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Another Instance Where Word is Not So Smart – eDiscovery Best Practices

Way back within the first couple of months after this blog was launched, we discussed those stupid “smart quotes” in Microsoft® Word where Word, by default, automatically changes straight quotation marks ( ‘ or ” ) to curly quotes as you type.  There’s another way where Word isn’t so smart, unless you know the workaround, which I just learned this week.

A couple of days ago, an unusual error was reported by one of the users of our review platform, OnDemand®.  She was putting text into a field in her database and when she went back to that same database record, the text was altered a bit, to say the least.  Here is what she was seeing (I’ll substitute a common typing sentence for her client proprietary text):

<span style=”font-size:11.0pt;line-height:115%; font-family:&quot;Calibri&quot;,&quot;sans-serif&quot;;mso-ascii-theme-font:minor-latin;mso-fareast-font-family: Calibri;mso-fareast-theme-font:minor-latin;mso-hansi-theme-font:minor-latin; mso-bidi-font-family:&quot;Times New Roman&quot;;mso-bidi-theme-font:minor-bidi; mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:AR-SA”>The quick brown fox jumped over the&nbsp; <b><span style=”color:red”>lazy dog.</span></b></span>

What a mess!  Did you spot the sentence “The quick brown fox jumped over the lazy dog.” in there?  Wasn’t easy, was it?  Important text was bolded in red, so I simulated that by putting the last two words bolded in red as well.

It turns out that she was copying text from a Word document and pasting it into the Web form for the database field.  It would look fine when she pasted it, but when she exited the database and logged back in (and returned to the specific record where she entered the text), the web form displayed all of the formatting that went with the text that she had copied.  As often as people copy text from Word documents, I’m surprised the issue hasn’t come up before.

What to do?  Copying the text to a plain text editor (like Notepad or Textpad) first would work as it would strip all of the formatting from the text.  Copying the text from the text editor and then pasting it into the field gives you the text without the formatting.  It’s a two-step process that I’ve used for years to copy text out of Word sans the formatting.

However, I learned a one-step approach from one of our OnDemand developers that I didn’t know about before.  Instead of using Ctrl+V to paste text (after using Ctrl+C to copy it to the clipboard), use Ctrl+Shift+V to paste the text.  You’ll get the pasted text without formatting and avoid the mess you see above.  Thanks, Chris Maden!

So, what do you think? Do you have issues copying text from Word files?  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.

Predictive Analytics: It’s Not Just for Review Anymore – eDiscovery Trends

One of the most frequently discussed trends in this year’s annual thought leader interviews that we conducted was the application of analytics (including predictive analytics) to Information Governance.  A recent report published in the Richmond Journal of Law & Technology addresses how analytics can be used to optimize Information Governance.

Written by Bennett B. Borden & Jason R. Baron (who was one of our thought leaders discussing that very topic), Finding the Signal in the Noise: Information Governance, Analytics, and the Future of Legal Practice, 20 RICH. J.L. & TECH. 7 (2014) is written for those who are not necessarily experts in the field.  It provides a synopsis of why and how predictive coding first emerged in eDiscovery and defines important terms related to the topic, then discusses aspects of an information governance program where application of predictive coding and related analytical techniques is most useful. Most notably, the authors provide a few “early” examples of the use of advanced analytics, like predictive coding, for non-litigation contexts to illustrate the possibilities for applying the technology.  Here is a high-level breakdown of the report:

Introduction (pages 1-3): Provides a high-level introduction of the topics to be discussed.

A. The Path to Da Silva Moore (pages 3-14): Provides important background to the evolution of managing electronically stored information (ESI) and predictive coding (fittingly, it begins with the words “In the beginning”).  Starting on page 9, the authors discuss “The Da Silva Moore Precedent”, providing a detailed account of the Da Silva Moore case (our post here summarizes our coverage of the case) and also references other cases, as well: In re Actos (Pioglitazone) Products Liability Litigation, Global Aerospace Inc., et al, v. Landow Aviation, L.P., Kleen Products v. Packaging Corp. of America, EORHB, Inc. v. HOA Holdings and In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation.  Clearly, the past couple of years have provided several precedents for the use of predictive coding in litigation.

B. Information Governance and Analytics in the Era of Big Data (pages 15-20): This section provides definitions and important context for terms such as “big data”, “analytics” and “Information Governance”.  It’s important to have the background on these concepts before launching into how analytics can be applied to optimize Information Governance.

C. Applying the Lessons of E-Discovery In Using Analytics for Optimal Information Governance: Some Examples (pages 21-31): With the background of sections A and B under your belt, the heart of the report then gets into the actual application of analytics in different scenarios, using “True Life Examples” that are “’ripped from’ the pages of the author’s legal experience, without embellishment”.  These examples where analytics are used include:

  • A corporate client is being sued by a former employee in a whistleblower qui tam action;
  • A highly regulated manufacturing client decided to outsource the function of safety testing some of its products and a director of the department whose function was being outsourced, despite being offered a generous severance package, demanded four times the severance amount and threatened to go to the company’s regulator with a list of ten supposed major violations that he described in the email if he did not receive what he was asking for.
  • A major company received a whistleblower letter from a reputable third party alleging that several senior personnel were involved with an elaborate kickback scheme that also involved FCPA violations.
  • An acquisition agreement between parties contained a provision such that if the disclosures made by the target were found to be off by a certain margin within thirty days of the acquisition, the purchase price would be adjusted.

In each case, the use of analytics either resulted in a quick settlement, proved the alleged violations to be unfounded, or resulted in an appropriate adjustment in the purchase price of the acquired company.  These real world examples truly illustrate how analytics can be applied beyond the document review stage of eDiscovery.

Conclusion (pages 31-32): While noting that the authors’ intent was to “merely scratch the surface” of the topic, they offer some predictions for the end of the decade and note “expected demand on the part of corporate clients for lawyers to be familiar with state of the art practices in the information governance space”.  In other words, your clients are going to expect you to understand this.

The report is an easy read, even for novices to the technology, and is a must-read for anyone looking to understand more about applying analytics to Information Governance.  Bennett and Jason are both with Drinker Biddle & Reath LLP and are also co-chairs of the Information Governance Initiative (here is our recent blog post about IGI).

So, what do you think? Has your organization applied analytics to big data to reduce or eliminate litigation costs? 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.

Searching for Individuals Isn’t as Straightforward as You Think – eDiscovery Best Practices

I’ve recently worked with a couple of clients who proposed search terms for key individuals that were a bit limited, so I thought this was an appropriate topic to revisit.

When looking for documents in your collection that mention key individuals, conducting a name search for those individuals isn’t always as straightforward as you might think.  There are potentially a number of different ways names could be represented and if you don’t account for each one of them, you might fail to retrieve key responsive documents – OR retrieve way too many non-responsive documents.  Here are some considerations for conducting name searches.

The Ever-Limited Phrase Search vs. Proximity Searching

Routinely, when clients give me their preliminary search term lists to review, they will always include names of individuals that they want to search for, like this:

  • “Jim Smith”
  • “Doug Austin”

Phrase searches are the most limited alternative for searching because the search must exactly match the phrase.  For example, a phrase search of “Jim Smith” won’t retrieve “Smith, Jim” if his name appears that way in the documents.

That’s why I prefer to use a proximity search for individual names, it catches several variations and expands the recall of the search.  Proximity searching is simply looking for two or more words that appear close to each other in the document.  A proximity search for “Jim within 3 words of Smith” will retrieve “Jim Smith”, “Smith, Jim”, and even “Jim T. Smith”.  Proximity searching is also a more precise option in most cases than “AND” searches – Doug AND Austin will retrieve any document where someone named Doug is in (or traveling to) Austin whereas “Doug within 3 words of Austin” will ensure those words are near each other, making is much more likely they’re responsive to the name search.

Accounting for Name Variations

Proximity searches won’t always account for all variations in a person’s name.  What are other variations of the name “Jim”?  How about “James” or “Jimmy”?  Or even “Jimbo”?  I have a friend named “James” who is also called “Jim” by some of his other friends and “Jimmy” by a few of his other friends.  Also, some documents may refer to him by his initials – i.e., “J.T. Smith”.  All are potential variations to search for in your collection.

Common name derivations like those above can be deduced in many cases, but you may not always know the middle name or initial.  If so, it may take performing a search of just the last name and sampling several documents until you are able to determine that middle initial for searching (this may also enable you to identify nicknames like “JayDog”, which could be important given the frequently informal tone of emails, even business emails).

Applying the proximity and name variation concepts into our search, we might perform something like this to get our “Jim Smith” documents:

(jim OR jimmy OR james OR “j.t.”) w/3 Smith, where “w/3” is “within 3 words of”.  This is the syntax you would use to perform the search in OnDemand®, CloudNine Discovery’s online review tool.

That’s a bit more inclusive than the “Jim Smith” phrase search the client originally gave me.

BTW, why did I use “jim OR jimmy” instead of the wildcard “jim*”?  Because wildcard searches could yield additional terms I might not want (e.g., Joe Smith jimmied the lock).  Don’t get wild with wildcards!  Using the specific variations you want (e.g., “jim OR jimmy”) is often best, though you should always test your terms (and variations of those terms) to maximize the balance between recall and precision.

Of course, there’s another way to retrieve documents that mention key individuals – through their email addresses.  We’ll touch on that topic next week.

So, what do you think?  How do you handle searching for key individuals within your document collections?  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.

Electronic Discovery Dispute Sees Court Requesting Cooperation from Both Parties to Avoid “Court-Ordered Middle Ground” – eDiscovery Case Law
 

In Fort Worth Employees’ Retirement Fund v. J.P. Morgan Chase & Co., No. 09 Civ. 3701 (JPO) (JFC), 2013 U.S. Dist. (S.D.N.Y. Dec.16, 2013), a complex discovery dispute arose during the process of this securities action lawsuit revolving around the defendants’ loan products and offerings with regards to a specific consumer class, in which the plaintiffs filed a motion to compel an expanded discovery.

Prior to the motion, the defendants had used approximately 80,000 search terms to produce discovery documents, which had yielded around 875,000 hits. The documents had not been turned over, as they were being reviewed for production. However, the plaintiffs argued that the defendants’ search terms were “woefully deficient” in filing the motion to compel. The specific request was for more search terms, more custodians, and an extended discovery time period in order to receive all relevant information.

Search terms already in use by the defendants included the names of the 9 securities offerings at issue within the lawsuit, the loan numbers for roughly 35,000 loans under review, CUSIP numbers assigned to more than 300 underlying certificates for the securities offerings, names and dates assigned to loan transactions, and the lead plaintiffs’ names, as well as their advisors. The defendants also used several abbreviations and variations for each term to uncover relevant electronically stored information (ESI) in which actual terms might have been truncated or modified.

In response to the motion to compel, the defendants stated the search terms were comprehensive. However, the plaintiffs complained that the number of documents was “‘actually minimal’ for a case of this size” and that the names and numbers used would turn up “just a few specific, narrow categories of information,” while excluding “broad categories of documents that do not specifically reference ‘a particular loan, loan pool or securitization in the text of the documentor e-mail’ but instead address general practices or concerns, such as ‘widespread abandonment of underwriting guidelines.’” The plaintiffs further cited the March 30, 2011, Order of the Honorable John G. Koeltl, U.S.D.J., claiming that “documents do not need to be specifically related to the loans and offerings at issue in this case to be relevant.”

The request by the plaintiffs asked that the defendants add a search protocol to incorporate “combinations of terms aimed at discovering relevant documents that are not loan specific,” to include terms like “the names of loan originators, due diligence firms, rating agencies, and ‘descriptors’ (such as ‘awful’ and ‘toxic’).” The defendants objected to the additional 116,000 proposed search terms as too broad and unduly burdensome, since its sampling indicated that the expanded terms would “yield an unreviewable pool of over 11 million documents.”

Magistrate Judge James C. Francis IV, after hearing the positions of both parties, found some truth in each side’s argument. While the plaintiffs had “provided sufficient justification for expanding search terms beyond numbers and names to ensure that the ESI search captures all of the relevant documents pertaining to the loans and offerings at issue,” the defendants would face “an unreasonable burden of production” using the plaintiffs’ proposed search terms, as they would be required to “sift through voluminous irrelevant documents added to the search results.”

In such disputes regarding discovery, a court-ordered middle ground is often supplied as a remedy. However, Judge Francis did not issue an order, stating that it would be “impractical and inappropriate” due to the “nature of this request and the complexities of crafting a search protocol.” Instead, the parties were urged to “reexamine their positions and work together in good faith to create a mutually acceptable ESI search regime.” Failing a cooperative agreement by both parties, a special master would be appointed to the case in order to recommend an appropriate search protocol, with the costs to be split between plaintiffs and defendants.

So, what do you think? Should defendants expect to produce a higher volume of electronic discovery documents in cases that are larger in scope? Is the possibility of general relevance to the issues before the court enough to expand the burden of eDiscovery for defendants? 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.

Ralph Losey of Jackson Lewis, LLP – eDiscovery Trends

This is the tenth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

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 Shareholder and the firm’s National e-Discovery Counsel. Ralph is also a prolific author of eDiscovery books and articles, the principal author and publisher of the popular e-Discovery Team® Blog, founder and owner of an online training program, e-Discovery Team Training, with attorney and technical students all over the world, founder of the new Electronic Discovery Best Practices (EDBP) lawyer-centric work flow model. Ralph is also the publisher of LegalSearchScience.com and PreSuit.com on predictive coding methods and applications.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

The presentation that I did at the show was called the “John Henry moment”, and I presented with Cliff Dutton, who is a technology expert at AIG (not an attorney, but an expert with technical processes in electronic discovery). The other panelist was Jason Baron (whose own thought leader interview from last week can be found here).  Cliff, Jason and I were examining at LegalTech what comes next after predictive coding.  What is the inevitable direction that technology is taking?  That was really the theme behind the “John Henry moment”.  A similar question was asked by other panels, but, and of course I’m prejudiced, I think our panel had some particularly good, unique insights.

Before I get into the answer that emerged from our panel, I will say that other panels were focusing on other parts of the technology world.  They were talking about things like data breach and privacy – those are two big issues that we’ve seen in the past, but they seem to be emerging even stronger than before and were big issues in the keynote speech.  It appears to be a surprise to some people that there is crime on the Internet.  Many of us are quite aware of that – I had to change my credit card just a couple of months ago.  So, data breaches, either on purpose by a hacker or unintentional through negligence, and data privacy are certainly big issues.

These were not the issues that Jason, Cliff and I talked about.  Instead, we were talking about the advancement into the second machine age.  This is something that has been discussed by the New York Times and also in a best-selling book called The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies.  It has to do with the application of ever more sophisticated computer algorithms that allow us to replicate what the human mind is capable of doing and to automate not just manual labor, but automate the mental labor of mankind.  Of course, what we’re focused on is its application to lawyers – what we lawyers do that can now be improved, enhanced and automated.

Now, in the past, the big discussion has been on predictive coding and this is certainly an example of the application of advanced computers and what is being called “analytics” –  taking big data and understanding the implications of big data.  Examples outside the law include Netflix, that takes your viewing history and tells you about a new movie they have that you’re going to like, and Amazon who takes you buying history and suggests books that you’re going to like.  They’ve both analyzed your data.  So, what we were discussing is how this concept will impact the law.  That’s really an important topic that our panel addressed that I had an opportunity to follow up on recently in my blog (that parodied the movie Minority Report, which had something called “pre-crime”), called “pre-suit”.  Not “pre-crime”, but “pre-suit”.  I’ve already (surprisingly) been able to get the URL for presuit.com and it discusses corporate counsel using what I call “smart data” to predict and prevent litigation before it happens.  That’s what our panel discussed and I think that’s really the next big thing (with all due respect to people that are focused by privacy and data breach issues).  So, I think the next big thing is to apply data analytics and the latest advancements in artificial intelligence to get a much better handle and control on litigation than we have today.

The idea behind “pre-suit” is essentially to win your next lawsuit before it’s even filed.  Jason Baron also recently wrote an article about it in Law Technology News (Escape From the Island of E-Discovery), which I didn’t know about when I wrote my article – he showed it to me the day of our panel session.  He talks about three examples of using data analytics for something other than predictive coding: the first two are data remediation for information governance purposes and records classification to, for example, classify and file your emails for you.  The third one he calls “bad conduct detection” – I call it the use of smart data to predict and prevent a cause of action from occurring – basically, when employees within your company are doing something that could be a basis for a lawsuit.

He wrote about it in the article and, independently, I had the same idea I (at least I think I did – Jason is alleged to have mind control abilities!).  In my blog, I wrote about how this “pre-suit” concept will work and this isn’t based on science fiction, it’s based on technology that’s available today.  We have the technology to detect patterns of wrongful activity that are there.  In corporate email and text messages, we can detect when an employee may be harassing another employee.  It’s far more than just looking for certain words that should never be said in email, but also patterns so you can bring in an employee for counseling before damage is done, before a reputation is ruined or a lot of emotional harm happens and way before a complaint is filed by the victim.

So, this is really the next big thing – to stop lawsuits before they mature.  In other words, why should we depend on plaintiff’s counsel to come to the door of corporate counsel to let them know that they’ve found this group of employees in the company that have been discriminated against or are receiving wrongful treatment?  Find about it in advance and fix it yourself – much more effectively and much cheaper.  It’s essentially good citizenship for corporations to police their own activities rather than having outside attorneys find it and air their “dirty laundry” in a courtroom.  That’s the vision that our panel came articulated and that I think is the next big thing.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I wrote a blog post about it and I did predict that they would pass this year, but the level of controversy seems to be heating up at the last minute.  The commentary that Judge Scheindlin filed with the Rules Committee is just one indication that it’s escalating.  It’s very intense and it may be a closer question than I thought.  As I’ve written about it, my view is that some of these changes may not even be constitutional and that’s something that former Judge Ron Hedges believes – that some of the rules have gone too far in violating separation of powers, that the rules are going into substantive law.  I’m concerned how political the Federal Rules have become.  The judicial branch is supposed to be a separate branch of government, not part of the legislative branch.  So, I must say that I share Judge Hedges’ concerns on that and, even though I still think it will be approved, I am not pleased by how politicized the whole process has become..

Having said all of that, the reason that I’m not having the same emotional reaction that Judge Scheindlin and other commentators have had – on both the right and the left (frankly, this has become a liberal vs. conservative issue) – is that I don’t think it will have the profound impact that some people fear.  Ultimately, rules changes don’t change things as much as people expect them to do so.  Certainly, the 2006 rules changes didn’t lead to a huge impact, and regardless of what gets passed here, I don’t think it will have a huge impact either.  There is really a cultural change that is needed for eDiscovery to work right, rather than creating yet more rules that people can misunderstand and argue about.  In my opinion, we’re going to get more of a change by focusing on education, doing the kind of thing that you do, bringing the word to people so that they can understand what’s going on.  I think that does more good than creating more rules, especially when they’re particularly complicated rules.

One good result of the new rules is the emphasis on proportionality and cooperation.  I think those are good things, it doesn’t hurt to have them in the rules and that will encourage people to do what the rules already require – cooperate with each other and always have proportionality in mind.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

You pointed out the resources that are already there.  Do we need more and better resources?  I suppose.  And, I’ll still continue to work on that as, I’m sure, the other educational leaders that you’ve mentioned will do as well.  I think one of the most important new efforts to come on the scene is the one started by another Losey, Adam Losey, and his foundation IT-Lex.  That’s an educational foundation effort that is more oriented toward younger lawyers.  That is ultimately the answer.  Old fogies like me are going to retire and they just don’t want to learn.  They’re closed minded and, frankly, they’re getting more and more irrelevant every day.  We need to focus on the next generation and I’m really proud of Adam in how he’s doing a good job of carrying the torch on that.

I’m seeing this in my own family – first with my son Adam at Foley and now with his wife, my daughter-in-law, Catherine Losey who is now at Littler doing eDiscovery.  I can tell you that the next generation gets it and the hope is in the future.  I think you have to take a longer term view of things.  I tried cajoling lawyers my age into doing it and it doesn’t work, honestly.  In the book that I mentioned before, The Second Machine Age, delays like this in learning how to use technology have always been.  This is nothing new and it’s not unique to the legal industry.  It typically takes ten to twenty years for business or any general cultural activity to adapt to the new technology and figure out how to use it.

For people like me, it has been an exercise in patience because I’m ready to do everything yesterday.  But, the reality is that it will catch up, it’s starting to catch up and those of us who do know the technology needn’t despair that 98% of the bar still doesn’t know what we do.  That’s OK.  The number of people who do know will grow rapidly, particularly as people retire.  There are plenty of smart people my age who don’t get it, but they understand that they don’t get it, so they ask me to do it or they ask someone else who does get it to do it.  That is a fundamental ethical responsibility that good lawyers get.  Eventually, you’re going to have a field of specialists that focus on eDiscovery, especially complex artificial intelligence and other technology.  That’s how we will get at the truth.  There will be a specialty bar that other lawyers use who don’t do that.  But, right now, we’re still in a shakedown period.  We may see things speed up because of more eDiscovery malpractice cases – there have already been a few and there will be more.  And, competition will force the people that don’t get it out and allow opportunities for the next generation and the few in my generation that do get it.  Overall, I’m optimistic, because I don’t think there’s anything unique about lawyers to keep them from getting it; there are plenty of younger lawyers that do get it.  They are our future and I’m optimistic for that future.

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

Well, my online training program (e-Discovery Team Training) is still alive and well.  An encouraging sign is that we’re starting to have smaller firms signing up four, five or even six attorneys and paralegals.  So, I will keep eDiscovery Team Training in place as a cheaper, intro level, A to Z, course about eDiscovery for people that can’t afford to take the more expensive courses.  It’s an inexpensive alternative for people who do want to learn, that want to remain relevant and that understand that, in today’s world, it’s all about constant training, re-training and learning.

As for the more advanced training that I provide, I find that you can’t teach predictive coding just by writing and I’ve written maybe 35 essays on the subject.  I find it’s much more effective for me to teach it the good-old fashioned way – the way that Abe Lincoln learned law – with a one-on-one apprenticeship.  In other words, I show my attorneys by doing.  With something as complicated as predictive coding, coming in and consulting and actually helping lawyers do it is more effective than writing about it.  But, with the simple intros to eDiscovery, the writing is still effective, so I’ll keep on doing that too. I’ll keep writing on the advanced topics too, but with the understanding that many of the methods of predictive coding are too complex to teach my words alone.

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!

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.

Jason R. Baron of Drinker Biddle & Reath LLP – eDiscovery Trends

This is the eighth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Jason R. Baron.  An internationally recognized speaker and author on the preservation of electronic documents, Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice.  Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration (NARA) and as trial lawyer and senior counsel at the Department of Justice.  He was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context.  He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

I think that it was clear, not only to me but to many other attendees that I spoke with at the show, that there was a greater focus and attention this year on Information Governance.  It’s the new black.  You saw that especially in the educational sessions.  Now my good friend Ralph Losey, in a recent posting on his brillilant blog e-Discovery Team®, referred in passing to the topic of Information Governance as “boring” – however, what I think he meant to say is that if Information Governance is simply viewed as the current buzzword for what constitutes electronic recordkeeping best practices, that would be unfortunate.  It’s a lot more profound than that.

In my view, the types of analytics that we use in eDiscovery for predictive coding have an important role in Information Governance as well.  The research that I had some role in, coming out of the TREC Legal Track, and subsequent articles by Maura Grossman, Patrick Oot and others, have all helped to crystallize what constitute best practices in the eDiscovery search and document review space.  But the knowledge that we have gained about analytics in these various research studies, as validated in recent court opinions like Da Silva Moore, are applicable to a much broader application than merely in eDiscovery practice.

That is to say, we can all be smarter about using analytical methods to solve lots of legal issues which arise outside of the narrow band of eDiscovery but inside the broader realm of Information Governance.  Ralph discussed this in a recent blog when he referred to the idea of using “presuit” analytics to predict and prevent lawsuits from happening in the first place.  Ralph’s column shows that he certainly gets it, and that I can count him in as a true believer in pre-litigation analytics being accomplished to lower corporate overall risk including the prevention of potential lawsuits.

So, the hottest topic at LegalTech was Information Governance and, as part of that discussion, a conversation about what best practices are from a technology perspective in the space.  What other trends  out there were noted?

Other themes at LegalTech that reflect trends specifically affecting legal and eDiscovery practice: First, it’s clear to us that the cloud is becoming a dominant paradigm for the storage of big data, and that we need to continue to understand how eDiscovery in particular can be optimized in cloud environments.  Second, there is increased attention to the notion of technological competence, in light of the amendments to the Model professional rules of responsibility, including the comment to Rule 1 about the need for attorneys to be technologically competent in keeping up with the law.  That comment certainly means something in the eDiscovery space.  Beyond those two, we saw a conversation about new technologies and new ideas that are happening and that need to be absorbed into the practice of law – for example, sessions on drones and sessions that noted the “Internet of things”.  In all sorts of ways, these various discussion threads show that there are a thousand different ways to collect data in the world, all of it is ESI and all of it needs to be factored in when we’re litigating cases and when we’re trying to govern the data that organizations hold.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

Well, my crystal ball tells me not to make predictions.  However, we’re now up to 700 comments in the last week leading up to the February 15, 2014 deadline for responding. [Editor’s note: over 2,000 comments were submitted by the actual deadline.]  Those comments are sharply divided between a community of plaintiffs’ counsel who question the necessity for rules change, and the defense bar, which at least a part of which strongly urges rules changes in the belief that the present rules encourage over-preservation of evidence, and that more in the way of limitations imposed on discovery should now be imposed.  So, that’s the battleground.  I think a good bet in the space is that the language that emerges is going to be much like the amendments currently proposed, but no one knows for sure.

My view about the amendments is a different one than what has been reflected in most of the comments, which I have put forward on behalf of the Information Governance Initiative (see below).  The view that I have is that there are aspects of the rules amendments that can be supported, and certainly Federal Rule of Civil Procedure 1 should be amended to incorporate the notion of parties cooperating.   However, what I believe to be of greater importance than rules change is a recognition on the part of the judiciary as well as all litigants that the volume and complexity of data is doubling every couple of years, and the technological environment is one that should include advanced tools to help remediate the severe challenges we all face in terms of the preservation of ESI. We live in a world of exponential growth of big data and we need to deal with that fact at a more foundational level than with rules changes for litigation.  So, I urge that we pay attention to both best practices as a matter of technology in the maintenance of big data in electronic systems, as well as continued education of the bench and bar on how to deal with this new reality — because we’re not going back to the 20th century.  The world of exabytes that we live in is only getting bigger and we have to deal with it.  In my mind, I’m attempting to carve out a middle ground where the rules debate is not as draconian or as starkly imagined as parties would reflect in the comments, but rather that we need to step back and ask more fundamental questions.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Every survey that I know of drives this point home, that there is a “bubble” that some of us practice in where we go from conference to conference, acting as if the 2006 rules amendments are “old hat,” whereas the concept of how to deal with ESI is something new and novel to many others.  So, there is a learning curve that exists where the greater part of the legal community needs to become better versed in the more advanced aspects of eDiscovery.  By now, everyone knows about email potentially being relevant evidence, but not very many people could step through a workflow on predictive coding.  Nor do they necessarily have to do so in a large swath of cases that, candidly, are not a candidate for the most advanced methods.  We need to apply some degree of proportionality analysis to competence and the level of competence that someone needs is dependent on the complexity of the case.  If there is giant litigation that involves billions of documents, then you really need to understand the technical issues at hand, and what questions to ask, to ensure that you’re using the most advanced and efficient search and document review methods.  On the other hand, if you have a case that is only a couple of hundred documents that is in state court or some local jurisdiction, then these more advanced methods are obviously not needed.

So, I think there is an aspect that you’re exactly right to point out, that this is all still new, and we are still maturing in mapping out defensible ediscovery practices in the post-2006 Rules amendment world. But, increasingly, as I have said, we live in a world of digital information.  Whether it’s a family law case involving the exchange of emails or an employment case or even a hit and run case involving GPS data, attorneys are necessarily finding that there cases do indeed involve aspects of discovery where digital or electronic evidence is material and important.  To that extent, all lawyers need to know something about how to preserve, how to collect, how to review and how to produce ESI.  It is clear to me as the years go by that the bar is getting raised in a greater and greater number of cases and that more and more lawyers need to be competent with respect to basic eDiscovery.

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

Here’s one thing I’m very excited about.  Bennett Borden, who is chair of the Information Governance and eDiscovery practice here at Drinker Biddle, and Barclay Blair, who runs the company ViaLumina and is a thought leader in the Information Governance space, have teamed up to found the Information Governance Initiative and invited me to act as Co-Chair.  The Initiative is a vendor-neutral industry consortium and think tank which has as its mission a goal of fostering discussion about best practices in the Information Governance space.  We have received a large outpouring of goodwill in the form of individuals joining up as members (it’s free to join, by the way), as well as corporate sponsors who have products and services that address IG issues.  And we hope through various platforms that there will be a better smarter dialogue about how to deal with the challenges of big data and Information Governance using many of the analytical methods that I alluded to earlier.  This is exciting to be part of and I’m delighted, after joining Drinker Biddle, to be able to work with Bennett, Barclay, as well as Jay Brudz and others, to attempt to provide some measure of thought leadership in this space.

I should note that there are other great organizations who are also putting on programs, including The Sedona Conference, which has put out a wonderful Commentary on Information Governance spearheaded by Sedona WG1 chair Conor Crowley, that’s freely available for download.  Sedona and ARMA have also teamed up to put on an information governance conference coming up in April 2014 in Florida.  These are all great to advance the ball.    Hopefully, all of our collective efforts will help to jump start serious conversations around optimizing IG.  For my part, I certainly would encourage individuals to look up the IG Initiative and participate in future activities. (See www.iginitiative.com.)

Thanks, Jason, 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 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.

Laura Zubulake, Author of “Zubulake’s e-Discovery” – eDiscovery Trends

This is the fourth of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Today’s thought leader is Laura Zubulake.  Laura worked on Wall Street for 20 years in institutional equity departments and, in 1991, authored the book The Complete Guide to Convertible Securities Worldwide. She was the plaintiff in the Zubulake vs. UBS Warburg case, which resulted in several landmark opinions related to eDiscovery and counsel’s obligations for the preservation of electronically stored information. The December 2006 amendments to the Federal Rules of Civil Procedure were influenced, in part, by the Zubulake case. In 2012, Laura published a book titled Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here and she speaks professionally about eDiscovery topics and her experiences related to the case.

What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?

As far as what I saw last week, there was an increase in focus on Information Governance over last year’s conference. There was also a continued interest in eDiscovery.  What I found particularly interesting is that some of the larger vendors put less emphasis on Information Governance than they did last year and more on eDiscovery this year. When I went to the vendor booths and talked to them about actual business, I got the sense that several have taken a step back from Information Governance and refocused their efforts on eDiscovery. I’m not saying this is the case with all of them, but several of them.  I was not able to find out a reason why, but I surmised from my conversations that monetizing, or creating a business around Information Governance has been difficult for some vendors. It seems they find it easier to generate business with eDiscovery.  This intrigued me.

I’m looking at it more from a business standpoint than a legal or a conference agenda standpoint. In other words, how are they actually making money in this industry? It’s still predominantly in eDiscovery, not Information Governance. I think part of that has to do with the state of the economy, which is not great and it’s difficult trying to get clients to buy certain services at this time. Information Governance is probably a tougher sell than certain technologies you have on the eDiscovery side.  This creates a real business opportunity.  Over time I think the focus will shift towards Information Governance.  Corporations will realize that eDiscovery is a subsector of Information Governance and that Information Governance is a more efficient and effective investment.

Other things that I did see at the show: clearly there was an emphasis on big data, which was expected. When I looked at the tracks, the topics included Risk and Compliance, eDiscovery, Information Governance and technology in general. This seemed to be a continuation of those topics from last year’s show – again except for Information Governance, where I did see an increased focus.

I was surprised that I didn’t see more attention in areas like healthcare, which I would have expected — given what’s going on in the country and given the planned to shift from ICD-9 to ICD-10. Although now I guess there’s a little bit of a debate about that. But, I would have thought that there would have been more emphasis on healthcare.  

As for a prediction for next year and the coming years, I think that healthcare is going to become a major focus – for Information Governance in particular.   To continue on this, it would be interesting to see other detailed sector analysis.  That is, how Information Governance (particularly in light of industry regulations) could affect the finance, utilities, and energy sectors.

I also think you’re going to see – and people have different names for this – more emphasis on applying algorithms to Information Governance and not just for eDiscovery. People use the term “predictive coding” to refer to applying algorithms to eDiscovery efforts and with Information Governance, some people call it “auto-classification.”  Essentially, it’s taking a macro view and using algorithms to help companies organize and manage their data, from the top down. So, I think you’ll start seeing more discussion on not just predictive coding for EDD, but also algorithms for Information Governance efforts.

I would say the “Internet of things” (I guess everybody has their own way to describe that) is going to become more of a focus as well. For example, Google recently purchased Nest. If you think of the implications of that, Google is going to have access to data within your home. So, I think as the “Internet of things” expands, that’s going to become more of a focus for Information Governance, eDiscovery and Risk and Compliance type issues.

Cyber security will be another trend, obviously. Security and privacy issues with regard to healthcare and the security of data at every level, whether it’s your home or business, will become increasingly important.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I contributed comments to the website. In fact, I sent my book to Senator Coons, who is in charge of the committee and I have been in contact with other individuals involved in the discussion.  I think it’s important for the decision makers to appreciate what it’s like for an individual to go through litigation. While no one wants to be in that situation, it can happen to anyone.  I’m not so sure the amendments will be approved this year — maybe by the end of this year or next year.  My personal concern is that most of what I’ve read about the debate has been dominated by the defense side.  I’m not sure that the plaintiff side has been thoroughly represented. That was the concern that I voiced when I added my comments to the website.  While I understand the business and cost implications of eDiscovery, I believe the plaintiff ‘s side needs to be properly represented in the talks. With regard to the nature of the proposals, restricting the number of depositions, having certain restrictions on time, etc., I think it’s going to make it more difficult for an individual to stand up for their rights, to actually take a stand.  

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery? Do you agree with that and, if so, what do you think can be done to improve the situation?

Generally, I agree. Based on what I’ve read, there appears to be a significant segment of the legal community that is not well informed. What do I think can be done to improve the situation? Obviously, continue to educate.   Unfortunately, I think that there are many people that won’t take the time to learn new things until they’ve been thrown into a situation and forced to learn. That’s sad, because eDiscovery has been around for so long now. It should really be part of the conversation. Law schools need to include it in their curriculum somehow so that all law students become familiar with it at some level. Also, perhaps requiring continuing education for lawyers solely dedicated to eDiscovery where they sit in classes instead of just attending a conference. When you have to take an exam and answer questions, that’s when you’re forced to learn something.

Thanks, Laura, 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 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.

Brad Jenkins of CloudNine Discovery – eDiscovery Trends

This is the first of the 2014 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders after LTNY this year (don’t get us started) and generally asked each of them the following questions:

  1. What significant eDiscovery trends do you see for 2014?
  2. With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?
  3. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 15 years leading customer focused companies in the litigation support arena. Brad also writes the Litigation Support Industry Blog, which covers news about litigation support and eDiscovery companies’ funding activities, acquisitions & mergers and notable business successes. He 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!

What significant eDiscovery trends do you see for 2014?

Well, I think that technology assisted review tools will continue to gain traction and the software will continue to make the review process more intuitive.  I think predictive coding software is evolving to provide real-time predicted relevance scores for the collection as each document is reviewed.  One of our partners, Hot Neuron, announced last month that Version 4.0 of their Clustify software, is the first technology-assisted review tool to offer real-time predictive coding.  I also think that the technology associated with predictive coding will be used more in other areas of the eDiscovery life cycle, particularly Information Governance.

Another trend, one that I discussed last year, is integration of “best of breed” cloud-based applications to make the discovery process more seamless. Our alliance with BIA and the integration of their TotalDiscovery legal hold and collection tool to our review application, OnDemand®, has continued to be used by our clients to support preservation through production.  BIA has tremendous expertise and software to support the left side of the EDRM model and it’s a logical fit for the services and software we provide from collection to production.  Personally, I believe that the “best of breed” integrated applications approach is a preferable alternative to a complete solution because it’s difficult to be an expert in all phases of discovery.

I also think that it’s more difficult than ever for the small to medium sized firm to compete with the big firm that has most of the attention from the eDiscovery vendor market and has more resources in house to manage their discovery workload.  Most small to mid-sized firms lack the core competency, the infrastructure, the project management expertise and the overall personnel in house to provide the full range of services that large corporate clients are demanding, especially for litigation support and discovery services.  More than ever, these firms will need to leverage virtual resources to compete and provide the level of services their clients expect.

With new amendments to discovery provisions of the Federal Rules of Civil Procedure now in the comment phase, do you see those being approved this year and what do you see as the impact of those Rules changes?

I don’t really have a prediction as to whether they will be approved this year.  I know there has been controversy with some of the proposed rules changes, especially Rule 37(e), regarding the level of culpability required to justify severe sanctions for spoliation and that Judge Scheindlin and others have criticized the rule.  I wouldn’t be surprised to see some changes to that rule before adoption.  Regardless, it seems like a lot of attorneys don’t follow the rules adopted back in 2006, so the rules will only be effective if attorneys adhere to those rules and courts hold them to those standards.

It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?

Yes, I agree.  We work with a lot of firms whose attorneys lack basic eDiscovery fundamentals.  In some cases, the managing partners know that and have been asking for us to provide seminars and webinars to educate them on eDiscovery best practices.  And, we have been providing more consulting than ever to attorneys to assist them with technical language in requests for production to ensure that they receive the most useful form of production such as native files with included metadata.

As for what can be done, I think it’s imperative for each provider to provide resources to educate their clients and the legal profession as a whole.  We do that with our blog, eDiscoveryDaily.  As we approach 300,000 lifetime hits and 1,000 lifetime posts, both of which we will reach later this year, I’m proud of the knowledge base that this blog has become.  This year, we are also looking to really ramp up CLE training for attorneys that want to become more comfortable with technology.  There are numerous other great blogs and resources out there too.  I think we have to keep pushing and keep finding ways to reach attorneys and give them useful resources that can simplify the discovery process, which is what we’re all about at CloudNine.

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

In addition to our continued integration success with BIA and our partnership with Clustify, we recently released a brand new version of our review application OnDemand® , called Universal OnDemand.  We called it “Universal” because we have re-designed it to work in any browser, so clients can use it whether they prefer Internet Explorer, Firefox, Google Chrome or even Safari on a Mac.  We will be working to expand the application to support use with tablets this year and, as always, working to add features requested by our clients, who are the primary drivers of our development priorities.

We have also been working on a new advanced program that we call the Virtual BIG Firm™ program.  It’s a unique package of the full range of services that we have provided for years, along with our OnDemand review platform, for mid-sized firms that want to compete with the big firms, but don’t have the personnel, infrastructure or expertise to make it happen.  We created our Virtual BIG Firm program based on our experience working with over one hundred law firms for more than eleven years.  Our Virtual BIG Firm program appeals to firms interested in growing their practice.  These firms value continuing legal education, technology advances and they feel comfortable delegating.  It’s not for everybody, so we continue to offer our basic services and software as we always have, but for the firm that has a significant litigation workload but not the resources to fully manage it effectively, it’s a program that provides those resources at a fraction of what big firms spend on personnel & technology.

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 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.

Dispute over Production Format and Search Terms for Electronic Discovery Highlights the Need for Cooperation – eDiscovery Case Law
 

In Saliga v. Chemtura Corp., No. 3:12cv832 (RNC), 2013 U.S. Dist. (D. Conn. Nov. 25, 2013), a discrimination case heard by Connecticut Magistrate Judge Donna F. Martinez, the plaintiff and the defendants had spent a year arguing over the format of production for Electronically Stored Information (ESI) to be used in discovery, as well as relevant search terms, before the plaintiff filed a motion to compel.

Prior to this motion, Judge Martinez had held a status conference and chastised both parties concerning the issue of cooperation, noting that discussions about ESI should begin early in the case under Rule 26(f), which requires that both parties confer in order to develop a discovery plan that addressed “any issues about disclosure or discovery of [ESI], including the form or forms in which it should be produced.” However, it was determined that given the current state of impasse, another meeting between parties would not reach a resolution, necessitating court intervention.

The format for production was the first matter addressed. Originally, the plaintiff had asked that the defendant produce emails for discovery in native format, which would contain application metadata and could also contain system metadata relevant to the litigation, such as file creation dates or the identity of the computer on which the email was created. The defendants’ objection stated that “standard practice is to produce ESI in searchable PDF or TIFF and there is ‘no basis or need’ to produce the emails in native format.”

However, the defendants did not claim any undue burden or expense with regards to the requested production format, nor did they offer a reason why they were unable to comply. Therefore according to Rule 34(b)(1)(c), which states that the requesting party, in this case the plaintiff, may “specify the form or forms in which electronically stored information is to be produced,” Judge Martinez ordered the defendant to produce the requested emails in native format.

The next issue addressed was a complaint by the defendant that two of the requests for production from the plaintiff were overly broad, and therefore unduly burdensome. The plaintiff listed 14 employees to search, and the defendant stated that search results for the employees’ emails yielded more than 925,000 hits. In addition, the complaint claimed this request was a duplicate of the plaintiff’s requested search terms, which caused similar problems.

Prior to the complaint, the parties had failed to agree on the search terms to be used, or how the search should proceed. The unresolved dispute necessitated Judge Martinez’s intervention, despite the fact that the court was “loath to decide the search terms to be used because the parties are far better positioned to do so.” In the discovery request, the plaintiff asked for the defendants to use 12 relevant words and phrases, variously combined with versions of the custodians’ names to create 37 search terms in total. The defendants objected to one of the 12 base search terms, “India Audit,” and claimed that inclusion of the custodians’ names would be “cumulative and unnecessary.”

Judge Martinez agreed that it would be “superfluous” to incorporate the names of the custodians into the search terms, but denied the defendants’ request to discard the contested search term “India Audit” and ordered that it be included.

Finally, the plaintiff’s request for information on the defendants’ data collection process was considered, in light of a letter the plaintiff had submitted to the defendants three months prior that contained “three pages of technical questions about the defendant’s system configuration, acquisition methods and data extraction” and told the defendant “not to produce any ESI discovery until the plaintiff was satisfied that her concerns and questions were resolved.” Judge Martinez rejected this request, stating that “the plaintiff’s questions may not impede the defendant’s production, which must take place immediately.” The plaintiff was advised to address the opposing counsel should she have any legitimate concerns about the procedures for data collection.

So, what do you think? Should the court step in to define search terms when both parties fail to agree on them? Should the plaintiff’s right to specify a production form for ESI supersede standard practices? 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.

Search Process for ESI Called into Question, but Court Denies Sanctions for Plaintiff – eDiscovery Case Law
 

In Brown v. West Corp., No. 8:11CV284, 2013 U.S. Dist. (D. Neb. Dec. 4, 2013), the plaintiff filed a motion to compel, claiming the defendant had been insufficient in its handling of searching for Electronically Stored Information (ESI) relevant to discovery. The plaintiff additionally contested a prior order from a magistrate judge, requiring the defendant to explain its search processes to the defendant. Ultimately, Nebraska Senior District Judge Lyle E. Strom denied the requested sanctions and rejected the challenge to the prior order.

The most recent motion saw the plaintiff asking for sanctions under Federal Rule of Civil Procedure 37(b), stating that the defendant failed to comply with the prior order, the purpose of which was stated to “lay bare the defendant’s search process and expose any deficiencies that might be a basis for plaintiff’s motion to compel a more stringent search of potentially relevant ESI for preservation.” In addition, the plaintiff asked that additional discovery be permitted.

However, the defendant had in fact complied with the prior order and explained its search processes regarding ESI, noting that its system did not permit a “‘global search’ of all electronic information in West’s possession.” The substance of the magistrate judge’s concerns regarding the prior order had concerned preservation of ESI, and not necessarily discovery requests. Judge Strom noted that the plaintiff had misinterpreted the prior order, and that the defendants had addressed concerns by “explaining the process by which West employees were directed to identify, preserve, and search potentially relevant materials.” Therefore, “the court finds no reason to require more from the defendant by way of evidence of a proper search.”

In the same motion and combined with the efforts to seek expanded discovery, the plaintiff raised two issues of spoliation. One that the defendant had erased the data of three potential custodians who had left the company, and two, that the defendant had failed to halt the automatic deletion of e-mail which may have been relevant to discovery.

Regarding these issues, Judge Strom once again rejected the contentions, stating that the defendant had repurposed the computers of former employees in apparent good faith, and as a regular business practice, “only after making a determination that all of the relevant information stored on those computers was preserved.” Additionally, the objection to automatic email deletion was dismissed because the plaintiff had not identified relevant emails or email categories that are “not subject to defendant’s preservation process or that have been deliberately destroyed in an attempt to thwart discovery.”

Finally, the plaintiff’s request to overturn the magistrate judge’s order that limited discovery to certain custodians was denied. Regarding Federal Rule 26(b), which states in part that requests for discovery should be limited due to “relevance and the balance between likely benefit and the burden on the producing party,” the magistrate judge had found nothing that would “suggest sufficient benefit [to the plaintiff] to warrant the expansive scope of the requested discovery” as outlined by the plaintiff. Such a scope, the magistrate judge felt, would be “grasping at the periphery by reviewing thousands or tens of thousands of emails,” and further that, “a few pointed questions in a deposition [would be] less burdensome.”

So, what do you think?  Should defendants be permitted to limit responses to discovery when producing ESI due to the limitations of their technology? 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.