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Brad Jenkins of CloudNine: eDiscovery Trends

This is the first of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Brad Jenkins of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation technology arena. Brad also has authored several articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!  :o)

What are your general observations about LTNY this year and how it compared to other LTNY shows that you have attended?

Again this year, LTNY seemed reasonably well attended.  Thankfully, we didn’t have the weather and travel issues that we had the past few years, so that probably helped boost attendance.  And, the Hilton Lobby Lounge was back this year, so that provided an additional location to meet, though most of our meetings were in our suite.  Though I was really busy and didn’t get much chance to attend sessions, I understand that they were very good as always.  I did notice a drop in the number of exhibitors again this year and the exhibit hall did seem to be less crowded.  One colleague of mine who exhibited indicated that the number of leads he received at the show dropped about 30 percent from last year, so that’s consistent with my own observations and those of my colleagues.

For me, LTNY has become as much about the meetings with colleagues and business partners as it is about the show itself.  CloudNine had meetings practically booked throughout the show, with various people including industry analysts, partners and potential partners and clients and prospects.  Because it is the biggest show of the year, most people in the industry attend, so it’s an ideal opportunity to meet face to face and move business relationships along further.  Sometimes, there is just no substitute for in-person meetings to further business relationships and to communicate your message to other business colleagues.

What about general industry trends?  Are there any notable trends that you’ve observed?

Certainly one trend that I have noticed, as others have certainly noticed, is the accelerated consolidation within our industry within the provider community and the growth of investment of outside venture capital firms in our industry.  Just in the past couple of months, we have seen Huron Legal acquired by Consilio (which received a major investment from Shamrock Capital Advisors a few months before that), Millnet acquired by Advanced Discovery, Orange Legal acquired by Xact Data Discovery and Kiersted Systems acquired by OmniVere.  Rob Robinson does a terrific job of tracking mergers, acquisitions and investments in our industry and, according to his list, there have been eleven significant acquisitions and investments in just the past three months!

Another noticeable trend in the industry is the clear trend toward automation within eDiscovery.  You wrote about it earlier this year and, like you, I believe that the age of automation is here.  Some have dismissed the term “automation” as a marketing term, but I can’t think of a better term to describe the transformation of tasks that used to require a high degree of manual intervention and supervision to a point where little, if any, human involvement is necessary.  We’ve seen it for years through automation of review with technology assisted review techniques such as clustering and predictive coding and we have begun to see use of some artificial intelligence techniques on the information governance side.  Now, we are seeing automation of the processing of data to get it into a review platform and cloud-based providers (including CloudNine) automating that process.

Having been in the legal technology industry for many years, I have really seen an evolution of technology offerings in the marketplace.  At the beginning, I saw applications that were originally developed for other purposes being adapted for eDiscovery and those solutions were incomplete.  As the market developed, there started to be applications that were specifically designed for eDiscovery and those solutions were an improvement, but they were designed for isolated processes, such as collection or processing or review, with no automation of tasks.  The next generation of solutions were designed for eDiscovery and designed for task integration, but still adapted for task automation – some of those are the most popular solutions in the market today.  The new solutions – the “fourth generation” technology offerings are not only designed for eDiscovery and designed for task integration, they’re designed for task automation as well.

Many people say that if you want to tell where an industry is heading, follow the money.  In the past several months, you’ve seen providers like Logikcull and Everlaw that emphasize automation receive significant capital investments and, just before LTNY, you saw Thomson Reuters announce a new platform where automated processing is a key component.  It’s clear that big money is being invested in the growing automation sector of the industry.  You can get on the bus, or you can get run over by the bus.  As a provider that has been committed to simplified eDiscovery automation for several years now, CloudNine is on the bus and we feel that we have an excellent “seat” on that bus and are well positioned to help usher eDiscovery into the automation age.

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

Well, since I was just talking about fourth generation technology solutions, it seems appropriate to discuss how CloudNine has gotten to the point where we are in that evolution.  About 3 1/2 years ago at CloudNine, we looked at our legacy platform that had been in place since the early 2000s and was on version 14.  Our clients were happy with the platform overall, but we realized that if we were going to stay competitive as the market evolved, our legacy platform wasn’t going to be able to support those future needs.  So, we made the decision to almost completely start from scratch and re-develop our platform from the ground up, using the latest technology with an eye toward a truly simplified eDiscovery automation approach.  The platform that you see today via the user interface is just the tip of the iceberg of the overall solution – behind it is a series of workflows to accomplish various tasks.  For example, there are 34 distinct workflows (our CTO and co-founder Bill David calls them “cascading buckets“ that enable the workflows to scale) just in our Discovery Client application that enables clients to upload and process data into our CloudNine review platform.  This modularized approach of putting together re-usable workflows enables us to both scale and adapt as needed to meet changing client needs and positions us well for the future.

We feel that CloudNine is the leader in simplifying eDiscovery automation.  We do this through what we call the 4 S’s: Speed, Simplicity, Security and Services.  Clients, even brand new clients, can be up and running in five minutes (Speed) through their ability to sign up for their own account and upload and process their own data.  We recently had a brand new client who signed up for an account, uploaded and processed 27 GB of Outlook PST files (which amounted to over 300,000 emails and attachments) and culled out nearly two-thirds of the collection via HASH deduplication and irrelevant domain culling – all within 24 hours without ever having to speak to a CloudNine representative!  The ease of use (Simplicity) of the platform through the wizard-based client application for uploading data and a browser independent review module enables our clients to get up to speed with no more than an hour (or less) of training required.

Our approach to Security is unique as well – we operate within a protected cloud, not a public cloud, where the clients know that their data will be located on our servers in a Tier IV data center that is located 5 minutes from our offices.  This data center hosts data for nine of the top Fortune 20 corporations and was instrumental in us being selected over a year ago by a Fortune 150 corporation to host their data.  Finally, what makes us unique are the Services that we provide to support the software and automation – in addition to the software that we provide to help automate the eDiscovery process, we also provide managed services ranging from forensic collection to data conversion to technical advice and eDiscovery best practices and managed document review.  This enables our clients to rely on one provider for all of their services needs – as opposed to software-only providers that would have to outsource those services to a third party.

We believe that the combination of Speed, Simplicity, Security and Services enables CloudNine to provide the simplified eDiscovery automation approach that our clients want.  It’s an exciting time in our industry and CloudNine is excited to be forefront in its continued evolution, as we have been for the last 13 years!

Thanks, Brad, 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!

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

Dispute Over Adequacy of Defendant’s Production Leads to Court Ordered Meet and Confer: eDiscovery Case Law

In Gardner et. al. v. Continental Casualty Company, No. 13-1918 (D. Conn., Jan. 13, 2016), Connecticut Magistrate Judge Joan Glazer Margolis, granting the plaintiff’s motion to compel in part, ordered the parties to meet and confer regarding “’sampling and iterative confinement’ or ‘quick peek protocol’ of the 38,000 documents ‘hit’ by the agreed upon search terms and notify the court in writing “about their progress, or lack thereof, on or before February 12, 2016.”

Case Background

In this class action for violations of Connecticut’s Unfair Trade Practices Act, the parties agreed (after some negotiation) to a list of search terms from the e-mail of twenty-three custodians, which resulted in a return of approximately 38,000 documents.  However, after the defendant reviewed these documents for relevancy and privilege, it produced only 2,214 pages, of which 274 pages consisted of copies of the complaints, with exhibits, filed in the lawsuit.

The plaintiffs filed a Motion to Compel, arguing that the defendant “cherry-picked” the produced documents and called the production “incomplete and inadequate”, citing to four documents where they contended that the defendant redacted or omitted “highly relevant” materials.  The defendant countered that it had provided the plaintiffs with extensive discovery over twenty-two months, including 16,800 pages of documents and indicated that it “spent significant resources reviewing the 38,000 documents identified as the result of the search term process,” and provided their own justification for the redactions in the four documents mentioned by the plaintiffs.

The plaintiffs responded that they did not accept the defendant’s “just trust us” approach to relevancy, that “the entire exercise of agreeing on search terms was to avoid a prolonged and detailed debate over what ESI documents are `responsive’ to the discovery requests”, that ESI production based on search term hits only “is a common discovery practice ordered by courts,” and that documents provided by LTCG (the defendant’s third-party claims administrator) were far more comprehensive and informative than those provided by the defendant, confirming that the defendant’s “ESI production is woefully deficient.”

Judge’s Ruling

In considering the plaintiff’s motion, Judge Margolis stated that the “position taken by plaintiffs is simply untenable – defendant is not obligated to turn over all 38,000 documents, after a review eliminates some on the basis of privilege…As every law school student and law school graduate knows, when performing a computer search on WESTLAW and/or LEXIS, not every case responsive to a search command will prove to be relevant to the legal issues for which the research was performed. Searching tens of thousands, and hundreds of thousands, of electronic documents is no different. The Court shares, however, plaintiffs’ legitimate concern that LTCG produced different, and obviously relevant, documents that were not provided by defendant itself.”

To attempt to have the parties resolve the dispute themselves, Judge Margolis ordered that “counsel shall confer further regarding variations of two approaches discussed in the Strauch Ruling — ‘sampling and iterative refinement’ or ‘quick peek protocol’ – of the 38,000 documents ‘hit’ by the agreed upon search terms, and shall notify the Magistrate Judge, in writing, about their progress, or lack thereof, on or before February 12, 2016.”  As for the four redacted documents in dispute, Judge Margolis ordered the defendant to forward unredacted versions “for her in camera review, to determine if defendant’s redactions were appropriate or overbroad with respect to those four documents”.

So, what do you think?  Was that a reasonable resolution to the dispute or should the court have ruled one way or the other?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

2015 eDiscovery Case Law Year in Review, Part 3

As we noted yesterday and Tuesday, eDiscovery Daily published 89 posts related to eDiscovery case decisions and activities over the past year, covering 72 unique cases!  Yesterday, we looked back at cases related to disputes about discovery, eDiscovery cost reimbursement and issues related to privilege and confidentiality assertions.  Today, let’s take a look back at cases related to cooperation issues, social media and mobile phone discovery, technology assisted review and the first part of the cases relating to sanctions and spoliation.

We grouped those cases into common subject themes and will review them over the next few posts.  Perhaps you missed some of these?  Now is your chance to catch up!

COOPERATION

Why can’t we all just get along?  There were several instances where parties couldn’t agree and had to kick issues up to the court for resolution, here are four such cases:

Judge Shows Her Disgust via “Order on One Millionth Discovery Dispute”: In Herron v. Fannie Mae, et al., DC District Judge Rosemary M. Collyer issued an order titled “Order on One Millionth Discovery Dispute” where she decided that “[c]ontrary to its usual practice, the Court will rule immediately, in writing” on the latest discovery disputes between the plaintiff and defendant.

Court’s “New and Simpler Approach to Discovery” Identifies Search Terms for Plaintiff to Use: In Armstrong Pump, Inc. v. Hartman, New York Magistrate Judge Hugh B. Scott granted in part the defendant’s motion to compel discovery responses and fashioned a “new and simpler approach” to discovery, identifying thirteen search terms/phrases for the plaintiff to use when searching its document collection.

Court Agrees to Allow Defendant to Use Search Terms to Identify ESI to Preserve: In You v. Japan, California District Judge William Alsup granted the defendant’s motion to limit preservation of articles to those that contain one of several relevant search terms, as long as the defendant’s proposal was amended to include one additional term requested by the plaintiffs.

Court Orders Defendant to Supplement Data Used for Statistical Sampling: In United States ex rel Guardiola v. Renown Health, Nevada Magistrate Judge Valerie P. Cooke agreed with the relator’s contention that the data used to finalize the relator’s proposed statistical sampling plan was incomplete due to how data was identified within one of two billing systems used by the defendant. As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE” the additional data (and, yes, she used all caps).

SOCIAL MEDIA

Requests for social media data in litigation continue, so here are three cases related to requests for social media data:

Court Rejects Defendants Motion Seeking Limitless Access to Plaintiff’s Facebook Account: In the class action In re Milo’s Kitchen Dog Treats Consolidated Cases, Pennsylvania Magistrate Judge Maureen P. Kelly denied the defendants’ Motion to Compel Unredacted Facebook Data File and Production of Username and Password, disagreeing that the discovery of one highly relevant Facebook entry justified the defendants to be “somehow entitled to limitless access to her Facebook account”. Judge Kelly did order the plaintiff to produce previously produced redacted Facebook pages to the Court unredacted so that an in camera inspection could be conducted to confirm that the redacted information was truly privileged.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: In Burdette v. Panola County, Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

When Claiming Workplace Injury, Facebook Posts Aren’t Handy, Man: In the case In Newill v. Campbell Transp. Co., Pennsylvania Senior District Judge Terrence F. McVerry ruled on the plaintiff’s motion in limine on miscellaneous matters by allowing the defendant to introduce Facebook posts into evidence that related to the plaintiff’s physical capabilities, but not those that related to his employability.

TECHNOLOGY ASSISTED REVIEW

Believe it or not, we only covered one technology assisted review case last year, at least officially.  Though, we did at least cover it twice.  Here is the case:

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: In Rio Tinto Plc v. Vale S.A., New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”  Later on, Judge Peck assigned a well-respected industry thought leader as special master to the case.

SPOLIATION / SANCTIONS

I’ll bet that you won’t be surprised that, once again, the topic with the largest number of case law decisions related to eDiscovery are those related to sanctions and spoliation issues.  Of the 72 cases we covered this past year, 39 percent of them (28 total cases) related to sanctions and spoliation issues.  Sometimes requests for sanctions are granted, sometimes they’re not.  Here are the first ten cases:

Appeals Court Upholds Default Judgment Sanctions for Defendant’s Multiple Discovery Violations: In Long Bay Management Co., Inc. et. al. v. HAESE, LLC et. al., the Appeals Court of Massachusetts found that the default judge had not abused her discretion in ordering sanctions and assessing damages and ordered that the plaintiffs could submit a petition for appellate attorneys’ fees incurred in responding to the appeal.

Court Grants Defendants’ Motion to Exclude Plaintiff’s Use of Spoliation Evidence: In West v. Talton, Georgia District Judge C. Ashley Royal granted the defendants’ Motion in Limine to exclude all evidence and argument regarding spoliation, reserving its ruling on the remaining issues in the Motion in Limine.

Not Preserving Texts Results in Adverse Inference Sanctions for Plaintiff: In NuVasive, Inc. v. Madsen Med., Inc., California Chief District Judge Barry Ted Moskowitz granted the defendants’ motion for adverse inference sanctions for failure to preserve text messages from four custodial employees that were key to the case.

Court States that Duty to Meet and Confer is Not an “Empty Formality”, Denies Request for Sanctions: In Whitesell Corporation v. Electrolux Home Products, Inc. et. al., Georgia District Judge J. Randal Hall denied the plaintiff’s motion for sanctions against the defendant for identifying a deponent that (according to the plaintiff) had no particularized information regarding the defendant’s efforts to produce documents, stating that he was “unimpressed” by the plaintiff’s effort to confer on the matter and stating that the “duty-to-confer is not an empty formality”.

Despite Failure to Implement a Litigation Hold, Defendant Escapes Sanctions: In Flanders v. Dzugan et. al., despite the fact that the defendant failed to implement a litigation hold, Pennsylvania District Judge Nora Barry Fischer denied the plaintiff’s Motion for Sanctions alleging the defendants failed to preserve evidence relevant to the case, finding that the plaintiff “cannot show any evidence was actually lost or destroyed”, “cannot show that if evidence was lost or destroyed, it would have been beneficial to his case” and “[n]or can Plaintiff show bad faith”.

Court Denies Motion for Sanctions Against Veterinary Hospital for Spoliation of ESI: In Grove City Veterinary Service, LLC et. al. v. Charter Practices International, LLC, Oregon Magistrate Judge John V. Acosta concluded that the plaintiffs had not met their burden of showing they are entitled to sanctions for spoliation of evidence by deleting one of the veterinarian’s archived work emails.

Defendant Gets Summary Judgment, Not Dismissal, Due to Plaintiff’s Wiping of Hard Drive: In Watkins v. Infosys, Washington District Judge John C. Coughenour denied the defendant’s Motion for the Sanction of Dismissal but granted the defendant’s Motion for Summary Judgment against the plaintiff for spoliation of data due to her use of “Disk Wiping” software to delete ESI.

Court Rules that State Agency is Not Responsible for Emails Deleted via the Retention Policy of Another State Agency: In Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., New York Magistrate Judge Randolph F. Treece denied the plaintiff’s request for sanctions, stating that “that neither the individual Defendants nor their Attorney had a duty to preserve” the emails of the Deputy Secretary of Gaming and Racing to the President of the New York Racing Authority (“NYRA”).

Apparently, in Discovery, Delta is Not Ready When You Are and It Has Cost Them Millions: A few years ago, we covered a case law decision in the Delta/Air Tran Baggage Fee Antitrust Litigation, where Delta was ordered to pay plaintiff attorney’s fees and costs for eDiscovery issues in that litigation. Apparently, Delta’s difficulties in this case have continued, as they have been ordered this week to pay over $2.7 million in sanctions for failing to turn over ESI, to go along with more than $4.7 million in sanctions for earlier discovery violations.

Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: In Charvat et. al. v. Valente et. al., Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith.

Tomorrow, we will cover the remaining cases relating to sanctions and spoliation.  Stay tuned!

Want to take a look at cases we covered the previous four years?  Here they are:

So, what do you think?  Did you miss any of these?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Two Cases Regarding Overtime Pay for Contract Attorneys with Mixed Results: eDiscovery Trends

Last July, we covered a case where a contract review attorney filed a lawsuit demanding overtime pay from law firm Skadden, Arps and legal staffing agency Tower Legal Solutions, alleging that the highly managed review work that he performed should not be considered the practice of law because he was not required to exercise any legal judgment.  That case and one other have concluded (pending appeal) with mixed results.

In the first case, the plaintiff, David Lola, on behalf of himself and all others similarly situated, filed the case as a Fair Labor Standards Act collective action against Skadden, Arps and Tower Legal Staffing.  He alleged that, beginning in April 2012, he worked for the defendants for fifteen months in North Carolina, working 45 to 55 hours per week and was paid $25 per hour for document review.

The defendants moved to dismiss the complaint, arguing (among other things) that Lola was engaged in the practice of law as defined by North Carolina law, and was therefore an exempt employee under FLSA.  The district court granted the motion, but the appellate court vacated the judgment of the district court and remanded the matter for further proceedings, stating that “we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants”.

Last month, the parties settled their lawsuit for a fraction of their “maximum liquidated damages,” according to a letter the plaintiff’s attorney (D. Maimon Kirschenbaum) wrote to the judge.  Tower paid $75,000 according to a settlement agreement that was attached to the letter, filed in U.S. District Court in Manhattan last month.  So, the plaintiffs received at least some compensation in this case.

In the other case, a Federal judge ruled that William Henig, a lawyer doing document review work for Quinn Emanuel Urquhart & Sullivan (and represented by the same plaintiff’s attorney – Kirschenbaum – as the Lola case) wasn’t entitled to overtime pay because he was using legal judgment.

Henig had claimed he did not exercise legal judgment while reviewing about 13,000 documents for about two months in 2012 (making $35 an hour) while working as a temporary contract lawyer for Quinn Emanuel to determine relevance to a discovery request.  In making his ruling, Southern District Judge Ronnie Abrams stated “Not all of [mass document review] is law at its grandest but all of it is the practice of law. Mr. Henig was engaged in that practice.”  We’ll see if Henig chooses to appeal and has any success (like Lola did).  As for plaintiff’s attorney Kirschenbaum, you win some, you lose some… :o)

So, what do you think?  Are document reviewers practicing law?  If not, should they be entitled to overtime pay?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Organize Your Collection by Message Thread to Save Costs During Review: eDiscovery Best Practices

This topic came up recently with a client, so I thought it was timely to revisit…

Not only is insanity doing the same thing over and over again and expecting a different result, but in eDiscovery review, it can be even worse when you do get a different result.

One of the biggest challenges when reviewing electronically stored information (ESI) is identifying duplicates so that your reviewers aren’t reviewing the same files again and again.  Not only does that drive up costs unnecessarily, but it could lead to problems if the same file is categorized differently by different reviewers (for example, inadvertent production of a duplicate of a privileged file if it is not correctly categorized).

There are a few ways to identify duplicates.  Exact duplicates (that contain the exact same content in the same file format) can be identified through hash values, which are a digital fingerprint of the content of the file.  MD5 and SHA-1 are the most popular hashing algorithms, which can identify exact duplicates of a file, so that they can be removed from the review population.  Since many of the same emails are emailed to multiple parties and the same files are stored on different drives, deduplication through hashing can save considerable review costs.

Sometimes, files are exact (or nearly exact) duplicates in content but not in format.  One example is a Word document published to an Adobe PDF file – the content is the same, but the file format is different, so the hash value will be different.  Near-deduplication can be used to identify files where most or all of the content matches so they can be verified as duplicates and eliminated from review.

Another way to identify duplicative content is through message thread analysis.  Many email messages are part of a larger discussion, which could be just between two parties, or include a number of parties in the discussion.  To review each email in the discussion thread would result in much of the same information being reviewed over and over again.  Instead, message thread analysis pulls those messages together and enables them to be reviewed as an entire discussion.  That includes any side conversations within the discussion that may or may not be related to the original topic (e.g., a side discussion about lunch plans or did you see The Walking Dead last night).

CloudNine’s review platform (shameless plug warning!) is one example of an application that provides a mechanism for message thread analysis of Outlook emails that pulls the entire thread into one conversation for review in a popup window.  By doing so, you can focus your review on the last emails in each conversation to see what is said without having to review each email.

With message thread analysis, you can minimize review of duplicative information within emails, saving time and cost and ensuring consistency in the review.

So, what do you think?  Does your review tool support message thread analysis?   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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

If You Play “Tag” Too Often, You Might Find Yourself Playing “Hide and Seek”: eDiscovery Best Practices

If you’ve used any review tool, you’re familiar with the “tag” field to classify documents.  Whether classifying documents as responsive, non-responsive, privileged, or applicable to any of a number of issues, you’ve probably used a tag field to simply check a document to indicate that the associated characteristic of the document is “true”.  But, if you fall in love with the tag field too much, your database can become unmanageable and you may find yourself playing “hide and seek” to try to find the desired tag.

So, what is a “tag” field?

In databases such as SQL Server (which many review platforms use for managing the data associated with ESI being reviewed), a “tag” field is typically a “bit” field known as a yes/no boolean field (also known as true/false).  As a “bit” field, its valid values are 0 (false) and 1 (true).  In the review platform, the tag field is typically represented by a check box that can simply be clicked to check it as true (or click again to turn it back to false).  Easy, right?

One of the most popular features of CloudNine’s review platform (shameless plug warning!) is the ability for the users to create their own fields – as many as they want.  This can be useful for classifying documents in a variety of ways – in many cases, using the aforementioned “tag” field.  So, the user can create their fields and organize them in the order they want to make review more efficient.  Easy, right?

Sometimes, too much of a good thing can be a bad thing.

I have worked with some clients who have used tag fields to classify virtually everything they track within their collection – in some cases, to the extent where their field collections grew to over 200 data fields!!  Try finding the data field you need quickly when you have that many.  Not easy, right?  A couple of examples where use of the tag field was probably not the best choice:

  • Document Types: I have seen instances where clients have created a tag field for each type of document. So, instead of creating one text-based “DocType” field and populating it with the description of the type of document (e.g., Bank Statements, Correspondence, Reports, Tax Documents, etc.), the client created a tag field for each separate document type.  For clients who have identified 15-20 distinct document types (or more), it can become quite difficult to find the right tag to classify the type of document.
  • Account Numbers: Once again, instead of creating one text-based field for tracking key account numbers mentioned in a document, I have seen clients create a separate tag field for each key account number, which can drive the data field count up quite a bit.

Up front planning is one key to avoid “playing tag” too often.  Identify the classifications that you intend to track and look for common themes among larger numbers of classifications (e.g., document types, organizations mentioned, account numbers, etc.).  Develop an approach for standardizing descriptions for those within text-based fields (that can then effectively searched using “equal to” or “contains” searches, depending on what you’re trying to accomplish) and you can keep your data field count to a manageable level.  That will keep your game of “tag” from turning into “hide and seek”.

So, what do you think?  Have you worked with databases that have so many data fields that it becomes difficult to find the right field?   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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Here are a Few Common Myths About Technology Assisted Review: eDiscovery Best Practices

A couple of years ago, after my annual LegalTech New York interviews with various eDiscovery thought leaders (a list of which can be found here, with links to each interview), I wrote a post about some of the perceived myths that exist regarding Technology Assisted Review (TAR) and what it means to the review process.  After a recent discussion with a client where their misperceptions regarding TAR were evident, it seemed appropriate to revisit this topic and debunk a few myths that others may believe as well.

  1. TAR is New Technology

Actually, with all due respect to each of the various vendors that have their own custom algorithm for TAR, the technology for TAR as a whole is not new technology.  Ever heard of artificial intelligence?  TAR, in fact, applies artificial intelligence to the review process.  With all of the acronyms we use to describe TAR, here’s one more for consideration: “Artificial Intelligence for Review” or “AIR”.  May not catch on, but I like it. (much to my disappointment, it didn’t)…

Maybe attorneys would be more receptive to it if they understood as artificial intelligence?  As Laura Zubulake pointed out in my interview with her, “For years, algorithms have been used in government, law enforcement, and Wall Street.  It is not a new concept.”  With that in mind, Ralph Losey predicts that “The future is artificial intelligence leveraging your human intelligence and teaching a computer what you know about a particular case and then letting the computer do what it does best – which is read at 1 million miles per hour and be totally consistent.”

  1. TAR is Just Technology

Treating TAR as just the algorithm that “reviews” the documents is shortsighted.  TAR is a process that includes the algorithm.  Without a sound approach for identifying appropriate example documents for the collection, ensuring educated and knowledgeable reviewers to appropriately code those documents and testing and evaluating the results to confirm success, the algorithm alone would simply be another case of “garbage in, garbage out” and doomed to fail.  In a post from last week, we referenced Tom O’Connor’s recent post where he quoted Maura Grossman, probably the most recognized TAR expert, who stated that “TAR is a process, not a product.”  True that.

  1. TAR and Keyword Searching are Mutually Exclusive

I’ve talked to some people that think that TAR and key word searching are mutually exclusive, i.e., that you wouldn’t perform key word searching on a case where you plan to use TAR.  Not necessarily.  Ralph Losey continues to advocate a “multimodal” approach, noting it as: “more than one kind of search – using TAR, but also using keyword search, concept search, similarity search, all kinds of other methods that we have developed over the years to help train the machine.  The main goal is to train the machine.”

  1. TAR Eliminates Manual Review

Many people (including the New York Times) think of TAR as the death of manual review, with all attorney reviewers being replaced by machines.  Actually, manual review is a part of the TAR process in several aspects, including: 1) Subject matter knowledgeable reviewers are necessary to perform review to create a training set of documents for the technology, 2) After the process is performed, both sets (the included and excluded documents) are sampled and the samples are reviewed to determine the effectiveness of the process, and 3) The resulting responsive set is generally reviewed to confirm responsiveness and also to determine whether the documents are privileged.  Without manual review to train the technology and verify the results, the process would fail.

  1. TAR Has to Be Perfect to Be Useful

Detractors of TAR note that TAR can miss plenty of responsive documents and is nowhere near 100% accurate.  In one recent case, the producing party estimated as many as 31,000 relevant documents may have been missed by the TAR process.  However, they also estimated that a much more costly manual review would have missed as many as 62,000 relevant documents.

Craig Ball’s analogy about the two hikers that encounter the angry grizzly bear is appropriate – the one hiker doesn’t have to outrun the bear, just the other hiker.  Craig notes: “That is how I look at technology assisted review.  It does not have to be vastly superior to human review; it only has to outrun human review.  It just has to be as good or better while being faster and cheaper.”

So, what do you think?  Do you agree that these are myths?  Can you think of any others?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Keyword Searching Isn’t Dead, If It’s Done Correctly: eDiscovery Best Practices

In the latest post of the Advanced Discovery blog, Tom O’Connor (who is an industry thought leader and has been a thought leader interviewee on this blog several times) posed an interesting question: Is Keyword Searching Dead?

In his post, Tom recapped the discussion of a session with the same name at the recent Today’s General Counsel Institute in New York City where Tom was a co-moderator of the session along with Maura Grossman, a recognized Technology Assisted Review (TAR) expert, who was recently appointed as Special Master in the Rio Tinto case.  Tom then went on to cover some of the arguments for and against keyword searching as discussed by the panelists and participants in the session, while also noting that numerous polls and client surveys show that the majority of people are NOT using TAR today.  So, they must be using keyword searching, right?

Should they be?  Is there still room for keyword searching in today’s eDiscovery landscape, given the advances that have been made in recent years in TAR technology?

There is, if it’s done correctly.  Tom quotes Maura in the article as stating that “TAR is a process, not a product.”  The same could be said for keyword searching.  If the process is flawed within which the keyword searches are being performed, you could either retrieve way more documents to be reviewed than necessary and drive up eDiscovery costs or leave yourself open to challenges in the courtroom regarding your approach.  Many lawyers at corporations and law firms identify search terms to be performed (and, in many cases, agree on those terms with opposing counsel) without any testing done to confirm the validity of those terms.

Way back in the first few months of this blog (over four years ago), I advocated an approach to searching that I called “STARR” – Search, Test, Analyze, Revise (if necessary) and Repeat (also, if necessary).  With an effective platform (using advanced search capabilities such as “fuzzy”, wildcard, synonym and proximity searching) and knowledge and experience of that platform and also knowledge of search best practices, you can start with a well-planned search that can be confirmed or adjusted using the “STARR” approach.

And, even when you’ve been searching databases for as long as I have (decades now), an effective process is key because you never know what you will find until you test the results.  The favorite example that I have used over recent years (and walked through in this earlier post) is the example where I was doing work for a petroleum (oil) company looking for documents that related to “oil rights” and retrieved almost every published and copyrighted document in the oil company with a search of “oil AND rights”.  Why?  Because almost every published and copyrighted document in the oil company had the phrase “All Rights Reserved”.  Testing and an iterative process eventually enabled me to find the search that offered the best balance of recall and precision.

Like TAR, keyword searching is a process, not a product.  And, you can quote me on that.  (-:

So, what do you think?  Is keyword searching dead?  And, 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Should Contract Review Attorneys Receive Overtime Pay?: eDiscovery Trends

Whether they should or not, maybe they can – if they’re found NOT to be practicing law, according to a ruling from the Second U.S. Circuit Court of Appeals.

According to a story in The Posse List (Contract attorney lawsuit against Skadden Arps can proceed, appeals court says; case could enable temporary lawyers hired for routine document review to earn extra wages), the Second U.S. Circuit Court of Appeals vacated the judgment of the district court and remanded the matter for further proceedings, ruling that a lawsuit demanding overtime pay from law firm Skadden, Arps and legal staffing agency Tower Legal Solutions can proceed.

The plaintiff, David Lola, on behalf of himself and all others similarly situated, filed the case as a Fair Labor Standards Act collective action against Skadden, Arps and Tower Legal Staffing.  He alleged that, beginning in April 2012, he worked for the defendants for fifteen months in North Carolina, working 45 to 55 hours per week and was paid $25 per hour. He conducted document review for Skadden in connection with a multi-district litigation pending in the United States District Court for the Northern District of Ohio. Lola is an attorney licensed to practice law in California, but he is not admitted to practice law in either North Carolina or the Northern District of Ohio.

According to the ruling issued by the appellate court, “Lola alleged that his work was closely supervised by the Defendants, and his entire responsibility . . . consisted of (a) looking at documents to see what search terms, if any, appeared in the documents, (b) marking those documents into the categories predetermined by Defendants, and (c) at times drawing black boxes to redact portions of certain documents based on specific protocols that Defendants provided.’  Lola also alleged that Defendants provided him with the documents he reviewed, the search terms he was to use in connection with those documents, and the procedures he was to follow if the search terms appeared.

The defendants moved to dismiss the complaint, arguing that Lola was exempt from FLSA’s overtime rules because he was a licensed attorney engaged in the practice of law. The district court granted the motion, finding (1) state, not federal, standards applied in determining whether an attorney was practicing law under FLSA; (2) North Carolina had the greatest interest in the outcome of the litigation, thus North Carolina’s law should apply; and (3) Lola was engaged in the practice of law as defined by North Carolina law, and was therefore an exempt employee under FLSA.”

While the appellate court agreed with the first two points, it disagreed with the third.  In vacating the judgment of the district court and remanding the matter for further proceedings, the appellate court stated in its ruling:

“The gravamen of Lola’s complaint is that he performed document review under such tight constraints that he exercised no legal judgment whatsoever—he alleges that he used criteria developed by others to simply sort documents into different categories. Accepting those allegations as true, as we must on a motion to dismiss, we find that Lola adequately alleged in his complaint that he failed to exercise any legal judgment in performing his duties for Defendants. A fair reading of the complaint in the light most favorable to Lola is that he provided services that a machine could have provided.”

A link to the appeals court ruling, also available in the article in The Posse List, can be found here.

So, what do you think?  Are document reviewers practicing law?  If not, should they be entitled to overtime pay?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

“Da Silva Moore Revisited” Will Be Visited by a Newly Appointed Special Master: eDiscovery Case Law

In Rio Tinto Plc v. Vale S.A., 14 Civ. 3042 (RMB)(AJP) (S.D.N.Y. Jul. 15, 2015), New York Magistrate Judge Andrew J. Peck, at the request of the defendant, entered an Order appointing Maura Grossman as a special master in this case to assist with issues concerning Technology-Assisted Review (TAR).

Back in March (as covered here on this blog), Judge Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, titling his opinion “Predictive Coding a.k.a. Computer Assisted Review a.k.a. Technology Assisted Review (TAR) — Da Silva Moore Revisited”.  Alas, as some unresolved issues remained regarding the parties’ TAR-based productions, Judge Peck decided to prepare the order appointing Grossman as special master for the case.  Grossman, of course, is a recognized TAR expert, who (along with Gordon Cormack) wrote Technology-Assisted Review in E-Discovery can be More Effective and More Efficient that Exhaustive Manual Review and also the Grossman-Cormack Glossary of Technology Assisted Review (covered on our blog here).

While noting that it has “no objection to Ms. Grossman’s qualifications”, the plaintiff issued several objections to the appointment, including:

  • The defendant should have agreed much earlier to appointment of a special master: Judge Peck’s response was that “The Court certainly agrees, but as the saying goes, better late than never. There still are issues regarding the parties’ TAR-based productions (including an unresolved issue raised at the most recent conference) about which Ms. Grossman’s expertise will be helpful to the parties and to the Court.”
  • The plaintiff stated a “fear that [Ms. Grossman’s] appointment today will only cause the parties to revisit, rehash, and reargue settled issues”: Judge Peck stated that “the Court will not allow that to happen. As I have stated before, the standard for TAR is not perfection (nor of using the best practices that Ms. Grossman might use in her own firm’s work), but rather what is reasonable and proportional under the circumstances. The same standard will be applied by the special master.”
  • One of the defendant’s lawyers had three conversations with Ms. Grossman about TAR issues: Judge Peck noted that one contact in connection with The Sedona Conference “should or does prevent Ms. Grossman from serving as special master”, and noted that, in the other two, the plaintiff “does not suggest that Ms. Grossman did anything improper in responding to counsel’s question, and Ms. Grossman has made clear that she sees no reason why she cannot serve as a neutral special master”, agreeing with that statement.

Judge Peck did agree with the plaintiff on allocation of the special master’s fees, stating that the defendant’s “propsal [sic] is inconsistent with this Court’s stated requirement in this case that whoever agreed to appointment of a special master would have to agree to pay, subject to the Court reallocating costs if warranted”.

So, what do you think?  Was the appointment of a special master (albeit an eminently qualified one) appropriate at this stage of the case?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.