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Project Management

Lessons to Be Learned from the Wells Fargo eDiscovery Inadvertent Disclosure: eDiscovery Best Practices

When you’re a lawyer and you find out that you’ve inadvertently produced client confidential information in litigation, it’s a bad day.  When you find out that confidential information is personal information on thousands of the most wealthy investors in your client’s portfolio, it’s an even worse day.  And, when you find out that disclosure is being covered by The New York Times, it’s a lawyer’s worst nightmare.

Such is the story of Angela A. Turiano, a lawyer with Bressler, Amery & Ross, an outside law firm of Wells Fargo based in New Jersey.  In response to a New Jersey court case involving a dispute between ex-Wells Fargo employee Gary Sinderbrand and his brother who also worked there, Turiano inadvertently produced tens of thousands of client names, Social Security numbers, account balances and more.  This was on behalf of Wells Fargo as a third party to the New Jersey court case.

The documents and spreadsheets containing client information were originally provided to Aaron Miller, Sinderbrand’s lawyer in the New Jersey case on July 8 (according to the New York Times article linked below).  Miller later shared knowledge of what the documents contained to Aaron Zeisler, who is representing Sinderbrand in a New York case against Wells Fargo Advisors.  Miller notified Turiano of the disclosure of confidential information on July 20 (according to her affirmation filed with the New York Supreme Court on July 24).  The following day, the Times article was published with quotes from both Zeisler and Gary Sinderbrand, detailing the disclosure.  After Wells Fargo asked the NY and NJ courts to intervene, lawyers for Gary Sinderbrand were ordered to hand back over the data on July 26.

In Turiano’s affirmation, she described how the inadvertent disclosure evidently happened.  It’s based on this description of events that I offer up some suggestions about ways to avoid the scenario.  Here is the description provided by Turiano in paragraph 3 from the affirmation as to how the disclosure happened (I have put in bold a few key points that I reference below):

“Based upon my discussion with Mr. Miller, Wells Fargo agreed to conduct a search of four custodians’ email boxes using designated search terms.  Wells Fargo, like many large corporations, uses an outside e-discovery service to conduct e-mail searches.  The vendor conducted the search and, upon completion, I personally conducted a review of the voluminous search results to exclude from production any e-mails containing confidential or privileged information.  Specifically, using the vendor’s e-discovery software, I reviewed what I thought was the complete search results and for documents that contained confidential or privileged information, I thought I marked them as confidential or privileged.  I then coordinated with the vendor with both written instructions and by telephone and instructed the vendor to produce the emails in the database that I had marked, but that the vendor should withhold from the production anything that I tagged privileged-withhold and confidential and client-information withhold.  What I did not realize, was that there were documents that I had not reviewed.  Unbeknownst to me, the view I was using to conduct the review had a set limit of documents that it showed at one time.  Thus, I thought I was reviewing a complete set, when in fact, I only reviewed the first thousand documents.  I thus inadvertently provided documents that had not been reviewed by me for confidentiality and privilege.  In addition, it was my understanding that the vendor was going to apply redactions for documents I flagged as needing redactions.  Thus, I thought that responsive documents that contained confidential information would be redacted prior to production.  The documents, however, were not redacted prior to production.  I realize now that I misunderstood the role of the vendor.  Finally, I now understand that I may have miscoded some documents during my review.”

As a vendor, here are some of the things I would be doing to avoid the situation:

Communicate Search Results Completely and Clearly: I’m frequently asked to perform searches on behalf of clients and I always document the search results clearly in a spreadsheet with total documents retrieved for each term and a grand total of documents retrieved from all of the terms.  I also communicate that to the client clearly in an email, reiterating (in the email) the total count of documents retrieved via the searches (and usually follow up via phone as well).  I can’t say that the vendor didn’t do that here (maybe they did and the attorney glossed over – or forgot – the info), but a clear communication of search results may have helped ensure that Turiano had the correct count of documents and led her to realize that there were more documents than displayed on the first page of the eDiscovery software program.  It’s also important to realize that most (if not all) eDiscovery software applications deliver result sets in manageable batches of documents for efficiency sake – nobody wants to wait for all the data to load for 100,000 documents retrieved in a large search result – so the applications deliver the results in pages or batches.

Track Documents Reviewed and Report Anomalies: In a project where you know that the attorney is reviewing all retrieved documents for confidentiality and privilege, it’s good to track the documents actually reviewed and be able to report if there is an anomaly.  This could be done either by setting a specific field to mark a document as “Reviewed”.  Or it could be done via audit log tracking within the software.  Regardless, if either was done here, the vendor could have then informed the attorney that there were documents not reviewed and the mistake could have been discovered.

Confirm Documents Tagged for Redaction Were Actually Redacted: The workflow when dealing with native ESI is typically to flag documents that need redaction (which the attorney apparently did, at least for the documents she reviewed), then for the vendor to convert those native files to image format, then for the attorney to apply the redactions.  It doesn’t appear that the last two steps actually happened.  I’m not sure how the attorney expected the vendor to apply redactions simply based on a tag of “needs redactions” unless there was also a description field with a detailed description of where – even then, most vendors would still expect the attorney to ultimately apply them.  One check that should always be made before ESI is produced is to confirm that redactions were properly applied and if documents were tagged for redaction, there should be a step to make sure that they were actually redacted.  That’s a production QC step that should always be done before signing off on the production (by both vendor and attorney).

Perform a Pattern Search for Personally Identifiable Information (PII): With data privacy becoming more important than ever and GDPR looming, it’s becoming necessary to do more than just manual review to identify potential personal data – after all, people make mistakes.  Pattern searches are specialized searches, looking for specific types of information, such as 3 digits, then 2 digits, then 4 digits (i.e., the pattern for a social security number).  Searches for other patterns, like client account numbers or credit card numbers, could also be performed to determine whether personal data exists in the production set, which may need to be redacted or removed altogether.

Recognize When Your Client Needs More Hand Holding: Some attorneys are experienced and tech-savvy with regards to eDiscovery and want to drive the process, others are not.  Based on the description of events, I would suggest that this attorney was not very experienced in eDiscovery matters or in using eDiscovery software.  When that’s the case, it’s important for the vendor to be prepared to take more of a lead in driving the production QC and raising issues like those I discussed above.  As Turiano stated, “I realize now that I misunderstood the role of the vendor.”  Evidently, there was certainly a lack of communication on who was “driving the bus” on this production – when that’s the case, “the bus” tends to end up in a ditch.

So, what do you think?  What steps do you take to avoid inadvertent disclosures?  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.

When Litigation Hits, The First 7 to 10 Days is Critical: eDiscovery Replay

Sometimes, even blog editors need to take a vacation.  But, instead of “going dark” for the week, we thought we would re-cover some topics from the past, when we had a fraction of the readers we do now.  If it’s new to you, it’s still new, right?  Hope you enjoy!  We’ll return with new posts on Monday, August 7.

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel.  Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data. Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case has been filed that the duty to preserve has begun. Hold notices must be issued ASAP to all parties that may have potentially responsive data.  Once the hold is issued, you need to track and follow up to ensure compliance.  Did you know that issuing litigation hold notices today can be automated?  Here’s a short webcast to show you how.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case. They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers). Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process.  It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.  And, don’t forget to consider those custodians who are no longer there.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation. Are you using internal resources, outside counsel or a litigation support vendor?  Will the data be collected via an automated collection system or manually?  Will employees “self-collect” any of their own data?  Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think?  How quickly do you decide whether to litigate or settle?  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.

This New Pilot Program Can Speed Up Discovery, Especially in Arizona and Illinois: eDiscovery Best Practices

At its meeting in September of 2016, the Judicial Conference of the United States approved a pilot program to test procedures requiring mandatory initial discovery before the commencement of party-directed discovery in civil cases.  Now, that pilot program – the Mandatory Initial Discovery Pilot Program – is already in use in Arizona and Illinois.

The Mandatory Initial Discovery (MIDPP) Pilot Program has been designed to test whether early substantial disclosure of information can reduce litigation costs and shorten the time for case resolution consistent with the goals of Rule 1 of the Federal Rules of Civil Procedure, which requires the court and the parties to employ the rules “to secure the just, speedy, and inexpensive determination” of every case.

As noted in the Above the Law article (Holy Early Discovery, Batman! You’ll Want To Know About This, written by Kelly Twigger), the District of Arizona (effective May 1) and the Northern District of Illinois (effective June 1) “have adopted the MID pilot project for three years. The pilot requires parties to produce all discovery in support of their case (consistent with Rule 26(a)) but ALSO all discovery that is relevant to the opposing parties’ claims and/or defenses. And wait, it gets better — responses have to be filed within 30 days of filing an answer (which everyone now has to do) and documents must be produced 40 days later.”

And, as the description “mandatory” implies, the MIDPP will apply to all civil cases in the volunteer courts, subject to certain specific exemptions.  According to Twigger, those exemptions are “pro se cases, PLSRA matters, MDL matters, and patent cases.”

The Federal Judicial Center site provides several resources regarding the MID Pilot program here, including:

There is also a Checklist page and a Users’ Manual page that provides a general checklist and user’s manual for the MIDPP, as well as specific checklists and user’s manuals for the District of Arizona and the Northern District of Illinois.

So, what do you think?  Will the Mandatory Initial Discovery Pilot Program lead to a speedier and more proportional discovery cycle?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Give yourself a pat on the back if you recognize the movie where the graphic came from – Copyright © Paramount Pictures.  Don’t recognize it?  Surely, you can’t be serious!

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 an Opportunity to Learn How to Fix “Pitfalls” and “Potholes” in Your eDiscovery Project: eDiscovery Best Practices

If you’ve ever managed a discovery project for litigation, investigations or audits, you know that “Murphy’s Law” dictates that a number of “pitfalls” and “potholes” can (and will) occur that can derail your project. These issues can add considerable cost to your discovery effort through unexpected rework and also cause you to miss important deadlines or even incur the wrath of a judge for not following accepted rules and principles for discovery.  Thanks to our friends at ACEDS, you can learn more about these “pitfalls” and “potholes” that you can encounter during the discovery life cycle from Information Governance to Production and how to address them to keep your discovery project on track.

Today’s ACEDS webinar at noon CT (1pm ET, 10am PT) is titled Pitfalls and Potholes to Avoid in Your eDiscovery Projects.  I’ll be presenting the webcast with Karen DeSouza, Director of Review Services at CloudNine and we will discuss twenty(!) different “pitfalls” and “potholes” that you can avoid to keep your project on track.  Examples of issues being discussed include:

  • Avoiding the Mistake in Assuming that Discovery Begins When the Case is Filed
  • How to Proactively Address Inadvertent Privilege Productions
  • Up Front Planning to Reduce Review Costs
  • How to Avoid Getting Stuck with a Bad Production from Opposing Counsel
  • Understanding Your Data to Drive Discovery Decisions
  • Minimizing Potential ESI Spoliation Opportunities
  • Ways to Avoid Potential Data Breaches
  • How to Avoid Processing Mistakes that Can Slow You Down
  • Common Searching Mistakes and How to Avoid Them
  • Techniques to Increase Review Efficiency and Effectiveness
  • Checklist of Items to Ensure a Smooth and Accurate Production

To sign up for today’s webcast, click here.  Hope to see you there!

So, what do you think?  Have you encountered “pitfalls” or “potholes” in your discovery projects?  If so, please feel free to join us!  And, 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.

The “Belt and Suspenders” Approach for Effective Communication: eDiscovery Best Practices

Having recently experienced a potential communication issue with a client, I thought it would be a good time to revisit this topic…

To be a good manager, you need to be a good communicator.  Effective communication is a key part of effective project management, whether that communication is internally within the project team or externally with your client.  It is so easy for miscommunications to occur that can derail your project and cause deadlines to be missed, or work product to be incomplete or not meet the client’s expectations.

I like to employ a “belt and suspenders” approach to communication with clients as much as possible, by discussing requirements or issues with the client and then following up with documentation to confirm the understanding.  Sometimes what you thought you heard or what they thought they said may not match, so the documentation is key to making sure you’re on the same page (literally).  :o)

Following up with documentation of the discussion seems obvious and many project managers start out that way – they discuss project requirements and services with a client and then formally document into a contract or other binding agreement.  However, as time progresses, many project managers start to slip in following up to document changes discussed to scope or approach to handling specific exceptions with clients.  It’s the little day to day discussions and decisions that aren’t documented that can often come back to haunt you. The other extreme is where a project manager communicates solely via email and keeps the project team waiting for the client to respond to the latest email – sometimes, you need to pick up the phone and agree on the approach quickly to keep things moving.  Unless there is a critical decision for which documented agreement is required to proceed, discussing and documenting keeps the project moving while ensuring each decision gets documented.

I can think of several instances where this approach helped avoid major issues, especially with the follow-up agreement or email.  If nothing else, it gives you something to point back to if miscommunication occurs.  Recently, we agreed to process some data for a client with our professional services team to follow up to perform specific searches to identify potentially responsive ESI to review and (for the documents classified as responsive and not privileged during review) produce.  We discussed the requirements with the client and I sent an email which documented the proposed approach and the searches we were to perform for the client to approve, which he did.  We then proceeded to process and search the ESI as agreed to in the email.

When we reviewed the search results with the client, it was determined that there was a misunderstanding on one of the searches related to relevant time frame – we understood that emails before a certain date were relevant, but the client said it was the other way around and that emails on or after that date were relevant.  Fortunately, the client was understanding and the rework was minimal, but having that approved email that documented our understanding was good to have – just in case.  We delivered what we promised and our reputation with that client remains strong – in part, thanks to the “belt and suspenders” approach!

So, what do you think?  Have you had miscommunications with clients because of inadequate documentation? 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.

It’s Not the Size That Matters, It’s What You Do With It: eDiscovery Best Practices

Get your minds out of the gutter – I’m talking about the size of your data collection (silly!).  :o)

We certainly have talked a lot about the impact of Big Data and the Internet of Things on this blog as new challenges presented to today’s attorneys, and they are, but challenges have always existed for attorneys in managing data and documents in litigation.  An article from last week reminds us that, regardless of how much data we’re dealing with or where it comes from, discovery is still about strategy.

In Above the Law (Stop Equating eDiscovery With Data — It’s Not That Simple), Kelly Twigger (the author) reminds us of how it was if we go back 10 years (hopefully more like 15, but that’s beside the point).  Remembering (reminiscing?), she notes that we “asked for paper from our clients and the other side, and we got bankers’ boxes of stuff. Then we sat down and went through each page one by one and then we went through them again. And again. We used yellow stickies with handwritten notes, then we graduated to the multi colored Post-it tabs and hoped we could remember what color stood for what.”

Even when we started using technology, it was Summation where we “paid people to manually code multiple fields of documents (that we reviewed by hand) so that we had a database that told us about the documents in it.”  While it had limited functionality, it was still an improvement.

Kelly notes that while the technology has improved a whole lot, most attorneys “are still conducting discovery as if we still have paper” and she notes “that’s a big part of why discovery of ESI costs so much and you don’t want to do it.”  Like a doctor responding to a patient who says “doc, my arm really hurts when I bend it over my head”, Kelly says “Stop doing that.”  Instead, she says, “start with the endgame in mind — what do you want, where can you get it from, and how valuable is it, versus how much does it cost to get?”

A couple of years ago, I decided to have a little fun and I inverted the EDRM model backwards and wrote a post about how, when planning for your eDiscovery project, it’s often best to work backwards and start with the goals to be accomplished for the end phases and use that to guide your work at the beginning of the process.  For the ESI that you plan to present, it’s important to identify that ESI early (and determine whether it’s in your possession or you need to request it from another party), and you’ll need to determine what ESI you need to preserve and collect to meet your production obligations.  The volume of data that you expect may drive review decisions such as how many reviewers you may need or whether you should consider using Technology Assisted Review to conduct your ESI review.  So, by starting “backwards” and determining your end goals, you can plan for your activities through the life cycle of the case.  Preparation reduces perspiration.

Kelly reminds us what many attorneys should already know, that the “volumes of ESI and the sources you have to search are only going to increase drastically, and your litigation budgets are not.”  Planning, strategy and learning the technology are keys keeping those budgets in line.

So, what do you think?  What do you do at the beginning of a case to ensure success at the end?  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.

What Can Go Wrong, Will Go Wrong. Here’s What to Do About It: eDiscovery Trends

As I promised on Tuesday, here’s how you can find out how you can learn about several more “pitfalls” and “potholes” and how to avoid them.

If you’ve ever managed a discovery project for litigation, investigations or audits, you know that “Murphy’s Law” dictates that a number of “pitfalls” and “potholes” can (and will) occur that can derail your project. These issues can add considerable cost to your discovery effort through unexpected rework and also cause you to miss important deadlines or even incur the wrath of a judge for not following accepted rules and principles for discovery.  Here’s a new webinar that will help you avoid many of these “pitfalls” and “potholes”.

On Thursday, April 27 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Pitfalls and Potholes to Avoid in Your eDiscovery Projects.  This one hour webcast will discuss some of the most common “pitfalls” and “potholes” that you can encounter during the discovery life cycle from Information Governance to Production and how to address them to keep your discovery project on track.  Examples of issues being discussed include:

  • Avoiding the Mistake in Assuming that Discovery Begins When the Case is Filed
  • How to Proactively Address Inadvertent Privilege Productions
  • Up Front Planning to Reduce Review Costs
  • How to Avoid Getting Stuck with a Bad Production from Opposing Counsel
  • Understanding Your Data to Drive Discovery Decisions
  • Minimizing Potential ESI Spoliation Opportunities
  • Ways to Avoid Potential Data Breaches
  • How to Avoid Processing Mistakes that Can Slow You Down
  • Common Searching Mistakes and How to Avoid Them
  • Techniques to Increase Review Efficiency and Effectiveness
  • Checklist of Items to Ensure a Smooth and Accurate Production

I’ll be presenting the webcast with Karen DeSouza, Director of Review Services at CloudNine and we will discuss twenty different “pitfalls” and “potholes” that you can avoid to keep your project on track.  To register for the webcast, click here.  You may thank us later. :o)  Hope you can attend!

So, what do you think?  Have you encountered “pitfalls” or “potholes” in your discovery projects?  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.

Failing to Test Search Terms Before Agreeing to Them Can Be Costly: eDiscovery Best Practices

Here’s a big “pothole” that can derail your eDiscovery project.  On Thursday, I’ll discuss how you can learn about several more “pitfalls” and “potholes” and how to avoid them.

As soon as litigation is anticipated, it’s a good idea to begin collecting potentially responsive data and assessing it by performing searches and testing the results.  Because, if you wait until after the meet and confer with opposing counsel to do so, it can be expensive.

On the very first day we introduced eDiscovery Daily over 6 1/2 years ago, we published a post where we discussed the danger of using wildcards in your searches (and how they can retrieve vastly different results than you intended).  I was providing search strategy assistance to a client that had already agreed upon over 200 search terms with opposing counsel.  The attorneys had prepared these terms without assistance from a technology consultant (or “geek” if you prefer) – I was brought into the project after the terms were negotiated and agreed upon – and without testing any of the terms.

One of those searches related to mining activities, so the attorney decided to use a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.  As you know by now if you’ve been a reader of the blog since the beginning (or if you clicked on the link to that original post above), that one search retrieved over 300,000 files with hits because there are 269 words in the English language that begin with the letters “min”.  We ultimately had to go back to opposing counsel and attempt to negotiate a revised search that was more appropriate.

Since the terms had been agreed upon, opposing counsel was understandably resistant to modifying any of them.  It wasn’t their problem that my client faced having to review all of these files – it was my client’s proposed term that they now wanted to modify.  However, because we were able to demonstrate a clear indication that many of the retrieved documents in this search were non-responsive, we were able to get opposing counsel to agree to a modified list of variations of “mine” that included “minable”, “minefield”, “minefields”, “miner” and “minings” (among other variations).  That modified search reduced the result set to less than 12,000 files with hits, saving our client a “mint”, which they certainly didn’t “mind” (because we were able to drop “mint” and “mind” and over 200 other words from the responsive hit list).

However, there were several other inefficient terms that opposing counsel refused to renegotiate and my client was forced to review tens of thousands of additional files (costing tens of thousands of dollars) that they wouldn’t have had to review if they had included a technical member on the team at the beginning and had they tested each of these searches before negotiating terms with opposing counsel.  Doing so would have identified which terms were overbroad and would have led to determining more efficient search terms to propose, saving tens of thousands of dollars in review costs.

So, what do you think?  Do you test your search terms before proposing them to opposing counsel?  If not, why not?  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.

For Your Project to Succeed, You May Need To Be a “Debbie Downer”: eDiscovery Best Practices

Everybody knows somebody like this.  In eDiscovery terms, it might sound like this:

“The zip file will probably be corrupt and we’ll probably have to spend a lot of time trying to repair it.”  WOMP WOMP!

Or this:

“We’ll probably have a lot of turnover with the review staff and we won’t get the review done by the deadline.”  WOMP WOMP!

Let’s face it, most of us would prefer to be positive about how our eDiscovery projects will turn out (not to mention about life in general).  But, problems happen in life and, unfortunately, in most litigation projects as well.  If you’re not willing to look at the bad things that could happen and create a plan to avoid them, your project could be derailed and you could wind up spending more than is necessary, missing deadlines, or both.

That’s where a “pre-mortem” comes in.  Like a “post-mortem” enables you to correct problems encountered after the fact for the future, a “pre-mortem” enables you to anticipate problems in the first place and create a plan to prevent those problems from happening.  On many projects that I’ve worked on, we’ve conducted a “pre-mortem” to brainstorm what can go wrong (i.e., the risks) and identify a plan for mitigating each of those risks up front, then revisit regularly (typically, weekly if not more frequently) to monitor the plan for proactively addressing each risk.  This exercise can avoid a lot of headaches during the project.

Potential problems can happen throughout the discovery life cycle, so the “pre-mortem” list of potential problems will often evolve over the course of the discovery process.  Here are a couple of examples:

  • Data anomalies and exception files will slow down processing and cause us to fall behind in preparing data for review: As we noted over six years ago(!), exceptions are the rule and you will frequently encounter exception files that cannot be processed (or require considerable effort to process). Some “pre-mortem” steps to address this issue are to: 1) proactively discuss (and hopefully agree) with opposing counsel on how to handle these files in a manner that minimizes the time to attempt to correct those files and 2) establish a procedure for setting aside these files (when possible) while loading the remaining problem-free data.  Removing these potential roadblocks to getting data ready for review will help keep the discovery process moving and on schedule.
  • Review will take longer than anticipated and we will miss the production deadline: There are several measures that can be utilized to avoid this issue, including: 1) obtaining as much information about your document collection as possible up front, including number of documents, how many emails and attachments you have, how many domains those emails represent and also how many email conversations are encompassed with those emails, etc.; 2) prepare complete and clear review instructions for your attorney reviewers; 3) estimate the number of reviewers and expected throughput for review; 4) conduct a pilot review with a few reviewers to compare actual results to estimates and adjust estimates (and review instructions) accordingly; 5) exceed (at least slightly) the number of estimated reviewers to provide some leeway and 6) monitor progress daily and adjust quickly if productivity starts to fall behind.

By identifying what could go wrong up front, creating a plan to avoid those issues and monitoring the plan regularly to proactively address each risk, you can keep those problems from happening in the first place.  You may generally be an upbeat person who even “wears rose colored glasses” from time to time, but you may need to find your inner “Debbie Downer” at times to help your project succeed.

So, what do you think?  Do you put your “Debbie Downer” hat on at the beginning of your project?  Please share any comments you might have or if you’d like to know more about a particular topic.

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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.

Public Comment Period Extended for Commentary on Defense of Process: eDiscovery Best Practices

As we noted a couple of months ago, The Sedona Conference® Working Group on Electronic Document Retention and Production (WG1) has issued a Public Comment Version of a new Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process.  The deadline for public comment was to have ended a couple of days ago, on November 15.  Now, the deadline for public comment has been extended by the WG1 steering committee.

The new deadline for the public comment period for the Commentary is Monday, November 28.

As noted in the Preface, the Commentary “represents the culmination of five years of spirited dialogue within WG1 on a number of sensitive topics that go to the heart of what it means to be a competent advocate and officer of the court in an age of increasing technological complexity. It addresses the tension between the principle of party-controlled discovery, and the need for accountability in the discovery process, by establishing a series of reasonable expectations and by providing practical guidance to meet these competing interests. The overriding goal of the principles and guidelines set forth in this Commentary is to reduce the cost and burden typically associated with modern discovery by helping litigants prepare for – or better yet, avoid altogether – challenges to their chosen discovery processes, and by providing guidance to the courts in the (ideally) rare instances in which they are called upon to examine a party’s discovery conduct.”

The WG1 steering committee gave no reason for the extension in its email announcement.  Perhaps they are receiving a lot of comments, which shows that a lot of people have taken interest in the Commentary.  If so, that’s good.

As usual, the Commentary is free and you can download it here.  Questions and comments regarding the Commentary may be sent to comments@sedonaconference.org.

So, what do you think?  Will these new principles help organizations implement a sound eDiscovery process?  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.