would have been material in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence would have been unfavorable to UBS." In addition, monetary sanctions were awarded to the plaintiff for reimbursement of costs of additional re-depositions and of the motion leading to this opinion, including attorney fees. The jury found in the plaintiff’s favor on both claims awarding compensatory and punitive awards totaling $29.2 million.

Judge Scheindlin’s opinions in Zubulake, including definitions of accessible and inaccessible data, the seven factor balance test for cost shifting and definition of counsel’s obligation for preserving data, have been referenced in numerous cases since and have provided guidance to organizations preparing for litigation. For any of you who may not have fully understood the significance of the case, I hope this look back was helpful.

So, what do you think? Did you learn something new about Zubulake? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: The Zubulake Rules of Civil Procedure

March 15, 2012

As noted in Law Technology News (N.Y. Appellate Division Continues to Press 'Zubulake' EDD Standard) recently, the New York Appellate Division has embraced the federal standards of Zubulake v. UBS Warburg LLC, 220 FRD 212 in two case rulings within a month’s time.

In Voom HD Holdings v. EchoStar Satellite LLC, 600292/08, the decision, written by Justice Sallie Manzanet-Daniels, was the first by a New York state appellate court to apply the standard for spoliation of electronic evidence applied by Judge Shira Scheindlin in Zubulake in 2003. As defined by Judge Scheindlin, the Zubulake standard asserts that "once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."

The case relates to a 2005 contract dispute between EchoStar and Cablevision subsidiary Voom HD Holdings, within which Voom agreed to provide EchoStar rights to broadcast Voom's programming. Once the case was filed by Voom in February 2008, EchoStar put a litigation hold in place, instructing employees to save anything that they deemed potentially relevant to the litigation, but did not extend this hold to stopping automatic deletion of eMails from EchoStar's computers until four months later in June 2008.

Voom moved for spoliation sanctions against EchoStar for failing to preserve its eMails and Manhattan Supreme Court Justice Richard Lowe granted the motion, citing Zubulake, finding that EchoStar should have put in place a litigation hold (including a stop to automatic deletion of e-mails) in June 2007, when its corporate counsel sent Voom a letter containing a notice of breach, a demand and an explicit reservation of rights (i.e., reasonably anticipated litigation). Therefore, EchoStar was given an adverse inference sanction (they had also received a similar sanction in 2005 in Broccoli v. EchoStar Communications Corp., 229 FRD 506).

EchoStar appealed and requested the appellate court to adopt a rule that a company must preserve documents when litigation is pending or when it has "notice of a specific claim." However, that argument was rejected by The First Department, which ruled that “EchoStar and amicus's approach would encourage parties who actually anticipate litigation, but do not yet have notice of a 'specific claim' to destroy their documents with impunity” and upheld the sanction.

In U.S. Bank National Association v. GreenPoint Mortgage Funding Inc., 600352/09, the First Department held that the producing party should bear the initial costs of "searching for, retrieving and producing discovery," but that lower courts may permit cost shifting based on the factors set forth in Zubulake. The case was filed by U.S. Bank, NA (indenture trustee for the insurers and holders of the mortgage-backed notes issued by GreenPoint Mortgage Funding Inc., a now defunct mortgage lender specializing in "no-doc" and "low-doc" loans) against GreenPoint.

U.S. Bank served its first document production request on GreenPoint along with its original complaint; however, GreenPoint did not produce the requested documents. Instead, they moved for a protective order arguing that U.S. Bank should pay the costs associated with its document requests including the cost of attorney review time for confidentiality and privilege assertions. The court upheld GreenPoint's argument that the "party seeking discovery bears the costs incurred in its production" but rejected GreenPoint's request for U.S. Bank to also bear the attorney costs for privilege and confidentiality determinations.

Upon appeal, the First Department reversed the lower court's conclusion that the requesting party bear the cost of production, finding that, per the Federal Rules of Civil Procedure and Zubulake, the producing party should “bear the cost of the searching for, retrieving, and producing documents, including electronically stored information.” In the February 28 ruling, Justice Rolando Acosta wrote that the court was “persuaded that Zubulake should be the rule in this Department.” However, the court also ruled that the lower court could order cost shifting under CPLR Article 31 between the parties by considering the seven factors set forth in Zubulake.

What are those seven factors? Tune in tomorrow, when we will provide a refresher to the Zubulake case and its various opinions!

So, what do you think? Is the Zubulake standard appropriate for these two cases? Is it appropriate for cases in general? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: The Rest of the Team

March 13, 2012

When beginning a new eDiscovery project, it's important to start by estimating the various tasks that will need to be performed and the type of personnel that will be needed. As the project unfolds, the tasks required to complete it may change, so it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Yesterday, we began discussing the types of roles that could be associated with a typical eDiscovery project, here are some more:

Processing Personnel: After your team has identified and collected the ESI, it will usually be necessary to process that ESI with one or more software applications to prepare the data for searching and review to reduce or cull the data volume (such as an early case assessment tool like FirstPass®, powered by Venio FPR™) and limit review to the most highly relevant documents. There are several tools and/or service providers available to process your ESI; it’s simply a matter of selecting the best tool(s) for your organization. For each case, key decision makers on the team will need to evaluate the specific needs of that case to determine whether additional software or an outside vendor is needed and select the appropriate software to license and/or vendor to engage, if so.

Document Review Personnel: After identifying, collecting and processed the ESI, it needs to be reviewed by qualified review personnel to at least determine if it is responsive to the production request from opposing counsel and if it should be withheld due to a claim of privilege. Depending on the case, the ESI may need to be reviewed for other reasons or the review for responsiveness and/or privilege may be more in-depth. Usually, the reviewers are licensed attorneys; though, experienced paralegals are used in some cases. Either way, they will require training and guidance regarding the expectations of their job in general, receive instructions on the specific review project which they are working on, and be properly trained on use of the selected review application.

Hosting Provider: Depending on the case, you may use a hosting provider for the ESI from as early as collection through production. Large volume of ESI to be processed and reviewed, requirement to distribute review tasks across personnel who may be in different geographical locations, and the arrangements between the parties concerning the method and format of production are factors for deciding to use a hosting provider and also for selecting the desired provider.

Attorney(s): Did you think I forgot the attorneys? Of course, potentially complicated legal questions and issues arise in just about any discovery project, so you need an attorney who understands the legal rules and complexities associated with discovery of ESI. If the lead attorney doesn’t have the requisite knowledge in this area, it may be necessary to add an attorney with specialized eDiscovery knowledge to the team to provide advice and coordination on discovery issues. Many corporations have designated attorneys or paralegals on their in house legal staff who work on all eDiscovery matters; however, some organizations may also use outside eDiscovery counsel to work on discovery-related matters even if they’re not part of the firm representing the organization.

Each case will have unique requirements that affect the make-up and size of the team, so not all of the roles discussed over the past two days will be required for every case and the number of personnel in each role may also vary.

So, what do you think? Do you estimate the team members needed for your project before it begins? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

March 5, 2012

Often, the picture used to introduce the blog post is a whimsical (but public domain!) representation of the topic at hand. However, today’s picture is intended to be a bit instructional.

As we work with more data daily and we keep buying larger hard drives to store that data, one gigabyte (GB) of data seems smaller and smaller. Today, you can buy a portable 1 terabyte (TB) drive for less than $100 in some places. Is the GB smaller than it used to be? Last I checked, it’s still about a billion bytes (1024 x 1024 x 1024 or 1,073,741,824 bytes, to be exact).

From a page standpoint, most estimates that I’ve heard have estimated 1 GB to be 50,000 to 75,000 pages. Of course, that can vary widely, depending on the file types comprising that GB. A GB of 1 megabyte (MB) one-page, high-resolution image files will only take about 1,000 pages to equal a GB, whereas a collection of 5 kilobyte (KB) text file and small emails (with minimal attachments) could take as much as 200,000 pages to equal a GB. So, 50,000 to 75,000 is probably a good average.

A ream of copy paper is 500 pages and a case holds 10 reams (5,000 pages). So, a GB is the equivalent of 100 to 150 reams of paper (10 to 15 cases), which is enough paper to fill a small truck. Hence, today’s picture shows a truck full of paper.

There was a Gartner report that re-published Anne Kershaw’s analysis on the cost to manually review 1 TB of data. Quoting from the report, as follows:

“Considering that one terabyte is generally estimated to contain 75 million pages, a one-terabyte case could amount to 18,750,000 documents, assuming an average of four pages per document. Further assuming that a lawyer or paralegal can review 50 documents per hour (a very fast review rate), it would take 375,000 hours to complete the review. In other words, it would take more than 185 reviewers working 2,000 hours each per year to complete the review within a year. Assuming each reviewer is paid $50 per hour (a bargain), the cost could be more than $18,750,000.”

If it costs $18.75 million to review 1 TB, one could extrapolate that to approximately $18,750 to review each GB. Dividing by 1,000 (ignoring the 24), that extrapolates to: 75,000 pages / 4 = 18,750 documents / 50 documents reviewed per hour = 375 review hours x $50 per hour = $18,750. I’ve mentioned that figure to clients and prospects and they almost always seem surprised that the figure is so high. Then, I ask them how many hours does it take them to review a truckload of paper to determine relevancy to the case? 😉

Bottom line: each GB effectively culled out through technology (such as early case assessment, first pass review tools like FirstPass™, powered by Venio) can save approximately $18,750 in review costs. That’s why technology based assisted review approaches have become so popular and why it’s important to remember how expensive each additional GB can be.

So, what do you think? Did you realize that each GB was so large or so expensive? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

March 2, 2012

In Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion on last Friday (February 24), approving of the use of computer-assisted review of electronically stored information (“ESI”) for this case, making it likely the first case to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” As noted in our previous blog post about the case, the parties had been instructed to submit draft protocols by February 16th.

After providing a background of the Title VII gender discrimination case, Judge Peck went on to reference his article (Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?) to explain computer-assisted review. He then detailed the parties’ negotiation of an agreed protocol for the computer-assisted review for this case. The Court accepted the defendants’ proposal, which included seven iterative “seeding” reviews, but included the following caveat:

“But if you get to the seventh round and [plaintiffs] are saying that the computer is still doing weird things, it’s not stabilized, etc., we need to do another round or two, either you will agree to that or you will both come in with the appropriate QC information and everything else and [may be ordered to] do another round or two or five or 500 or whatever it takes to stabilize the system.”

The opinion also included a section entitled “Further Analysis and Lessons for the Future” in which several, more general topics surrounding computer-assisted review were addressed. Judge Peck recognized that “computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases” and noted that “[t]he goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the ‘value’ of the case” (referenced in the article Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, written by Maura R. Grossman & Gordon V. Cormack).

In his conclusion, Judge Peck noted:

“This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review. That does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review. Nor does this Opinion endorse any vendor … nor any particular computer-assisted review tool. What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to e-discovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases.”

For those in the industry yearning for case law that addresses the approved use of technology assisted review methodologies, Judge Peck’s in-depth discussion of the topic and conclusion appears to address that need. It will be interesting to see how this case continues and whether additional discussion of the methodology will be discussed in case filings!

So, what do you think? Is it high time for courts to recognize and approve computer-assisted review or is the court system still not ready for technology based approaches? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: Craig Ball of Craig D. Ball, P.C., Part Two

March 1, 2012

This is the seventh (and final) of the 2012 LegalTech New York (LTNY) Thought Leader Interview series. eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
Which trend(s), if any, haven’t emerged to this point like you thought they would?
What are your general observations about LTNY this year and how it fits into emerging trends?
What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball. A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 750 presentations and papers. Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com.

Our interview with Craig had so much good information in it, we couldn’t fit it all into a single post. Yesterday, we published part one. Enjoy the rest of the interview!

What are your general observations about LTNY this year and how it fits into emerging trends?

Well, I've been coming to Legal Tech for well over a dozen years and ,each year, I think it couldn't possibly become more an eDiscovery conference (as opposed to a general forensic technology conference). Then, next year, the aisles seem to grow longer and deeper with people providing eDiscovery solutions.

So I'm just blown away. I used to toil in this fairly obscure corner of the practice, and it’s now, literally, this whole event. Walk down these aisles with me, and you'll see it's just one person after another after another offering some kind of eDiscovery tool or service or related product. That’s also true of the educational sessions – some of which I guiltily helped plan, so the focus on eDiscovery does not come as much of a surprise. But, remember that the vendors who sponsor these tracks have a hand in the content as well, and they’re the ones insisting, “We want to talk about eDiscovery. We want to talk about technology-assisted review.”

It's not just because of what they're selling, although, certainly that’s a driver. It's also what they want to hear about. It's what their customers want to know more about.

So, is it inconsistent that I'm saying there's not enough education about eDiscovery, and yet here, they talk of little else? Other than LegalTech, and a few other events, the need remains to go longer and deeper. Understanding information technology is a necessity for litigators. That’s where the evidence lives. IT is a discipline as broad, deep and complex in its way as the law. Why then do we expect it should require so much less a dedication of time and effort to become even minimally proficient in information technology than it was to learn the law?

What are you working on that you’d like our readers to know about?

For me, this is the year of trying to offer an earlier acquaintance in information technology to lawyers. I've spent almost thirty years teaching lawyers and judges about forensic technology and helping them get their arms around it. This year, I returned to teaching law students. My e-discovery course is offered at the University of Texas School of Law and I’m trying to help the students appreciate that in a very difficult job market, entering the profession with a practical understanding of how to attack an eDiscovery effort is a distinguishing factor in trying to find and keep employment. It's a crucial skill set, and it's not one they can expect will be handed down to them from older lawyers.

There's just simply no lore to hand down where eDiscovery is concerned, at least not much useful lore. And so I'm gratified for the challenge, and it's very hard work. It's much harder to teach law students than it is to teach lawyers for a host of reasons. The challenge in teaching law students versus lawyers is giving them the crucial context. Most haven’t much exposure to law practice, so you have to give them more information and explain much more of what you take for granted with lawyers.

Moving forward this year, I'm also trying to find ways to do more testing of new tools and refine mechanisms for reducing the volume of electronic information, to help lawyers master strategies that will make it easier for them to hit the ground running and take advantage of some of the economies that are within easy reach. The key is to educate them on “methods” more than “shortcuts”. I want to show them techniques that they can apply with confidence to speed the process of identification and preservation, as well as help them apply a better and more precise working vocabulary to enable them to communicate with clarity and confidence about ESI. Competent communication, even more than cooperation, will prove a major contributor to eliminating headaches in eDiscovery.

Thanks, Craig, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Craig Ball of Craig D. Ball, P.C.

February 29, 2012

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
Which trend(s), if any, haven’t emerged to this point like you thought they would?
What are your general observations about LTNY this year and how it fits into emerging trends?
What are you working on that you’d like our readers to know about?

Our interview with Craig had so much good information in it, we couldn’t fit it all into a single post. So, today is part one. Part two will be published in the blog tomorrow!

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

Well, I see several things happening. I'm gratified that people are starting to become more resigned to the obligation to pursue eDiscovery. I think we're seeing some better practices, particularly with respect to preservation.

The preservation message is hitting home. Whether it’s a function of the outsize fear factor prompted by sanctions decisions or whether lawyers and businesses are becoming better informed by virtue of education and dialogue like that here at LegalTech is hard to say. Regardless, I think the message is starting to seep through that there are things you must do early on to identify electronically stored information and be sure that it's properly preserved.

As I walk around the show and listen to the programs, I'm amazed by all discussion of Technology Assisted Review or TAR—maybe the worst acronym that industry’s come up with since ECA. But, they didn't choose Super Human Information Technology, so I guess we should be thankful for small blessings. I'm sure we'll soon an article mentioning TAR and feathers.

Technology Assisted Review is the use of more sophisticated algorithms—math–and advanced analytic to take replace or supplement the individualized judgment of lawyers' respecting the responsiveness, non-responsiveness and privileged character of documents and data sets. The notion behind TAR is that we don't need legions of young associates or contract lawyers in darkened rooms staring at screens; instead, the broad distinctions between what is most likely to be relevant and what is not will be handled robotically. It’s floated as a more palatable, more affordable alternative to poorly-chosen key words thrown at massive data volumes–a more intelligent, more intuitive tool that does the job in a way that’s no worse than human beings, hopefully somewhat better, and in any case, for a lot less money. That is the dream, and it’s coming closer to a reality..

But the realization out there is spotty. Expectations are unrealistic and marketing is overheated, but we are seeing some enthusiasm amidst the skepticism. And, I think that trend is certainly going to continue, at least as a marketing trend whether it continues as a successfully-integrated technology or not. For the moment, it’s an option only for those with big budgets, not the rank and file firm. No surprises there, as eDiscovery has yet to become a process lawyers know how to manage cost-effectively, But they will learn, in time. Clients, courts and malpractice carriers will leave no option but to learn it.

Which trend(s), if any, haven’t emerged to this point like you thought they would?

Oh, that's an easy one. That's education. I am appalled at the dearth of high-caliber educational options available to lawyers in this crucial and very costly corner aspect of the practice. E-discovery education is still afflicted by the scourge of the one-hour CLE. You know, where some earnest person’s trotted out for 30, 45 minutes, maybe an hour of introduction to electronic discovery. That continuing, repeated, cursory treatment of this challenging area is what’s supposed to make us confident and competent. It doesn't even begin to scratch the surface.

Lawyers are still not learning enough about the information infrastructure of their clients. They're picking up a few buzz words. I’ll see it some meet-and-confers. It's like watching a little kid use a curse word. This sort of smile creeps across their face when they’ve managed to work the word “metadata” into the conversation. As though using the term is a talisman–a substitute for actually knowing what they're talking about.

I don't mean to be so dismissive, but it's really gets almost that absurd sometimes. We don't have enough education. We don't have enough lawyers starting to get it. Most channel their energy and ingenuity into look for reasons why they don’t need to know this stuff. The handful that really do want to learn have precious few places to go short of self-instruction. We need to change that.

We need a Manhattan Project in this country to help rescue the experienced lawyers and bring them up to speed. We need a sort of reset, getting all trial lawyers talking about these topics in an intelligent, productive, and perhaps most importantly of all, cost-effective way.

Thanks, Craig, for participating in the interview!

To the readers, just a reminder to stay tuned for part two of our interview with Craig tomorrow! And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Ralph Losey of Jackson Lewis, LLP, Part Two

February 28, 2012

This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series. eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm's National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world.

Our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post. Yesterday was part 1. Here's the rest of the interview!

Are there any other key trends you see? Is there anything else interesting in terms of the trends you see here at LegalTech, at least as far as the curriculum goes?

[Interviewed the first morning, before the show began] In all candor, the show hasn't begun yet, so I haven't seen anything. I'm doing four presentations on predictive coding and one with Craig Ball, which I'm looking forward to. I hope I don't suffer too bad of a public humiliation by Master Ball.

But, you know, the keynote speech that's getting ready to start is on ethics, and I see a lot of ethics in the curriculum. I'm pleased by that. I do lecture a lot on eDiscovery ethics, and I think it comes down to fundamentally what we are doing with discovery. Are we, as legal practitioners, willing to stop playing “hide the ball”, stop all this nonsense and waste of money, and get down to actually finding the key facts and getting them out there quickly? That's always been my attitude, but I was lucky – I was brought up in a firm that really put ethics first and money second. But, there are a lot of people out there for which money's first, and ethics is a gray area.

Ethics is not a gray area. We're supposed to try and get the case resolved and save money for our clients. That's rule one. Just do it speedy and inexpensively. A lot of lawyers, say, “yeah, right” and that's how they make a living. Well, shame on them.

You don’t make a living by exploiting your clients. You make a living by winning cases, and sometimes the best way to win a case is to settle it when you realize the facts are against you – not to try to change the facts or hide the facts. So that's ethics. Most clients want ethical lawyers like that.

What are you working on that you’d like our readers to know about?

I'm doing a lot of law firm training. I do that internally and, since my current law firm specializes in labor and employment only, we're not really a competitor to most law firms. So, we actually can offer a service to help train other law firms in eDiscovery.

I'm also now doing a lot of training for our corporate clients. We represent Fortune 500 type companies, and it's important for those companies to be prepared for eDiscovery. Now that we’re coming out of the recession, companies can spend the money needed to get ready for litigation and eDiscovery that they put off before, because of other priorities. Companies are now saying “I want to finally get my e-mail retention policy in order. I want to figure out how to get a litigation hold implemented in my company without causing all kinds of disruption and chaos and confusion and expense.”

It just takes preparation. It takes time. The fundamental way to do that is to set up your own internal team, eDiscovery team. That's one of the main ideas that I've been talking about for six years now when I started my blog, e-Discovery Team®, is the joint approach of people working together. Get the IT people, the law people and the management people working together as teams for – in this case – litigation readiness.

It can cost a fair amount of money to do it right. But, if you spend $100,000 now to get ready and get your systems in order, you can save yourself millions later on and also save yourself the embarrassment of making a mistake, of being found out to be a spoliator. There are plenty of examples where it makes sense to spend a little money up front to save more money down the road. So, I want to encourage companies to think about that, whether they use me or somebody else. There are a number of attorneys that provide those services, and it's money well spent. Pay me a little bit now or pay me a lot later.

Ten years ago, when Cisco was probably the first company in the country to form their own eDiscovery team, it was after they faced hundreds of investor law suits. They found that by forming their own eDiscovery team, they reduced their litigation expenses by 90 percent because most of their litigation expenses were related to eDiscovery. While I'm not promising you'll save 90 percent like Cisco did, I am saying it's a well-established fact that spending a little money up front to prepare will help you save costs in the long run.

I'd also like point out to people the other program that I've developed, which I call eDiscovery team training. And you'll also find that on the web, at e-Discovery Team Training. I took what I had developed in law school in teaching eDiscovery to law students for the past three or four years, and I developed an online program with the University of Florida, School of Law. With their permission, I developed my own private version of that, which is actually much longer and harder than what I taught to law students. Law students had to take it in two months.

So, I've developed a program that built on that, which you can take up to two years to complete. It's 75 hours of work to go through the training program and it's all online. It has homework assignments at the end for additional reading and presents different essays, hypertext-type writings and videos. It takes advantage of the power of online education, which I really think is more the future than these expensive, face-to-face education programs, like we have at LegalTech.

There are still a few events that I'll go to each year (like LegalTech and the Sedona Conference), and then I'll train inside corporations or in my own law firm. The fact that most lawyers aren't doing eDiscovery is not because they're trying to do anything wrong or hide the truth. They simply don't know how. And if you teach them how to do it, they'll do it. This is against a lot of vendors' models – they would rather serve a nice fish dinner. I'm more into teaching people how to fish so that they can feed themselves, and that's what I go around trying to do.

Thanks, Ralph, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Ralph Losey of Jackson Lewis, LLP

February 27, 2012

This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series. eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post. So, today is part one. Part two will be published in the blog tomorrow!

Many people are saying that 2012 is the year of technology assisted review. What do you think needs to happen for that to come true?

Well, many things. First of all, we need to have better training for lawyers so that they'll know how to use the technology. If you bring an advanced computer to anyone, they're going to need some kind of instruction on how to use it. You have to have people trained to use the tools. That's very important and I spend a lot of time focusing on training in my firm and around the country to other attorneys and bar groups. The tool alone really can't do much or help you unless you fit in the use of it into a larger, legal methodology.

In other words, just bringing in technology in itself doesn't answer any questions. It may answer some, but it doesn't give you the answers you need in order to use it in your practice.

I'm a legal practitioner. I've been practicing law, for, I guess about 32 years now. So, that's how I look at technology – as tools to practice law and represent clients. And, the truth is most people don't know how to use predictive coding yet, so we're going to have a training and learning curve like you do with any new technology.

Vendors also need to start bringing the prices down so that it's more affordable and make it accessible to a large number of attorneys, rather than just a few attorneys that can afford to handle it in large cases. I've been complaining about this to vendors for a while now. The good news is I think that they're listening. I'm beginning to see prices come down and I think this trend will continue. It's in their own best interest to do that because in the long run, they are going to be more successful in bringing this technology to attorneys and making money for their companies if they look at more of a large scale, larger volume, lower profit as opposed to making larger amounts of profit and fewer projects.

I think most of the vendors are receptive to that. The reason they probably just don't jump on it right away is the demand isn’t there yet. Build it and they will come. But, they're only coming in small numbers. When they're only coming in small numbers in order to pay for their business, they have to charge a lot.

So, it's a circle. It comes back again to training. An educated consumer will want this. I want this. I like it, and I want it affordable.

Do you think that it's just merely a matter of bringing prices down? Or is it being creative in how you price differently?

Well, it's both. The bottom line is always the bottom line, but it’s important to get there in a way that's win-win for both the consumer (law firms and corporate law departments) and for the provider. So, there needs to be creative solutions. As a result, I think people are now “putting on their thinking caps” and coming up with new ways to price solutions because there are different needs. I have my own ideas on how I want to use it, and so I want people to price accordingly. I don't want there to be a “one-size-fits-all” type of solution. I think the vendors are hearing that, too.

You had a recent blog post about bottom line proportional review and you noted that the larger cases have a lot at stake, so the budget is much higher. How does it work for smaller cases?

It's going to take a legal method, and I think that the method I described (bottom line proportional review) is the way to make it happen. In order to make bottom line driven review (where you're basically setting a budget up front) to be acceptable to the requesting party, they're going to want to make sure that this isn't just another way to “hide the ball”. They're going to want to make sure that they can find the relevant evidence that they need to evaluate their case to either see that they've got a winning case (so they can move for a summary-judgment, establish a strong settlement position, or go to trial) or see that they have a weak case and value it accordingly.

We all want to find out as quickly as possible how good a case it is. We really don't want to spend all of our time and money just doing discovery. The whole point of discovery is to discover how good your case is and then resolve it.

I'm very oriented to resolving cases. That's really most of my life. I wasn't an eDiscovery lawyer most of my career. I was a trial lawyer, and I think that perspective is lacking from some of the vendors and some of the analysts and some of the other people in eDiscovery. People seem to think discovery is an end in itself. It's not. It's just a way to prepare for trial.

So, there is no reason to get all of the relevant evidence. That's an archaic notion of the past. There's too much relevant evidence. All that counts is the important relevant evidence. The smoking guns are what counts. The highly relevant or hot documents are what counts.

You do have to wade through some relevant documents to get there, but the point is to get there. It gets back to my “seven plus or minus two” rule. It's not my rule. It's an old rule of persuasion. That's never going to change. People are never going to remember more than seven documents at a trial. They just can't. The juror's mind is not capable of it.

Lawyers can handle probably several hundred exhibits, and they can keep it in their head. But, they don't make the decisions. And, the several hundred exhibits are merely predicates or evidentiary foundations in order to get the key exhibits out there that you then use in your closing argument.

The point of discovery and litigation is to identify and locate these key documents. When you understand that, then you'll accept and understand the fact that you don't need all relevant information, all relevant documents. You just need the most highly relevant documents so that you can feel pretty confident you've got the handful of documents you need to try the case.

The thing that’s exciting about predictive coding is its ranking abilities. You don't have to look at the junk that's not really that relevant. You only look at the most relevant documents, whether it’s the most relevant 5,000, 50,000 or 100,000. Whatever it is that's appropriate to your size case. You're not going to look at 100,000 documents in a $250,000 dollar discrimination case. It makes no sense.

That's where you get back to proportionality. It's a somewhat long answer to your question, but people need to understand that this isn't a way to hide the truth. It's really a way to get the truth out there in an efficient, economic manner.

So, based on the five dollar per document review cost example in your post, if you have $25,000 to spend, you can review the top 5,000 documents, right?

That's right. And the five dollars is just like a working number that you use. Some document collections can be even more expensive and difficult. For example, a collection with a lot of 20-page spreadsheets (where you actually determine what's confidential and what's not in each sheet) can drive that number up. Banking cases are a nightmare. You've got all this financial information, where some of it's relevant and some of it's not. For other cases, it can be a lot cheaper. But, you also have to take some vendor claims with a big grain of salt. “Oh, I'll do your whole thing for you for a buck a document.” Will you? Really? What does that include?