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Electronic Discovery

eDiscovery History: A Look Back at Zubulake
 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols
 

Criminal attorneys, are you discouraged that there is a lack of eDiscovery rules and guidelines for criminal cases?  If you work for the Department of Justice or other related law enforcement agencies, cheer up!

As noted in the Law Technology News article, DOJ Lays Down the Law on Criminal E-Discovery Protocols, written by Evan Koblentz, the government's Joint Electronic Technology Working Group (JETWG), led by the DOJ, unveiled its best practices guide for eDiscovery at a federal software summit in Washington on February 10.  The 21 page document, “intended for cases where the volume and/or nature of the ESI produced as discovery significantly increases the complexity of the case”, primarily consists of three sections:

  • Recommendations for ESI Discovery in Federal Criminal Cases: Provides a general framework for managing ESI, including planning, production, transmission, dispute resolution, and security;
  • Strategies and Commentary on ESI Discovery in Federal Criminal Cases: Provide more detailed guidance for implementing the recommendations – this section will evolve to reflect experiences in actual cases; and
  • ESI Discovery Checklist: One page checklist for addressing ESI production issues.

While the one page checklist has several items that would apply to any case, there are some items specific to criminal cases that would make it a handy reference for conducting eDiscovery on those cases.  The three sections are based on ten basic principles, which should have familiarity to those who have been dealing with eDiscovery in civil cases.  They are as follows:

  1. Lawyers have a responsibility to have an adequate understanding of electronic discovery.
  2. In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.
  3. At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.
  4. The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.
  5. When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.
  6. Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.
  7. The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.
  8. In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.
  9. The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
  10. All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

Evan’s article provides comments from Andrew Goldsmith, the national criminal eDiscovery coordinator, regarding the efforts and intent of the document and training program for DOJ attorneys and other law enforcement personnel, as well as efforts of the department to determine how to apply commercial, civil litigation oriented, eDiscovery software to criminal cases.  It’s a good read and the guidelines look promising as a resource for criminal attorneys to manage eDiscovery in those cases.

So, what do you think?  Do these guidelines show promise for eDiscovery in criminal cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited
 

In Custom Hardware Eng’g & Consulting v. Dowell, 2012 U.S. Dist. LEXIS 146, 7-8 (E.D. Mo. Jan. 3, 2012), the plaintiff and defendant could not agree on search terms to be used for discovery on defendant’s forensically imaged computers.  The court directed each party to submit a proposed list of search terms and indicated that each party would be permitted to file objections to the opposing party's proposed list.  After reviewing the proposals, and the defendant’s objections to the plaintiff’s proposed list, the court ruled that the defendant’s proposed list was “problematic and inappropriate” and that their objections to the plaintiff’s proposed terms were “without merit” and ruled for use of the plaintiff’s search terms in discovery.

Plaintiff alleged the defendants formed a competing company by “illegally accessing, copying, and using Plaintiff's computer software and data programming source code systems” and sued defendants for copyright infringement, trade secret misappropriation, breach of contract and other claims.  The court ordered discovery of ESI on defendants' computers through use of a forensic process to recover and then search the ESI.  In July 2011, the plaintiffs provided a request for production to defendants that requested “any and all documents which contain, describe, and/or relate in any manner to any of the words, phrases and acronyms, or derivatives thereof, contained in the list [provided], irrespective of whether exact capitalization, alternative spelling, or any other grammatical standard was used.”  The defendants submitted their own proposed list, which “excludes irrelevant information by requiring precise matches between search terms and ESI”.

Referencing Victor Stanley (previous blog posts regarding that case here, here, here and here), Missouri District Court Judge Richard Webber noted in his ruling that “While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them.”  Quoting from The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery, the court noted that keyword searches “capture many documents irrelevant to the user's query…but at the same time exclude common or inadvertently misspelled instances” of the search terms.

The defendant issued three objections to the plaintiff’s terms, which the court addressed as follows:

  • Plaintiffs’ Terms would Include an Unreasonable Number of Irrelevant Results: Assuming that the argument was based on a contention by the defendants that the discovery would be overly burdensome, the court noted that the “burden or expense of conducting such a search must be low, and Defendants have presented the Court with no evidence that suggests otherwise.”
  • Plaintiffs' Terms would Produce Privileged Results: The Court noted that a producing party can create a privilege log to exclude documents that would otherwise fit the search term results.
  • Some of Plaintiffs' terms will Encompass Only Irrelevant Information: Noting that the defendants' “objection is a conclusory statement, stated without any argumentation or other support”, the Court found that a search of these terms may produce "matter that is relevant to any party's claim or defense”.

The Court also found that the defendants' proposed list would be “problematic and inappropriate” and “would fail to produce discoverable ESI simply because of an inexact match in capitalization or phrasing between a search term and the ESI” and rejected that list, ordering use of the plaintiff’s list for searching.

So, what do you think?  Was that the right call, or was the plaintiff’s request overbroad?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Practicing Law and Discovery Services Companies Don’t Mix
 

At least, not in DC.

Vendors seeking to assist attorneys in offloading substantial portions of discovery-practice need to be careful not to cross the line into the unauthorized practice of law, according to a new ethics opinion by the District of Columbia Bar. On January 12, 2012, the District of Columbia Court of Appeals Committee on the Unauthorized Practice of Law released Opinion 21-12 regarding the “Applicability of Rule 49 to Discovery Services Companies.” This opinion provides guidelines for attorneys and discovery vendors regarding supervision of large-scale document reviews and vendors’ marketing practices, which are intended to prevent the unauthorized practice of law (UPL). Under these guidelines, the role of discovery-service providers in the e-discovery process must be limited to administrative, technical, and logistical tasks. This opinion and these guidelines additionally make clear that the onus of supervising a discovery project rests squarely on the shoulders of the D.C. Bar member who holds the attorney-client relationship with the client.

Rule 49 of the District of Columbia Court of Appeals provides:

No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.

The ‘practice of law’ includes “[f]urnishing an attorney or attorneys, or other persons” to provide legal services. Rule 49(b)(2)(F).

Opinion 21-12 provides the following “principles” to provide guidance regarding “the permissible scope of services that may be performed [by document services companies]” without running afoul of the UPL rules. Opinion, at 7.

First, Rule 49’s UPL rules apply only to the provision of legal services in the District of Columbia. To the extent a discovery provider advertises itself as being able to assist with any discovery project occurring in the district, even if the vendor is not physically located in the district, then Rule 49’s prohibitions apply because such company would be viewed as “holding itself out” as being able to provide legal services in the district. Opinion, at 7–8.

Second, in line with the committee’s prior 1999 Opinion 6-99, contract-attorney companies cannot make the final selection of contract attorneys to staff on a project, nor can the companies provide legal supervision over the contract attorneys. Both of those tasks must be handled by a member of the D.C. Bar with an attorney-client relationship with the client. The company’s role should be limited to the administrative aspects of the review (i.e., finding and interviewing reviewers, handling payroll and taxes, making sure the reviewers show up to work, etc.). A company is allowed to provide and supervise a person doing non-legal work if that person is not identified to the client as a lawyer. Opinion, at 8.

Third, a discovery-service company cannot use broad-based statements in its marketing materials (i.e., that the company is an “end-to-end” vendor or can provide “soup-to-nuts” solutions) without including a UPL disclaimer. This disclaimer must appear on the same page, in the same font, and in proximity to the potentially misleading statement. Statements regarding the legal expertise of the company’s staff also must contain similar disclaimers. Opinion, at 8–9.

Although the committee previously examined Rule 49 and its applicability to legal-services providers in 1999 and 2005, the committee saw fit to re-examine its prior decisions because companies providing discovery services “have dramatically expanded the scope” of their offerings. Opinion, at 4. The committee noted that these companies “offer a host of related services, from e-discovery consulting to database management to the eventual production of documents in litigation,” and that the companies also may “offer the physical space where the document review will take place, computers for conducting the review, and servers for hosting the document review.” Id.

The committee was concerned with the companies’ use of broad language in their marketing materials, including “one-stop shopping” and “comprehensive review and project management,” and about the marketing of companies’ management staff as having legal expertise that would be used in the discovery process. Opinion, at 4–5. Although the committee noted that some services provided by the companies may not “cross the line into legal practice,” such as administrative tasks, allowing discovery companies to make broad-based statements could mislead the public by implying that the companies are providing a legal judgment. Opinion, at 6.

Opinion 21-12 provides clarity to discovery-services vendors by outlining more clearly their role in the discovery process, which is limited to administrative, technical, and logistical functions. The opinion also will assist attorneys overseeing such projects by reminding them of their supervisory role over document reviews.

So, what do you think?  Is this a good idea?  Should it be adopted in other jurisdictions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Source: American Bar Association

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

eDiscovery Trends: Needing “Technology Assisted Review” to Write a Blog Post
 

Late on a Thursday night, with a variety of tasks and projects on my plate at the moment, it seems more difficult this night to find a unique and suitable topic for today’s blog post.

One thing I often do when looking for ideas is to hit the web and turn to the many resources that I read regularly to stay abreast of developments in the industry.  Usually when I do that, I find one article or blog post that “speaks to me” as a topic to talk about on this blog.  However, when doing so last night, I found several topics worth discussing and had difficulty selecting just one.  So, here are some of the notable articles and posts that I’ve been reviewing:

There’s plenty more articles out there.  I’ve barely scratched the surface.  When we launched eDiscovery Daily about 16 months ago, some wondered whether there would be enough eDiscovery news and information to talk about on a daily basis.  The problem we have found instead is that there is SO much to talk about, it’s difficult to choose.  Today, I was unable to choose just one topic, so, as the picture notes, “I have nothing to say”.  Therefore, I’ve had to use “technology assisted review” to provide a post to you, thanks to the many excellent articles and blogs out there.  Enjoy!

So, what do you think?  Are there any specific topics that you find are being discussed a lot on the web?  Are there any topics that you’d like to see discussed more?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: Our 2012 Predictions
 

Yesterday, we evaluated what others are saying and noted popular eDiscovery prediction trends for the coming year.  It’s interesting to identify common trends among the prognosticators and also the unique predictions as well.

But we promised our own predictions for today, so here they are.  One of the nice things about writing and editing a daily eDiscovery blog is that it forces you to stay abreast of what’s going on in the industry.  Based on the numerous stories we’ve read (many of which we’ve also written about), and in David Letterman “Top 10” fashion, here are our eDiscovery predictions for 2012:

  • Still More ESI in the Cloud: Frankly, this is like predicting “the Sun will be hot in 2012”.  Given the predictions in cloud growth by Forrester and Gartner, it seems inevitable that organizations will continue to migrate more data and applications to “the cloud”.  Even if some organizations continue to resist the cloud movement, those organizations still have to address the continued growth in usage of social media sites in business (which, last I checked, are based in the cloud).  It’s inevitable.
  • More eDiscovery Technology in the Cloud As Well: We will continue to see more cloud offerings for eDiscovery technology, ranging from information governance to preservation and collection to review and production.  With the need for corporations to share potentially responsive ESI with one or more outside counsel firms, experts and even opposing counsel, cloud based Software-as-a-Service (SaaS) applications are a logical choice for sharing that information effortlessly without having to buy software, hardware and provide infrastructure to do so.  Every year at LegalTech, there seems to be a few more eDiscovery cloud providers and this year should be no different.
  • Self-Service in the Cloud: So, organizations are seeing the benefits of the cloud not only for storing ESI, but also managing it during Discovery.  It’s the cost effective alternative.  But, organizations are demanding the control of a desktop application within their eDiscovery applications.  The ability to load your own data, add your own users and maintain their rights, create your own data fields are just a few of the capabilities that organizations expect to be able to do themselves.  And, more providers are responding to those needs.  That trend will continue this year.
  • Technology Assisted Review: This was the most popular prediction among the pundits we reviewed.  The amount of data in the world continues to explode, as there were 988 exabytes in the whole world as of 2010 and Cisco predicts that IP traffic over data networks will reach 4.8 zettabytes (each zettabyte is 1,000 exabytes) by 2015.  More than five times the data in five years.  Even in the smaller cases, there’s simply too much data to not use technology to get through it all.  Whether it’s predictive coding, conceptual clustering or some other technology, it’s required to enable attorneys manage the review more effectively and efficiently.
  • Greater Adoption of eDiscovery Technology for Smaller Cases: As each gigabyte of data is between 50,000 and 100,000 pages, a “small” case of 4 GB (or two max size PST files in Outlook® 2003) can still be 300,000 pages or more.  As “small” cases are no longer that small, attorneys are forced to embrace eDiscovery technology for the smaller cases as well.  And, eDiscovery providers are taking note.
  • Continued Focus on International eDiscovery:  So, cases are larger and there’s more data in the cloud, which leads to more cases where Discovery of ESI internationally becomes an issue.  The Sedona Conference® just issued in December the Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation, illustrating how important an issue this is becoming for eDiscovery.
  • Prevailing Parties Awarded eDiscovery Costs: Shifting to the courtroom, we have started to see more cases where the prevailing party is awarded their eDiscovery costs as part of their award.  As organizations have pushed for more proportionality in the Discovery process, courts have taken it upon themselves to impose that proportionality through taxing the “losers” for reimbursement of costs, causing prevailing defendants to say: “Sue me and lose?  Pay my costs!”.
  • Continued Efforts and Progress on Rules Changes: Speaking of proportionality, there will be continued efforts and progress on changes to the Federal Rules of Civil Procedure as organizations push for clarity on preservation and other obligations to attempt to bring spiraling eDiscovery costs under control.  It will take time, but progress will be made toward that goal this year.
  • Greater Price/Cost Control Pressure on eDiscovery Services: In the meantime, while waiting for legislative relief, organizations will expect the cost for eDiscovery services to be more affordable and predictable.  In order to accommodate larger amounts of data, eDiscovery providers will need to offer simplified and attractive pricing alternatives.
  • Big Player Consolidation Continues, But Plenty of Smaller Players Available: In 2011, we saw HP acquire Autonomy and Symantec acquire Clearwell, continuing a trend of acquisitions of the “big players” in the industry.  This trend will continue, but there is still plenty of room for the “little guy” as smaller providers have been pooling resources to compete, creating an interesting dichotomy in the industry of few big and many small providers in eDiscovery.

So, what do you think?  Care to offer your own predictions?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: 2012 Predictions – By The Numbers

With a nod to Nick Bakay, “It’s all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  I know what you’re thinking – “oh no, not another set of eDiscovery predictions!”  However, at eDiscovery Daily, we do things a little bit differently.  We like to take a look at other predictions and see if we can spot some common trends among those before offering some of our own (consider it the ultimate “cheat sheet”).  So, as I did last year, I went “googling” for 2012 eDiscovery predictions, and organized the predictions into common themes.  I found eDiscovery predictions here, here, here, here, here, here and Applied Discovery.  Oh, and also here, here and here.  Ten sets of predictions in all!  Whew!

A couple of quick comments: 1) Not all of these are from the original sources, but the links above attribute the original sources when they are re-prints.  If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Technology Assisted Review: Nine out of ten “prognosticators” (up from 2 out of 7 last year) predicted a greater emphasis/adoption of technological approaches.  While some equate technology assisted review with predictive coding, other technology approaches such as conceptual clustering are also increasing in popularity.  Clearly, as the amount of data associated with the typical litigation rises dramatically, technology is playing a greater role to enable attorneys manage the review more effectively and efficiently.
  • eDiscovery Best Practices Combining People and Technology: Seven out of ten “augurs” also had predictions related to various themes associated with eDiscovery best practices, especially processes that combine people and technology.  Some have categorized it as a “maturation” of the eDiscovery process, with corporations becoming smarter about eDiscovery and integrating it into core business practices.  We’ve had numerous posts regarding to eDiscovery best practices in the past year, click here for a selection of them.
  • Social Media Discovery: Six “pundits” forecasted a continued growth in sources and issues related to social media discovery.  Bet you didn’t see that one coming!  For a look back at cases from 2011 dealing with social media issues, click here.
  • Information Governance: Five “soothsayers” presaged various themes related to the promotion of information governance practices and programs, ranging from a simple “no more data hoarding” to an “emergence of Information Management platforms”.  For our posts related to Information Governance and management issues, click here.
  • Cloud Computing: Five “mediums” (but are they happy mediums?) predict that ESI and eDiscovery will continue to move to the cloud.  Frankly, given the predictions in cloud growth by Forrester and Gartner, I’m surprised that there were only five predictions.  Perhaps predicting growth of the cloud has become “old hat”.
  • Focus on eDiscovery Rules / Court Guidance: Four “prophets” (yes, I still have my thesaurus!) expect courts to provide greater guidance on eDiscovery best practices in the coming year via a combination of case law and pilot programs/model orders to establish expectations up front.
  • Complex Data Collection: Four “psychics” also predicted that data collection will continue to become more complex as data sources abound, the custodian-based collection model comes under stress and self-collection gives way to more automated techniques.

The “others receiving votes” category (three predicting each of these) included cost shifting and increased awards of eDiscovery costs to the prevailing party in litigation, flexible eDiscovery pricing and predictable or reduced costs, continued focus on international discovery and continued debate on potential new eDiscovery rules.  Two each predicted continued consolidation of eDiscovery providers, de-emphasis on use of backup tapes, de-emphasis on use of eMail, multi-matter eDiscovery management (to leverage knowledge gained in previous cases), risk assessment /statistical analysis and more single platform solutions.  And, one predicted more action on eDiscovery certifications.

Some interesting predictions.  Tune in tomorrow for ours!

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: Bennett Borden
 

This is the second of our Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today's thought leader is Bennett B. Borden. Bennett is the co-chair of Williams Mullen’s eDiscovery and Information Governance Section. Based in Richmond, Va., his practice is focused on Electronic Discovery and Information Law. He has published several papers on the use of predictive coding in litigation. Bennett is not only an advocate for predictive coding in review, but has reorganized his own litigation team to more effectively use advanced computer technology to improve eDiscovery.

You have written extensively about the ways that the traditional, or linear review process is broken. Most of our readers understand the issue, but how well has the profession at large grappled with this? Are the problems well understood?

The problem with the expense of document review is well understood, but how to solve it is less well known. Fortunately, there is some great research being done by both academics and practitioners that is helping shed light on both the problem and the solution. In addition to the research we’ve written about in The Demise of Linear Review and Why Document Review is Broken, some very informative research has come out of the TREC Legal Track and subsequent papers by Maura R. Grossman and Gordon V. Cormack, as well as by Jason R. Baron, the eDiscovery Institute, Douglas W. Oard and Herbert L. Roitblat, among others.  Because of this important research, the eDiscovery bar is becoming increasingly aware of how document review and, more importantly, fact development can be more effective and less costly through the use of advanced technology and artful strategy. 

You are a proponent of computer-assisted review- is computer search technology truly mature? Is it a defensible strategy for review?

Absolutely. In fact, I would argue that computer-assisted review is actually more defensible than traditional linear review.  By computer-assisted review, I mean the utilization of advanced search technologies beyond mere search terms (e.g., topic modeling, clustering, meaning-based search, predictive coding, latent semantic analysis, probabilistic latent semantic analysis, Bayesian probability) to more intelligently address a data set. These technologies, to a greater or lesser extent, group documents based upon similarities, which allows a reviewer to address the same kinds of documents in the same way.

Computers are vastly superior to humans in quickly finding similarities (and dissimilarities) within data. And, the similarities that computers are able to find have advanced beyond mere content (through search terms) to include many other aspects of data, such as correspondents, domains, dates, times, location, communication patterns, etc. Because the technology can now recognize and address all of these aspects of data, the resulting groupings of documents is more granular and internally cohesive.  This means that the reviewer makes fewer and more consistent choices across similar documents, leading to a faster, cheaper, better and more defensible review.

How has the use of [computer-assisted review] predictive coding changed the way you tackle a case? Does it let you deploy your resources in new ways?

I have significantly changed how I address a case as both technology and the law have advanced. Although there is a vast amount of data that might be discoverable in a particular case, less than 1 percent of that data is ever used in the case or truly advances its resolution. The resources I deploy focus on identifying that 1 percent, and avoiding the burden and expense largely wasted on the 99 percent. Part of this is done through developing, negotiating and obtaining reasonable and iterative eDiscovery protocols that focus on the critical data first. EDiscovery law has developed at a rapid pace and provides the tools to develop and defend these kinds of protocols. An important part of these protocols is the effective use of computer-assisted review.

Lately there has been a lot of attention given to the idea that computer-assisted review will replace attorneys in litigation. How much truth is there to that idea? How will computer-assisted review affect the role of attorneys?

Technology improves productivity, reducing the time required to accomplish a task. This is no less true of computer-assisted review. The 2006 amendments to the Federal Rules of Civil Procedure caused a massive increase in the number of attorneys devoted to the review of documents. As search technology and the review tools that employ them continue to improve, the demand for attorneys devoted to review will obviously decline.

But this is not a bad thing. Traditional linear document review is horrifically tedious and boring, and it is not the best use of legal education and experience. Fundamentally, litigators develop facts and apply the law to those facts to determine a client’s position to advise them to act accordingly. Computer-assisted review allows us to get at the most relevant facts more quickly, reducing both the scope and duration of litigation. This is what lawyers should be focused on accomplishing, and computer-assisted review can help them do so.

With the rise of computer-assisted review, do lawyers need to learn new skills? Do lawyers need to be computer scientists or statisticians to play a role?

Lawyers do not need to be computer scientists or statisticians, but they certainly need to have a good understanding of how information is created, how it is stored, and how to get at it. In fact, lawyers who do not have this understanding, whether alone or in conjunction with advisory staff, are simply not serving their clients competently.

You’ve suggested that lawyers involved in computer-assisted review enjoy the work more than in the traditional manual review process. Why do you think that is?

I think it is because the lawyers are using their legal expertise to pursue lines of investigation and develop the facts surrounding them, as opposed to simply playing a monotonous game of memory match. Our strategy of review is to use very talented lawyers to address a data set using technological and strategic means to get to the facts that matter. While doing so our lawyers uncover meaning within a huge volume of information and weave it into a story that resolves the matter. This is exciting and meaningful work that has had significant impact on our clients’ litigation budgets.

How is computer assisted review changing the competitive landscape? Does it provide an opportunity for small firms to compete that maybe didn’t exist a few years ago?

We live in the information age, and lawyers, especially litigators, fundamentally deal in information. In this age it is easier than ever to get to the facts that matter, because more facts (and more granular facts) exist within electronic information. The lawyer who knows how to get at the facts that matter is simply a more effective lawyer. The information age has fundamentally changed the competitive landscape. Small companies are able to achieve immense success through the skillful application of technology. The same is true of law firms. Smaller firms that consciously develop and nimbly utilize the technological advantages available to them have every opportunity to excel, perhaps even more so than larger, highly-leveraged firms. It is no longer about size and head-count, it’s about knowing how to get at the facts that matter, and winning cases by doing so.

Thanks, Bennett, for participating in the interview!

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

eDiscovery Trends: Congress Tackles Costs and Burdens of Discovery
 

Sometimes, it does take an “act of Congress” to get things done.

On December 13, a key subcommittee of the House of Representatives will conduct hearings regarding “The Costs and Burdens of Civil Discovery”.  The 10-member House Constitution Subcommittee led by Chairman Trent Franks (R. AZ) will hear from various witnesses regarding these issues — the first such hearing since the rules were last updated in December 2006.

Since the new rules took effect five years ago, sanctions for discovery violations have increased exponentially. A 2010 study published in the Duke Law Journal (and reported in this blog one year ago today) found that there were more eDiscovery sanction cases (97) and more eDiscovery sanction awards (46) in 2009 than in any prior year – more than in all years prior to 2005 combined!!

The hearings were originally scheduled for earlier this month, on November 16.  According to the Lawyers for Civil Justice web site (which has not yet been updated to reflect the new hearings date), the hearings are expected to cover:

  • Scope and dimensions of the problems with the federal litigation system;
  • Costs and burdens faced by litigants particularly in the areas of preservation and discovery of information;
  • The impact of those costs and burdens on the American economy and the competitiveness of American companies;
  • The magnitude of the cost savings that would better be spent on improving products and services and creating jobs; and
  • Expressions of support for the Judicial Conference Committee on Practice and Procedure’s primary responsibility to develop rule based solutions that would help relieve some of those costs and burdens, increase efficiency, and improve access to the federal court system (more on their recent efforts and meeting here).

Scheduled witnesses include:

  • Rebecca Love Kourlis, former Colorado Supreme Court Justice, now Director of the Institute for the Advancement of the American Legal System;
  • William H.J. Hubbard, Assistant Professor of Law. University of Chicago Law School;
  • Thomas H. Hill, Senior Executive Counsel, Environmental Litigation & Legal Policy, General Electric Company; and
  • William P. Butterfield, Hausfeld LLP, plaintiff class action counsel.

According to the International Data Corporation (IDC), the amount of digital information created, captured and replicated in the world as of 2002 was 5 exabytes (5 billion gigabytes), rising to 988 exabytes by 2010 (nearly a 20,000% increase)!  As a result, expenses associated with storing, collecting, searching and producing ESI in discovery have skyrocketed and many say that changes to the Federal Rules are inevitable (though some say it is too soon to fully grasp the impact of the 2006 Federal Rules changes).  It will be interesting to see what comes out of the hearings next month.

So, what do you think?  Do you expect major changes to the rules regarding eDiscovery, and if so, what would you like to see changed, and why?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: U.S. Court Rules on ECPA Protection of Emails in the Cloud
 

An October 3 decision by the Ninth Circuit Court of Appeals offers new clarity in defining and protecting the eDiscovery rights of non-U.S. nationals using U.S. services online, by ruling that emails stored on servers located within the U.S. are protected by national laws on ESI.

In Suzlon Energy Ltd v. Microsoft Corporation, the court determined that holders of online accounts whose servers are located in the U.S., regardless of their location or nationality, are protected by the Electronic Communications Privacy Act of 1986, commonly known as the "ECPA." The ECPA ensures that the disclosure of emails by electronic communication service providers is limited and restricted to specific circumstances.

The Suzlon case originated out of an Australian case brought by an Indian company (Suzlon) against an Indian defendant, Rajagopalan Sridhar and put the Ninth Circuit Court's opinion on the reach of the ECPA to the test.

  • The plaintiff's legal counsel sought access to emails in the defendant's Hotmail account, stored on Microsoft servers located in the U.S.
  • The defendant did not provide consent for his emails to be used in discovery, nor did Microsoft consent to release the emails in question.
  • Microsoft's objection brought the case before the U.S. District Court for the Western District of Washington and later before the Ninth Circuit Court of Appeals, both of which agreed that the emails were protected by the ECPA.
  • Despite the plaintiff's and defendant's Indian nationality, and the fact that the suit in question was Australian, the U.S. court ruled in a manner that creates a powerful precedent for future lawsuits related to electronic communication providers whose servers are located in the U.S. As a result of this case, it has become clear that any users with accounts in U.S.-held cloud services will be subject to the same protections under the ECPA as a U.S. citizen.

So, what do you think? Does this ruling offer fair and sensible protect to U.S.-based companies and the users of their cloud services, or does it unnecessarily complicate the field of international eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.