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Predictive Coding is Officially Approved in First English Case: eDiscovery Case Law

Last month, in Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch), citing the landmark DaSilva Moore case (among other authorities), Master Matthews approved the use of predictive coding, due to the “enormous” expense of manually searching through the three million electronic documents associated with the case.  This is the believed to be the first time an English court has approved the use of predictive coding.

In this case, the parties, through several rounds of correspondence, “agreed on the (automated) method to be employed”, which “involves ‘predictive coding’”, and “also the scope of the keywords to be employed”.  Citing DaSilva Moore, Master Matthews referenced several comments in Judge Peck’s decision nearly four years earlier, including:

“The decision to allow computer-assisted review in this case was relatively easy – the parties agreed to its use (although disagreed about how best to implement such review). The Court recognises that computer-assisted review is not a magic, Staples-easy-Button, solution appropriate for all cases. The technology exists and should be used where appropriate, but it is not a case of machine replacing humans: it is the process used and the interaction of man and machine that the court needs to examine…The goal is for the review method to result in higher recall and higher precision than another review method, at cost proportionate to the ‘value’ of the case… Computer-assisted review appears to be better than the available alternatives, and thus should be used in appropriate cases.”

Master Matthews also referenced Irish Bank Resolution Corporation Ltd v Quinn, where the Irish High Court also endorsed the use of predictive coding.  In that case, the process was proposed by the plaintiffs and approved by the court over the objections by the defendants.

In approving the use of predictive coding in this case, Master Matthews provided these factors in favor of the decision {emphasis added}:

“(1)          Experience in other jurisdictions, whilst so far limited, has been that predictive coding software can be useful in appropriate cases.

(2)           There is no evidence to show that the use of predictive coding software leads to less accurate disclosure being given than, say, manual review alone or keyword searches and manual review combined, and indeed there is some evidence (referred to in the US and Irish cases to which I referred above) to the contrary,

(3)           Moreover, there will be greater consistency in using the computer to apply the approach of a senior lawyer towards the initial sample (as refined) to the whole document set, than in using dozens, perhaps hundreds, of lower-grade fee-earners, each seeking independently to apply the relevant criteria in relation to individual documents.

(4)           There is nothing in the CPR or Practice Directions to prohibit the use of such software.

(5)           The number of electronic documents which must be considered for relevance and possible disclosure in the present case is huge, over 3 million.

(6)           The cost of manually searching these documents would be enormous, amounting to several million pounds at least, hr my judgment, therefore, a full manual review of each document would be “unreasonable” within paragraph 25 of Practice Direction B to Part 31, at least where a suitable automated alternative exists at lower cost.

(7)           The costs of using predictive coding software would depend on various factors, including importantly whether the number of documents is reduced by keyword searches, but the estimates given in this case vary between £181,988 plus monthly hosting costs of £15,717, to £469,049 plus monthly hosting costs of £20,820. This is obviously far less expensive than the full manual alternative, though of course there may be additional costs if manual reviews still need to be carried out when the software has done its best.

(8)           The ‘value’ of the claims made in this litigation is in the tens of millions of pounds. In my judgment the estimated costs of using the software are proportionate.

(9)           The trial in the present case is not until June 2017, so there would be plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory.

(10)         The parties have agreed on the use of the software, and also how to use it, subject only to the approval of the Court.”

In approving the use of predictive coding in this case, Master Matthews also stated that “There were no factors of any weight pointing in the opposite direction.”  And, saving us the trouble of checking to see if there were any previous English cases that approved predictive coding, he noted that “a search of the BAILII online database for ‘predictive coding software’ returned no hits at all, and for ‘predictive coding’ and ‘computer-assisted review’ only the Irish case referred to above.”

In his blog, eDisclosure Information Project, Chris Dale (whose thought leader interview on this blog was published last Friday), posted his reaction to the decision and referenced several other blogs and publications with their coverage of the decision as well.

So, what do you think?  Will this case become the “DaSilva Moore” for English courts?  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.

Pete Feinberg of Consilio: eDiscovery Trends

This is the seventh 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 Pete Feinberg.  Pete is Senior Vice President of Product Strategy at Consilio, responsible for the overall product strategy and product management of Consilio’s products and services line.  Prior to joining Consilio, Pete ran marketing for the largest vertical of Blackboard – a Washington DC-based education technology company. Prior to that, Pete served as vice president in various product, partner marketing and eCommerce roles at a variety of B2B software and B2C eRetail companies in the Washington DC area. Pete’s specialties are in guiding product strategy, bringing new products and services to market, representing the voice of the client as an executive “client advocate”, and guiding the service delivery organization to engage with clients not as a vendor, but instead as a trusted advisor.

What are your general observations about LTNY this year?

For me, LTNY has always been about connecting with clients and prospective clients.  As we do so, we hearing about the challenges that people are having, and what they’re doing to tackle those challenges, and what we ought to be doing as a services provider to help them overcome those challenges.  In that regard, I think it has been a great LegalTech.

From my vantage point, it makes an awful lot of sense for those in the legal community to come in every two years to stay connected, understand the state of the technology in our industry, talk with people that you haven’t seen in a while and be a part of the innovation and evolution of our space.  From that perspective, it has been a very fulfilling LegalTech and I’ve had a lot of fun doing so.

At the end of the day, LegalTech or anything else we do is about connecting with our clients.  It’s about making sure that we have the opportunity to have that discussion.  If that discussion can happen in a large format, splashy booth – so be it.  If it can happen in other venues that are less expensive, that’s even better.  What’s important to us – and guides all that we do here at LTNY – is making sure that we have that discussion with our clients one way or another.  We’ll continue to recalibrate and figure out our best approach to LTNY as we go.

It seems like acquisition and investment in the eDiscovery market is accelerating, with Consilio being forefront in that acquisition and investment in the market.  Do you feel that we are beginning to see true consolidation in the market?

Our industry is reaching a plateau of maturity.  My history in the eDiscovery and legal space goes back three years, so I’ll echo what I’ve heard from those who’ve been in the space before I got here.  Those long-timers tell the story that there was a time when LegalTech was not always all about eDiscovery.  But right now, when you look around, it’s almost an eDiscovery event and other technology is more of a footnote.  That may be overstating it a bit, but let’s just say that eDiscovery providers are taking a dominant position in all of the major signage around the show and, if you look at all of the major booths on the exhibit floor, they all seem to be eDiscovery-oriented.

In the past couple of years, the common theme people were echoing was a sentiment of disappointment or feeling of loss that there was no new “next big thing”.  That’s a bit of a head scratcher personally, because technology will proceed at technology’s pace and it seems that statement is somewhat grounded in expectation that technology is always going to come up with some discontinuous innovation in a 12 month cycle that’s going to turn the entire market on its head and that’s just not a reasonable expectation as markets mature over time.

I also believe the activity that we’re seeing on the consolidation and M&A front is very indicative of the market maturing.  Niches have largely been filled.  And US-centric service providers have increased their depth, either organically or through inorganic acquisition.  But there is still a bit of a “wild west” openness outside of the US.  In Europe, there are fewer true providers and in Asia, there are fewer true providers still.  So, there is still opportunity for investment, innovation and growth, and I expect that’s going to continue to create attractive M&A targets.

But, I think the consolidation wave that preceded this Legaltech is evidence of market maturation.  There will always be innovation, even today, even in this LegalTech, you still see folks that are coming up with interesting ways to spin technologies with existing underlying engines.  Now it may not be “discontinuous, next big thing innovation”, but there is a constant, steady stream of innovation all around us exemplified by providers at this very show.  For example, analytics engines have been around for a while, half-a-dozen years even, but now you see them presented and integrated into meaningful workflows that are pragmatically useful to attorneys – better than in the past.    So, I think you’ll continue to see refinement of technology and refinement of workflows and a focus on meaningful, useful exposure of those technologies to attorneys.   So the market should expect that providers will continue to do interesting things, but those things may not be considered big and splashy and “next big” level of innovation.

Going back to your question in terms of consolidation, as markets mature, it’s naturally going to happen.  Investors, at some point in time, will want to realize return and that often happens through a sale.  I also think that there are some macro trends in the market that are fueling this trend.   In fact, there is actually an article in LegalTech News (the printed magazine) called Shark Bait by Zach Warren that is very much about this topic.

We’re continuing see evolution of eDiscovery into a true global industry.  Multinationals have global operations, they have data stores around the world in disparate systems, that originated from within smaller acquired companies.  So there are these pockets of data that the global entity really is unfamiliar with.  Then when matter sparks, the legal team – who is the least aware of these data stores – have to get their data from data stores in Serbia or Singapore.  If those legal teams have a mid-market eDiscovery services provider that is US-centric, well, that poses challenges.  We are seeing more cross-border matters, and more data collected from data stores outside the US – and as that trend continues, that will fuel the need for service providers that can support that global reach.

At Consilio, we made that leap to being a truly global eDiscovery services provider earlier than most folks did.  We were doing this back in 2006 and 2007.  We made our own missteps as you would expect of all companies doing so, but we persevered and became a truly global (in fact, by some measures more global than domestic) eDiscovery provider.  That made us very attractive for investment.  It’s one of the reasons that Shamrock Capital invested in Consilio and it’s a similar situation to what is fueling some of these eDiscovery acquisitions happening today.  Multinationals need global reach and they also need depth of bench – they need both.  Those providers that have both will be successful.

One trend that I’ve observed is an increased focus on automation and considerable growth of, and investment in, eDiscovery automation providers.  What are your thoughts about that trend?

We have to think about the eDiscovery technology market in subsectors or subcomponents.  Consider that eDiscovery is a very different game for a 175 custodian, six year collection out of systems that originate in Japan or Belgium than it is for a mid-sized law firm that generally focuses on employment law with one or two local custodians over a six month period.  These are very different things.

Those who aren’t serial litigants, and are focusing on more small-scale matters don’t always necessarily want to put those matters into Relativity.  They don’t want to have to go through an elongated processing step.  They just have a PST from somebody in the organization and they just want to look at those documents and apply a couple of tags.  So, on the one hand, you’re seeing automation from folks like Everlaw or CloudNine that allow for the “automation” of just dragging a PST folder into a web app and the files unpack automatically and the metadata is created, with simple point-click-go tagging.  That need exists and I think there’s a model now (and I’ve heard it a couple of times this week alone) where attorneys have said “I like self-service”.  Up to a point.  In cases where that’s a preferred flow leveraging automation, the attorney may have a need to graduate to Relativity or some other more mature platform with project managers who will provide value and guidance and best practices – but there is a cost to that.

I believe that there is a long-term trend in the market toward self-service.  That means that providers must and will continue to refine their user experiences and software in a way they were not three to five years ago.  I think it’s a responsibility of technology creators and innovators to meet the market where it is and to bring it forward and I think automation is a big, big part of that.

Let me also add that even at the large-scale end of the market, typically with companies that are used to a routine frequency of matters, there is a need for automation.  Along these lines, one of our strategic clients stopped me during our discussion about technology and said “tell me about automation in your platform”.  This is a client that has total eDiscovery spend well north of $100 million per year.  And, even in that scenario, she was interested in automation.  The reason is that these large scale investigations get very complex.  One of our most complex matters, we actually have over 3,200 discrete assignment batches within a single security group in a project that, itself, has five different security groups.  When you have 3,200 assignments, how do you keep track of all that?  Well that needs to be visualized, and the workflow needs to be automated – especially when you have project managers that are billing north of $100 US per hour who would otherwise be performing these tasks.  These clients need self-service for the large-scale matters just like clients do for the smaller-scale matters.  So there’s a drive toward automation at all levels of the spectrum.

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

Our story is pretty simple at LegalTech this year.  We’ve brought together not just two companies, but three companies, with the inclusion of Proven Legal Technologies – a well respected eDisclosure services and litigation support company in the UK.  We’ve brought together these fantastically experienced pieces, but we’ve done so in a way that’s so complementary.  I’m not sure that I’ve ever seen its equal in my years, not only in this industry, but in other industries where I’ve worked.

If you asked Huron Legal before the acquisition who their target client is, they would say it’s the Fortune 2000 multinational corporation with global operations with some sort of investment already made in their own in-house eDiscovery capabilities.  From Consilio, you would have heard pretty much the same answer.  You would also have heard the same answer on the law firm side – that we tend to partner with AmLaw 200 law firms that have some level of global operations and tend to get involved in global investigations and large-scale litigation.  On the surface, you would probably say that these two organizations probably have a tremendous amount of overlap.  But, now that we’ve put the pieces on the table side-by-side, it’s phenomenal how tremendously complementary they are and how they don’t overlap.  When you look on a client basis, there are a very small handful of our clients that are actually shared and even those that are shared tend to be law firms with a different practice area, so even those aren’t completely shared.  Less than five percent of our total client base actually overlapped, which is phenomenal.

When you look at capabilities where Huron Legal was incredibly strong – Relativity hosting, Nuix processing, Brainspace analytics and an incredible depth of bench here in the US, but not outside of the US – it married perfectly with Consilio’s tremendous global capability that dates back to 2006 where we made investments in APAC and Europe.  So, there was also a tremendous complementary nature to our businesses that way.  Consilio also has a deep history of doing its own innovation.  And the things that we’ve done around audio review and chat transcript review (which seems to be a huge trend in the market right now).  There are communication types that need to be evaluated and not necessarily in the same manner as email.  This type of innovation engine is complementary to the whole as well.  As you go down the list, you see that this is pretty much a marriage of strengths.

What has been really interesting to us (and I think is indicative of our market feedback), when we look at what is entering our pipeline, it is exactly the type of matters in which we want to get involved – large-scale litigation, complex matters, cross-border or non-US investigations.  It is the outsourced approach where our clients want us to handle processing through production for them, and help them leverage analytics when they’re not comfortable doing it themselves.  These are the types of matters where we are being called to service and it’s hugely gratifying to know that the thesis of the case was right – to bring these companies and technologies and depth of bench together.  It’s what we want to be known for.

Thanks, Pete, 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. 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.

Chris Dale of The eDisclosure Information Project: eDiscovery Trends

This is the sixth 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 Chris Dale.  Chris is director of the UK-based eDisclosure Information Project.  Chris qualified as an English solicitor in 1980 after reading History at Oxford. He was a litigation partner in London and then a litigation software developer and litigation support consultant before turning to commentary on electronic disclosure / discovery. The e-Disclosure Information Project disseminates information about the court rules, the problems, and the technology to lawyers and their clients, to judges, and to suppliers. He was a member of Senior Master Whitaker’s Working Party which drafted Practice Direction 31B and the Electronic Documents Questionnaire. Chris is also a well-known speaker and commentator in the UK, the US and other common law jurisdictions.

What are your general observations about LTNY this year and about emerging eDisclosure (eDiscovery) trends overall?

{Interviewed the first morning of LTNY, so the focus of the question to Chris was more about his expectations for the show and also about general industry trends}.

I used to check off all of the sessions that I planned to go to, then so many meetings and other things came along that I’ve long given up even looking at the schedule.  I do my interviews and other meetings and if I have time for anything else, it’s a luxury.  I do a lot of video interviews, and two panels in addition to the one I did yesterday, and that’s enough.

In technology terms, the stress on visualization is important because it will induce lawyers in to take a look at the demos.  The idea that they can see broad pictures and go down to the details is becoming more interesting and I’ve been impressed with some of the products that I’ve seen.  Trying to get the lawyers in and trying to get them to see the time saved and reduced time scales that might actually give them a strategic advantage is key to getting them to adopt the technology and visualization is a key part of that.  One of the troubles here in the US is that everybody thinks defensively still.  The mindset is still very much post-Zubulake and “we’ll be in trouble if we don’t do this”.

One of the potential advantages that I’m seeing specifically in visualization is that people might actually begin to see benefits.  There’s evidence in there, not just threat or risk.  It’s less of a “black box” to the lawyer.  There’s a strategic advantage in knowing early on what you’re going to do.  There’s more to that than just visualization, but we’re seeing tools that are aimed at that.  All those years when everybody talked about Early Case Assessment, it became just a phrase.  But now, we’re beginning to see tools that genuinely make that possible.  It’s a tactical advantage of being on top.  Craig Ball is always talking about whether you would rather be the one who can say “we’ve got this, this and this and that and that” and “this is our document retention policy and how we deal with BYOD, how about you?”  The tactical benefits from having this information early on is a huge benefit for lawyers.  The more you can visualize and the less it seems like a “black box”, the better.

One trend that I’ve observed is an increased focus on automation and considerable growth of, and investment in, eDiscovery automation providers.  What are your thoughts about that trend?

Other than for those who are early adopters, these providers will, to some extent, meet the same resistance because it is seen a “black box” that is doing the lawyers’ job for them and the concern will be the double-level of “what happens to my job” and also “how do I know it’s doing it right?”  For these providers, the education side will be just as important to the automation side in allaying those fears and concerns and showing them that it can do the processing just as well and faster.  Clearly, whether you’re talking about processing files or cleaning the house or whatever, anything that can do the job faster and easier has got to bite.

How do procedures and rules in the UK differ from those in the US with regard to handling of electronically stored information?

One difference is that proportionality really does mean something in the UK and is hammered down your throat at every opportunity.  Here, there are some judges who get the point, but there are an awful lot of lawyers who don’t get it.  The idea of balancing risk against cost, which is what proportionality really amounts to, is tipped heavily by the point that I made earlier about risk being the driving factor.  On that particular point, the rules have driven us over there longer than they have here.  Proportionality has actually been in your rules, but no one has actually taken an awful lot of notice of it.  I did a panel with Judge Peck yesterday and one of the first times I had seen the word proportionality over here was in one of his opinions (even though it has been in your rules for a long time).

We’re also more consistent when it comes to judge-led direction.  That is because active management is the job of the judge and they have taken it seriously over there.  We’re seeing an increasing number of judges over here take that role on themselves – still not many, but more than before.  Judge Grimm was the first to say “you’ll do it this way” or “why aren’t you doing it that way?” using whatever means within the rules to nudge people in the direction he thought was the right one.  But, it’s not enshrined in the same way here overall as it is with us.  Now, our judges may not appreciate spending most of their time as managers when they probably envisaged when they set up as barristers that they’d be doing trials and arguing elevated points of law.  Instead, many of them are dealing with the mechanics of pushing cases through the system.  I’m not sure they appreciate that.  But, done properly, when coupled with the idea that proportionality is the guiding principle, then you can see the opportunity for courts to say “don’t do this” or “why are you doing that?” and directing cases through the system effectively.

If you want a specific example of that happening in the US, I’ll refer to Judge Peck again in Da Silva Moore (covered by us here), which is famous for all sorts of other reasons.  In that case, you see him directing the parties to put documents aside that may or may not be needed (while still preserving them) because they were in France and would, Judge Peck knew, raise complications because of privacy and data protection restrictions.  I asked him yesterday if that was a spontaneous decision that he made or was it prompted by one of the parties asking.  And, of course, it was him self-starting because he could see the potential of time and money down the drain pursuing something that he knew (because he’s one of the few judges that actually understands EU data protection) that it could be fruitless.  Many judges would look at the rules and say “the rules say to produce it, so produce it”.  But, Judge Peck realizes that’s not a helpful approach, that time and money goes down the drain for the wrong reasons when you do that.  That’s a specific example of a judge rolling up his sleeves and seeing a clear way of saving time and costs.

Last fall, in the Schrems case, the Court of Justice of the European Union (‘CJEU’) ruled that the Safe Harbor pact enabling transatlantic data transfers between the U.S. and European Union should be struck down.  Do you think there will be a new, more effective agreement for transatlantic data transfers in place soon?

Today’s the day, in theory, that there is supposed to be a new method of doing things.  {Editor’s note: Indeed, as we announced here, a new framework was announced on that very day}  I don’t think, in discovery terms, which is the context we’re discussing here, that it matters anyway.  If anybody has been relying on Safe Harbor to bring discovery data to the US, they’re doing it wrong anyway.  If the only grounds for bringing over data was to say it’s Safe Harbor certified, then you’ve been doing it wrong.  And, a lot of people have been doing it wrong, using Safe Harbor to justify what was potentially an unlawful transaction.  I’ve been talking about Safe Harbor since 2008 or 2009, and people would laugh.  They would laugh at the idea that there were companies that wouldn’t follow the order of an American court.  But, privacy has been important over there for some time and it has even become much more important over here than it was just a few years ago.  The very same things that have raised attention in Europe have now raised attention in the US.  Edward Snowden raised attention here before the Schrems case came along.

What the Schrems decision may do is focus the eyes of corporations on the issue, so that when their lawyers – their good lawyers – say to them that there’s a problem here, they will understand that there is a problem.  There will be a few more lawyers who will realize that this is not a game for amateurs.  There have been plenty of amateur US lawyers when it comes to data protection, though some do understand it.  There is a way to do it and you can do it properly if you can articulate to the court your issues.  It’s a cultural issue.  Perhaps there is a history of facing US incursions that involve almost literally kicking the door down – “I have an order of an American court, give me your data.”  That perception has got to change and is changing.  The idea of being in Europe and understanding the culture of Europe is an important one.

That was one (but not the only) expressed motivation behind the acquisition of Huron Legal and Proven by Consilio – to take advantage of the cultural knowledge that each had in their respective markets.  And, there are plenty of other providers that are also doing it very well, involving the lawyers in each jurisdiction.  But, there are others who haven’t.  So, even before we see any new regulation or how the EU is going to react to Schrems, the culture has to change.  I’m not saying that I’m seeing it yet, but there will come a point where companies will want to be seen doing it properly, nobody will want to be seen as punished for breaking the rules.

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

As always, since 2007 anyway, I have been running the eDisclosure Information Project.  This is my tenth LegalTech.  It was called “eDisclosure” Information Project because I had no ambition to go beyond the UK when I started.  And, very quickly, I ran into lawyers who said that eDiscovery is something that Americans do and what an expensive mess they make of it.  It seemed to me that was an inadequate approach – just to dismiss somebody else’s approach to a major problem, as if it was simply the rules that were the problem instead of the existence of the data.  It was more involved than that and I wanted to explore that, and so the scope of my blog grew from there.

What the US has that we don’t is quite interesting – it’s a strong knowledge transfer from the body of judges who really understand this stuff.  You’re very lucky here in the US to have those judges and, of course, the technology that has been bred by the perceived fierceness of your rules is something the rest of us can benefit from even if we disdain the overall eDiscovery culture here.

So, to come back to your question: what is the mission?  The mission is firstly to promote the idea that the rules are not a bad thing to read.  RTFR is my motto, where the first “R” is “read” and the last “R” is “rules” and you can guess what the “F” stands for.  And, secondly, get out and see some of this technology.  I’m not necessarily promoting any particular one, but, if you don’t see the technology, how can you sit in your office and moan about “black boxes”?  So, the mission is two-fold: it’s rules and it’s look at the technology.

Thanks, Chris, 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.

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

This is the third 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 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 and also a member of the leadership team for the Information Governance Initiative.  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 are your general observations about LTNY this year and how it fits into emerging trends?

It’s clear to me that there has been a maturing of the market for the kind of analytics software that some of us have been evangelizing about in the eDiscovery space for some time.  This year, it was noticeable that there weren’t 27 sessions devoted to technology assisted review in e-discovery cases!  However, in place of that narrower focus, there were any number of sessions on analytics and applying analytics to a broader segment of the legal space, which I applaud.

Also, I think there was an acknowledgement that, from the perspective of Information Governance, there is an analytics play to be had.  With bigger and bigger data sets, companies need to face the fact that both employees and customers generate huge amounts of data and they need to make sure that they understand and have visibility into that data.  So, the tools that evolved for purposes of eDiscovery are perfectly suitable – with tweaks – to cover a variety of legal purposes, and we’re seeing that play out at LegalTech.

At LTNY, you were one of the panelists on the Thursday keynote addressing issues such as private servers, bring-your-own-device (BYOD) and other organization challenges for managing data by individual employees.  What do organizations, such as government entities and corporations, need to do manage personal data more effectively?

Well, I’m glad you asked me that.  The session that I had the privilege of speaking on (with Judge Scheindlin and Edward McMahon as fellow panelists and Professor Dan Capra moderating) was all about what I call “shadow IT,” which is a phenomenon that is closely related to but distinct from BYOD.   In the past decade or so, we all have been empowered to simply go to the Internet to use whatever variety of cool apps that are out there, like Google Docs and Dropbox, to facilitate communications and doing work and “parking” documents.  We go out and communicate routinely on Gmail and other forms of commercial services.  All of these activities, to the extent that they involve communications that relate to business or the work of governments, are what I consider to be “shadow IT” in nature because they are not controlled by a traditional IT department in a corporation or agency.

So, maybe a decade ago, if there was a Rule 34 request, you were pretty much assured that all of the relevant material could be gathered by a state-of-the-art IT custodian performing a collection effort against individual accounts on an official system.  That’s no longer absolutely the case.  Today, you need to ask follow-up questions as to where individuals are parking their documents and where are they communicating outside the “official” channel for doing so.

In government, there are very well known, long standing rules for what constitutes a Federal record, including email.  There is an expectation on the part of the public – and there should be an expectation on the part of government officials — that Freedom of Information Act (FOIA) requests for records created about government business will be made available. (Indeed, at least some of those records will be preserved as permanent records in the National Archives of the United States.)  So, it is incumbent to make sure that one follows the rules — and the rules for government are different than what they are for the private sector.  A clear statute in place since 2014 says that anytime that you’re communicating about government business on a private commercial network, you need to either “cc” or forward that message within twenty days to an official record keeping system.  This isn’t the place to get into what regulations were prior to 2014 and how that plays out in terms of the political realm, but our panel did cover the general topic of the responsibility of the officials to make sure that their communications about government business are, in fact, captured in an official system somewhere.

Also, for some time, I have been a very big advocate of email archiving and capture technologies generally, so that we don’t lose history and don’t lose a broad swath of government records that are otherwise not going to be captured if you simply leave it to individuals themselves to take steps to preserve. 

The problem of shadow IT is one that is equally of concern in the private sector because high level corporate officials sometimes, in various verticals, are governed by strict email archiving requirements (e.g.,SEC and FINRA rules).  So senior people need to also be aware that, if they’re communicating about cover topics outside of the usual channels, they need to take additional steps to make sure that those are properly archived.

These issues are only emerging now and it’s probably only going to get “worse”!  In my view, the issues are going to be more complex in the future with more apps, more platforms, more devices and more opportunities for “end runs” around the traditional IT department.

In the case Nuvasive v. Madsen Medical, the Court recently vacated an adverse inference instruction sanction previously applied against the plaintiff because of the amendment to Rule 37(e).  Do you see that as a trend for other cases and do you expect that other parties that have been sanctioned will file motions to have their sanctions re-considered?

There are some subtle provisions as to when courts will or will not apply the new rules to existing cases.  But, beyond that, I have been watching with great interest the number of decisions that have been handed down that are applying the new provisions of Rule 37, and doing so in a way that suggests that courts will continue to be quite active in monitoring what is happening in discovery — imposing severe sanctions where appropriate and, when there isn’t the requisite level of intent, applying some sort of curative measures otherwise.  So, I think there may have been a greater level of judicial activity than was anticipated in the immediate period since December 1 when the rules changed.  It seems clear to most observers in the space that we’re going to have dozens and dozens of decisions in 2016 that apply the new rules, and we will get to see the patterns emerging pretty quickly.

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

I think the exciting work of the Information Governance Initiative (IGI) continues to push smart conversations in the space about how corporations can get a handle on their data.  We had a very successful IGI summit, known as the Chief Information Governance Officers (CIGO) summit, in Chicago last year.  We’re going to have the second CIGO summit in May of this year again in Chicago and we’re looking forward to that.  We also have any number of activities that we’re planning to do in terms of retreats, dinners and boot camps, etc. I think IG is still an emerging discipline that should be of great interest to many corporate actors who don’t have a good handle on their existing workflows, policies and programs about data – whether it’s data breach or data reduction or data archiving or data analytics.  I feel very privileged to be part of a group of individuals at the IGI that are really doing some serious thinking about these types of topics.

I must say I was surprised by Monica Bay at LegalTech, who pulled me in at the last moment to be a judge at the second “Shark Tank” session held there —  where I felt a little like being on “America’s Got Talent” as one of three judges in the room looking at the individual entrepreneurs who were giving presentations.  But, as the session progressed (and as recorded by David Horrigan, who was tweeting the session in live stream fashion) it seemed very clear to me that maybe it’s time for me to retire!  I say so because of the profusion of disruptive technologies in the space, whether it has to do with smart contracts or dialing up lawyers over the web, it all heavily suggests that all of our current business models are going to be disrupted in due course and maybe very soon!  There are simply a lot of exciting technologies in the space for which the CodeX people are fostering a platform.  In the end I confess to being quite happy that Monica pulled me in, and I would urge your readership to pay attention to what CodeX is doing.  I believe there is a conference coming up (CodeX FutureLaw 2016) on May 20, which is focusing on how technology is changing the landscape of the legal profession and the impact of those changes.

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. 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. 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.

George Socha of Socha Consulting LLC: eDiscovery Trends

This is the second 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 George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011, he and Tom Gelbmann converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.  George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What are your general observations about LTNY this year and about emerging eDiscovery trends overall?

{Interviewed the first morning of LTNY, so the focus of the question to George was more about his expectations for the show and also about general industry trends}.

This is the largest legal technology trade show of the year so it’s going to be a “who’s who” of people in the hallways.  It will be an opportunity for service and software providers to roll out their new “fill in the blank”.  It will be great to catch up with folks that I only get to see once a year as well as folks that I get to see a lot more than that.  And, yet again, I don’t expect any dramatic revelations on the exhibit floor or in any of the sessions.

We continue to hear two recurring themes:  the market is consolidating and eDiscovery has become a commodity. I still don’t see either of these actually happening.  Consolidation would be if some providers were acquiring others and no new providers were coming along to fill in the gaps, or if a small number of providers was taking over a huge share of the market.  Instead, as quickly as one provider acquires another, two, three or more new providers pop up and often with new ideas they hope will gain traction.  In terms of dominating the market, there has been some consolidation on the software side but as to services provider the market continues to look more like law firms than like accounting firms.

In terms of commoditization, I think we still have a market where people want to pay “K-mart, off the rack” prices for “Bespoke” suits.  That reflects continued intense downward pressure on prices.  It does not suggest, however, that the e-discovery market has begun to approximate, for example, the markets for corn, oil or generic goods.  E-discovery services and software are not yet fungible – with little meaningful difference between them other than price.  I have heard no discussion of “e-discovery futures.”  And providers and consumers alike still seem to think that brand, levels of project management, and variations in depth and breadth of offerings matter considerably.

Given that analytics happens at various places throughout the eDiscovery life cycle, is it time to consider tweaking the EDRM model to reflect a broader scope of analysis?

The question always is, “what should the tweak look like?”  The questions I ask in return are “What’s there that should not be there?”, “What should be there that is not?” and “What should be re-arranged?”  One common category of suggested tweaks are the ones meant to change the EDRM model to look more like one particular person’s or organization’s workflow.  This keeps coming up even though the model was never meant to be a workflow – it is a conceptual framework to help break one unitary item into a set of more discrete components that you can examine in comparison to each other and also in isolation.

A second set of tweaks focuses on adding more boxes to the diagram.  Why, we get asked, don’t we have a box called Early Case Assessment, and another called Legal Hold, and another called Predictive Coding, and so on. With activities like analytics, you can take the entire EDRM diagram and drop it inside any one of those boxes or in that circle.  Those concepts already are present in the current diagram.  If, for example, you took the entire EDRM diagram and dropped it inside the Identification box, you could call that Early Case Assessment or Early Data Assessment.  There was discussion early on about whether there should be a box for “Search”, but Search is really an Analysis function – there’s a home for it there.

A third set of suggested tweaks centers on eliminating elements from the diagram.  Some have proposed that we combine the processing and review boxes into a single box – but the rationale they offer is that because they offer both those capabilities there no longer is a need to show separate boxes for the separate functions.

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

First, we would like to invite current and prospective members to join us on April 18 for our Spring meeting which will be at the ACEDS conference this year.  The conference is from April 18 through April 20, with the educational portion of the conference slated for the 19th and 20th.

For several years at the conference, ACEDS has given out awards honoring eDiscovery professionals.  To congratulate this year’s winners we will be giving them one-year individual EDRM memberships.

On the project side, one of the undertakings we are working on is “SEAT-1,” a follow up to our eMSAT-1 (eDiscovery Maturity Self-Assessment Test).  SEAT-1 will be a self-assessment test specifically for litigation groups and law firms.  The test is intended to enable them to better assess where they are at, how they are doing and where they want to be.  We are also working on different ways to deliver our budget calculators.  It’s too early to provide details on that, but we’re hoping to be able to provide more information soon.

Finally, in the past year we have begun to develop and deliver member-only resources. We published a data set for members only and we put a new section of EDRM site with information about the changes to the Federal rules, including a comprehensive collection of information about the changes to the rules.  This year, we will be working on additional resources to be available to just our members.

Thanks, George, 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. 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.

KMWorld Highlights CloudNine and Simplified eDiscovery

Extract from article in KMWorld by Judith Lamont on January 31, 2016: CloudNine is a cloud-based product used for e-discovery and investigation. The company also provides professional services to organizations that want to delegate some or all of their discovery tasks to a third party. CloudNine is designed to be simple to use, with a straightforward online process for uploading, reviewing and producing electronically stored information for litigation and investigations.

“Although we are CloudNine, we are not cloud-based the way most people think of it,” says Brad Jenkins, president and CEO of CloudNine. “We use a private infrastructure, and the data is highly secure, residing on dedicated servers on a dedicated network in a Tier 4 data center. We don’t use the public cloud at all.” Two pricing models are available; pay-as-you-go plans start at $25/GB per month, which includes 30 days of hosting but does not include processing (normally $100/GB for self-service processing). Subscription plans start at $1,000 per month, which includes unlimited self-service processing and up to 50GB of hosting.

The customers for CloudNine have typically been companies that provided litigation support as well as small to medium-sized law firms. Recently, larger law firms have started to use it to manage e-discovery for their clients, and that group of customers now includes dozens of firms, including more than 50 of the top 250 law firms. In addition, large (Fortune 100) corporations are using CloudNine for internal investigations and compliance.

CloudNine uses dtSearch as its search software. “It indexes very quickly,” says Doug Austin, VP of professional services, “and handles a range of file types from e-mail to documents and database information.” As for processing, CloudNine automatically unpacks the data, pulls out metadata and text and uses OCR to convert image files to searchable text.

“One thing that customers are very interested in is analytical capabilities,” Austin adds. “They want to be able to get an idea early on about whether they should settle or litigate. If they can analyze their data quickly, they can decide what their exposure is and then choose the best course of action. The simplified e-discovery automation that CloudNine provides enables our clients to perform that analysis and make those decisions quickly and effectively.”

Source: Article: Legal Applications of KM Trend Toward Flexibility, Simplicity

For the complete article, click here.

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.

Mo’ Data, Mo’ Data, Mo’ Data from EDRM: eDiscovery Trends

It didn’t take long for EDRM to deliver on its promise of an advanced data set.  Back in August, EDRM announced the release of the first of its “Micro Datasets”, designed for eDiscovery data testing and process validation.  The first one was small, this new data set is MUCH bigger.

The initial August offering was a 136.9 MB zip file containing the latest versions of everything from Microsoft Office and Adobe Acrobat files to image files containing EDRM specific work product files and data from public websites to uncommon formats including .mbox email storage files and .gz archive files.  On Monday, EDRM announced the release of a new 5.7 GB Micro Dataset. As before, this new EDRM dataset was assembled to meet eDiscovery data testing and process validation needs of software and tool providers, litigation support organizations, law firms and educational organizations and is sourced from publicly available data and free from copyright restrictions.

Designed to support exception handling exercises and advanced testing, the files in the new dataset have various levels of corruption, and the dataset contains a duplicate set of files that are encrypted.  The file types in the set include:

  • A variety of.csv files
  • Websites and web pages
  • Adobe Acrobat files
  • Graphic files and photographs
  • Public census data
  • Microsoft Office files
  • Audio files
  • 4 email boxes with shared correspondence, threads and attachments
  • Multiple Encase .e01 files containing data from a phone and another data source

This new EDRM Micro Dataset is available exclusively to EDRM members. Current EDRM members have been notified by email with instructions for file downloading (I just downloaded my copy yesterday and look forward to delving into it this week).  So, if you’re interested in joining EDRM, there has never been a better time!  Organizations and individuals interested in EDRM membership will find information at https://www.edrm.net/join/.

“The EDRM Dataset team has done outstanding work in advancing the industry with the development of advanced datasets that better reflect the types of data anomalies and challenges faced by e-discovery professionals today,” said George Socha, co-founder of EDRM. “EDRM members will benefit greatly from their work, in addition to the education, guidelines and latest in industry best practices provided to members.”

Five years after the Enron data set was converted to Outlook by the EDRM Data Set team (in November of 2010) we’re beginning to have some new dataset options.  We may actually someday see an eDiscovery product demo without Enron data!

So, what do you think?  Are you looking forward to checking out the new data set?  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’s a Look at How and Where Legal Departments are Utilizing Data Analytics: eDiscovery Trends

Let’s face it, data analytics are everywhere.  It’s no longer just Netflix suggesting movie choices based on previously watched movies or Amazon suggesting your next purchase, all companies are using data analytics to drive their business processes in various departments, including their legal departments.  But how are in-house legal departments actually using data analytics capabilities?  Here’s a new study that offers some answers.

The Coalition of Technology Resources for Lawyers (CTRL), an industry education and research group committed to the development of practical and proactive guidance for lawyers as they attempt to leverage various technologies in practice, commissioned the Information Governance Initiative (IGI) to conduct a survey regarding in-house legal departments’ use of data analytics across six use cases.  Those use cases are: 1) eDiscovery/Other Investigations, 2) Legal Matter Management, Billing, & Budgeting, 3) Information Governance, 4) Outcome Analysis or Risk Assessment, 5) Contract Review and 6) Selection of Outside Counsel. Data Analytics in the Legal Community 2015-2016 Trends is the resulting report prepared by CTRL based on that study.

While the study doesn’t identify the number of participants, it does note that a majority of survey respondents were attorneys (around two-thirds), with most holding senior-level positions. Around one third of respondents were non-attorneys, including IT, analytics, and other professionals within or providing support for the inhouse legal team.

Perhaps not surprisingly, eDiscovery/Other Investigations was the use case with the highest percentage of utilization of data analytics – it was the only use case for which a majority of legal departments (56%) reported that they were using data analytics.  Legal departments reported that their top three uses for data analytics in this area were culling and early case assessment (at 72.4% of respondents using analytics for eDiscovery each) and relevancy review (71.1%) – these were the only uses with over 70% of respondents. In addition to that, 71% of legal departments indicated that their spending on analytics for eDiscovery would increase or stay the same next year.

As for Information Governance (IG), it was the third most common use case with almost one third of legal departments using analytics.  Respondents using data analytics for IG indicated that it was used for “facilitate defensible disposition” and “facilitate compliance with records policies or other requirements” the most (77.4% of respondents using analytics for IG each).

The free eight page report is available here.

So, what do you think?  Does your legal department use data analytics?  If so, for what?  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.

Court Orders Defendant to Supplement Data Used for Statistical Sampling: eDiscovery Case Law

In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Sep. 1, 2015), 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).

Case Background

In this qui tam action under the False Claims Act (for which we covered a previous ruling here), the court had already held, in November 2014, that statistical sampling of claims was appropriate to save costs by enabling the parties to avoid examining every potential claim.  In the attempt for the relator (the person bringing the qui tam action on behalf of the United States) to finalize her proposed sampling plan, a dispute developed over the meaning of a zero-day stay at the defendant’s facilities.

The dispute arose because one of the defendant’s two billing systems used the patient’s registration time instead of the time the patient actually begins receiving inpatient medical care as the admit time – as a result, claims were falling out of the zero day stay population, which was defined as less than 24 hours from patient admit time to discharge time.  When reviewing the initial data for sampling, the relator was surprised that there were fewer claims than she expected – which lowered her chance of recovery in the case and ultimately later learned that this was due to how the billing system determined the admit time.  So she requested additional data to be produced.  The defendant objected, arguing that the relator sought “at this late hour” to acquire more data and alter the definition of a zero-day stay to include said data.

Judge’s Ruling

Noting that “[t]he question of relevancy should be construed liberally and with common sense and discovery should be allowed unless the information sought has no conceivable bearing on the case”, Judge Cooke stated:

“The time-adjusted data is discoverable, for it is indisputably relevant. Evidence is relevant when ‘it has any tendency to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of consequence in determining the action.’…Relator has adequately explained the basis for her belief that the time-adjusted claims properly fall within the data universe for zero-day stays, based upon the guidelines for an inpatient stay and the problem with the Siemens’ ‘admit time.’”

Judge Cooke also noted that the defendant “retain[s] the right, and will have the opportunity, to question or attack the reliability of” the expert and the statistical sampling process.

Judge Cooke also considered whether her November order allowing for statistical sampling permitted the inclusion of the time-adjusted data in the sampling plan.  Based on the definition of a zero-day stay as “a hospital stay of less than 24 hours” (from time of admission), she ruled that “the November order permits inclusion of the time-adjusted claims.”  As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE data consistent with relator’s proposal to include the time-adjusted claims” and for the parties to meet and confer to determine the plan for producing the data and finalizing the statistical sampling plan.

So, what do you think?  Was inclusion of the additional data appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

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