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Project Management

Tom Gelbmann of Gelbmann & Associates, LLC – eDiscovery Trends

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

  1. What significant eDiscovery trends did you see at LTNY this year and what do you see for 2014?
  2. It seems despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery?  Do you agree with that and, if so, what do you think can be done to improve the situation?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC, is a consulting practice serving the legal services industry. Tom has an extensive record of working with law firms, corporate counsel and legal services providers as a consultant, advisor, project manager, and has also held the CIO position at two major law firms.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011 he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle.

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

While I didn’t attend the show this year (for the first time in many years), I have been monitoring communications about the show and what took place and have talked with a number of attendees, so I do have some perspectives about it.  Not surprisingly, a major theme this year was the surge in attention to Information Governance.  Information Governance is becoming the area that is grabbing attention within organizations, and rightly so.  We’ve been saying for quite some time in “EDRM-land” that if you can get your electronic house in order, eDiscovery challenges are mitigated and costs can be considerably reduced.

One of the results that you’re starting to see is the appearance of tools to help with that whole Information Governance process of: What do you have?  Who has it?  Where is it?  How do you curate it?  How do you identify what you no longer need to hold onto and effectively get rid of it?  And, when litigation does occur, how do you effectively hone in on the ESI that you need for that particular matter?

Another trend that I’m seeing in general is really two somewhat related trends: Metrics and Project Management.  Metrics has been something that has been slow to catch on for a long time, but I think organizations are now catching on to the fact that if you don’t measure it, you can’t manage it.  The light is coming on for people who are realizing that “yeah, I’d better start tracking these things”.  Metrics have really started to become more mainstream within the industry.  Associated with that is Project Management.  In eDiscovery, you have to have a well-defined, repeatable process to manage the projects effectively.  The more disciplined you are, the better your outcomes will be.  So, metrics and project management are really “coming of age”.

We’re also seeing more and more activity with mobile devices.  You’ve got smart phones, iPads and other tablets, BYOD, etc.  And, that’s really where more and more ESI will be.  I think mobile platforms are starting to take over as far as the means of communication and, in many cases, that’s where the story is.  And, what eDiscovery is all about is finding out the story.  Not that email is going to dry up any time soon, but you’re starting to see that the growth is in mobile and social media.

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

I agree.  From what I’m seeing, it may have gotten a little bit better, but not a whole lot.  For change to come, the impetus has to come from clients.  Clients need to be more demanding and validate their outside counsel attorney’s claims of “I know all about eDiscovery” when maybe all they did was attend a CLE.  There has to be proof of their knowledge, but I’m not sure how clients will go about obtaining that proof.  But, they’re the ones paying the bill, so the impetus will have to come from them.  I don’t think it will come from a bar association.

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

I’m very enthused about EDRM this year from a couple of aspects.  One, we’re very excited that we’re moving towards a non-profit model for EDRM.  There’s been a lot of work so far and there’s still a lot of work to do, but I think we’re on track to complete that this year.  I think that’s really going to serve EDRM well for the longer term.  What I mean by that is that it’s been the “George and Tom show” and we realize that it can’t be if it’s going to continue and flourish for the long term.  There’s a lot of energy and a lot of good minds behind this initiative and I’m looking forward to that.

As far as projects are concerned, the Data Set group has been busy further developing the Privacy & Security Risk Reduction Model.  There are some new frameworks coming out and a few other things that we will hopefully be able to announce fairly soon.  The projects are continuing to create and update helpful tools and frameworks which, to some extent, address the education question you asked me earlier.  Information Governance is one of those project teams that is working on some interesting items.  Also, we started in October with a monthly update, so we’re doing a better job of letting people know about all of the accomplishments of EDRM.  In retrospect, we should have been doing that a lot earlier.  You don’t realize on a day-to-day basis what we’re accomplishing, but when we put together a monthly update, we realize that we did accomplish a lot.  Our 2013 end of year update shows that there were several things we accomplished in 2013 that were valuable to the industry.  So, the future is bright for EDRM from a variety of perspectives.

With regard to Apersee, we’re still working to prove to providers that there is value in maintaining their profiles about their products and services.  We understand that it takes effort to do so and we’re still trying to demonstrate the value to them.  The more providers put into it, the more valuable it becomes to consumers.  The Apersee Special Requests are a bright spot. When we distribute Apersee special requests from the consumer, looking for a specific complex, time-sensitive service, we get dozens of responses from providers within minutes to a couple of hours.  Generally, the consumer tells us within a day or less “Stop, we’ve got enough responses, this is great.”  So, the effectiveness of the Apersee special request tells us that there is a need to be fulfilled.  We’ve been told by consumers that it’s very valuable service, so we’re excited about that.

Thanks, Tom, for participating in the interview!

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

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

Want to Avoid Unexpected Issues in Your eDiscovery Project? Conduct a "Pre-Mortem" – eDiscovery Best Practices

“Insanity is doing the same thing over and over again expecting a different result”.  To avoid that issue, experienced project managers know the value of conducting a “post-mortem” to discuss any problems encountered during the project and how to avoid repeating them in the future.  But, what if you could prevent them from happening in the first place?

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., 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.

These 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’ve noted before, 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, number of pages per document (when available), types of files being reviewed (some take longer than others), 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.

So, what do you think?  Do you perform “pre-mortems” 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.

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.

Another New Deliverable from EDRM – eDiscovery Trends

Do you know what container files are?  How about the L600 Code Series?  Do you know common methods for culling data?  What about the difference between a targeted and non-targeted collection strategy?

If you don’t know the answer to these and many other questions related to eDiscovery, you should check out the latest deliverable from the Electronic Discovery Reference Model (EDRM) Metrics team, the EDRM Metrics Glossary.

As noted in their press release announcement, the glossary contains definitions for 90 terms used in connection with the updated EDRM Metrics Model published in June 2013 (which was covered by the blog here).  The EDRM Metrics Model provides a framework for planning, preparation, execution and follow-up of eDiscovery matters and projects by depicting the relationship between the eDiscovery process and how information, activities and outcomes may be measured.

The new glossary was developed by the EDRM Metrics team, led by Kevin Clark and Dera Nevin with special assistance from team members Erin Corken, Eric Derk, Matthew Knouff, Carla Pagan, David Robertson, Bob Rohlf, Jim Taylor, Vicki Towne and Sonia Waiters.

The entire EDRM Metrics Glossary can be found here.

It has been a busy year for EDRM.  In addition to announcing a transition to nonprofit status by May 2014, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.  And, just a couple of weeks ago, EDRM published new Collection Standards for collecting electronically stored information (ESI).  And, there is still almost half a year to go before next year’s annual meeting.  Wow.

So, what do you think?  Will you use the new EDRM Metrics Glossary?  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.

Can’t Agree on eDiscovery? Try Using an eMediator – eDiscovery Best Practices

The Rule 26(f) “meet and confer” conference is a requirement in Federal cases as of the rules changes of 2006 to the Federal Rules of Civil Procedure.  It enables the parties in a lawsuit to discuss discovery and create a plan for the sharing of information during and before trial.  But, what if you can’t agree on how discovery should be handled?  Considering using an “eMediator”!

Allison Skinner and Peter Vogel recently wrote an article in Law Technology News (E-Mediation Can Simplify E-Discovery Disputes) that discusses the idea of using mediation for resolving discovery disputes.  As they note in the article, “What do lawyers fight about most in a civil lawsuit? E-discovery. So, it makes sense that mediation is appropriate for resolving discovery disputes.”

Some key recommendations from the article:

  • Lawyers for the litigants should agree to an eMediation at the outset of the case to develop a discovery plan that maximizes efficiency, reducing time and cost for the discovery process.
  • Expect for the eMediator to request the organization’s CIO (or CTO), general counsel, and outside counsel to participate at the beginning of the lawsuit.
  • Topics for which the eMediator will help facilitate discussion include naming the proper email custodians, identifying electronic evidence, and determining which evidence should be preserved to avoid spoliation claims later.
  • Like other instances of mediation, the discussion in an eMediation is confidential, the parties are given an opportunity to discuss eDiscovery candidly.  Your team can disclose information about the evidence without fear that they will later be deposed on the issues discussed during the mediation.
  • Each party should prepare an “eMediation Statement” to provide details about the dispute to help the eMediator understand the issues.
  • Be prepared to discuss search terms, databases, available technology, forms of production, and other issues for creating an eDiscovery plan of action with the mediator.

As the article notes, an eMediator “should be trained and experienced not only in eDiscovery, but in alternative dispute resolution” (ADR).  Depending on the type of litigation, the eMediator may also need to “have specialized knowledge in a particular practice area”.

Training programs for ADR are available at the American College of E-Neutrals, the University of California Hastings College of the Law, the Organization of Legal Professionals and The Sedona Conference.

For more on requirements and topics for the meet and confer, click here and here.

So, what do you think?  Have you ever used mediation for discovery issues?   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 Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

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.

Need to Make Key Discovery Decisions? Build a Tree – eDiscovery Best Practices

There are several decisions that the lead attorney has to make when a new case is filed.  Decisions made early in the life cycle of a case can significantly affect how discovery is managed and how costly the discovery process can be for that case.  Decision trees are a mechanism that can help attorneys plan for discovery by enabling them to make decisions up front that can lead to more efficient management of the discovery process.

What is a Decision Tree?

A decision tree is a decision support tool that uses a tree-like graph or model of decisions and their possible consequences.  It is essentially a flowchart in which each internal node represents a test on an attribute, each branch represents outcome of that test and each leaf node represents the decision taken after computing all attributes.

Have you ever prepared an analysis at the outset of a case to estimate the probability of winning the case and determining whether to litigate or attempt to settle?  Then, you’ve probably prepared some sort of decision tree to make those decisions.  You probably looked at the probability of winning, probabilities of different award amounts, extrapolated the costs for litigating against the potential award amounts and used that to decide how to proceed.  Today’s graphic provides an example of what a decision tree, drawn as a flowchart, might look like to represent that process.

Uses of Decision Trees in Discovery

Decision trees identify the available alternatives to tackle a particular business problem and can help identify the conditions conducive to each alternative.  Issues in discovery for which a decision tree might be warranted could include:

  • Decide whether to outsource litigation support and discovery activities or keep them in-house;
  • Select an appropriate discovery solution to meet your organization’s needs within its budget;
  • Decide when to implement a litigation hold and determine how to comply with your organization’s ongoing duty to preserve data;
  • Determine how to manage collection procedures in discovery that identify the appropriate custodians for each type of case;
  • Decide whether to perform responsiveness and privilege review of native files or convert to an image format such as TIFF or PDF to support those review processes,
  • Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel.

In addition to promoting efficiency in the discovery process by planning up front, decision trees can also promote consistency in handling cases.  Decision trees are a great tool for walking through the logic of the decision making process, which reduces mistakes in the process by making the process more predictable and repeatable.

So, what do you think?  Does your organization use decision trees in your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

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.

SWOT Away Uncertainty in Your Discovery Practice – eDiscovery Best Practices
 

Understanding the relationships of your organization’s internal and external challenges allows your organization to approach ongoing and future discovery in a more strategic process.  A “SWOT” analysis is a tool that can be used to develop that understanding.

A “SWOT” analysis is a structured planning method used to evaluate the Strengths, Weaknesses, Opportunities, and Threats associated with a specific business objective.  That can be a specific project or all of the activities of a business unit.  It involves specifying the objective of the specific business objective and identifying the internal and external factors that are favorable and unfavorable to achieving that objective.  The SWOT analysis is broken down as follows:

  • Strengths: characteristics of the business or project that give it an advantage over others;
  • Weaknesses: are characteristics that place the team at a disadvantage relative to others;
  • Opportunities: elements that the project could exploit to its advantage;
  • Threats: elements in the environment that could cause trouble for the business or project.

“SWOT”, get it?

From an eDiscovery perspective, a SWOT analysis enables you to take an objective look at how your organization handles discovery issues – what you do well and where you need to improve – and the external factors that can affect how your organization addresses its discovery challenges.  From an eDiscovery perspective, the SWOT analysis enables you to assess how your organization handles each phase of the discovery process – from Information Governance to Presentation – to evaluate where your strengths and weaknesses exist so that you can capitalize on your strengths and implement changes to address your weaknesses.

How solid is your information governance plan?  How well does your legal department communicate with IT?  How well formalized is your coordination with outside counsel and vendors?  Do you have a formalized process for implementing and tracking litigation holds?  These are examples of questions you might ask about your organization and, based on the answers, identify your organization’s strengths and weaknesses in managing the discovery process.

However, if you only look within your organization, that’s only half the battle.  You also need to look at external factors and how they affect your organization in its handling of discovery issues.  Trends such as the growth of social media, and changes to state or federal rules addressing handling of electronically stored information (ESI) need to be considered in your organization’s strategic discovery plan.

Having worked through the strategic analysis process with several organizations, I find that the SWOT analysis is a useful tool for summarizing where the organization currently stands with regard to managing discovery, which naturally leads to recommendations for improvement.

So, what do you think?  Has your organization performed a SWOT analysis of your discovery process?   Please share any comments you might have or if you’d like to know more about a particular topic.

Graphic source: Wikipedia.

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.

EDRM Publishes New Metrics Model – eDiscovery Trends

When I attended the Annual Meeting for the Electronic Discovery Reference Model (EDRM) last month, one of the projects that was close to a major deliverable was the Metrics project – a project that I worked on during my first two years as a participant in EDRM.  Now, EDRM has announced and published that deliverable: a brand new Metrics model.

As their press release notes, the “EDRM Metrics Model provides a framework for planning, preparation, execution and follow-up of e-discovery matters and projects by showing the relationship between the e-discovery process and how information, activities and outcomes may be measured.”  It consists of two inter-dependent elements: (a) The Center, which includes the key metrics variables of Volume, Time and Cost, and (b) The outside nodes, which identify work components that affect the outcome associated with the elements at the Center.  There is no indicated starting node on the Metrics Wheel, because any of the seven nodes could be a starting point or factor in an eDiscovery project.

Information at the Center

The model depicts Volume, Time, and Cost at its center, and all of the outside nodes impact each of these three major variables. Time, Cost, & Volume are inter-related variables that fluctuate for each project.

Outside Nodes

Here is a brief description of each of the seven nodes:

Activities: Things that are happening or being done by either people or technology; examples can include: collecting documents, designing a search, interviewing a custodian, etc.

Custodians: Person having administrative control of a document or electronic file or system; for example, the custodian of an email is the owner of the mailbox which contains the message.

Systems: The places, technologies, tools and locations in which electronic information is created, stored or managed; examples of systems include shared drives, email, computer applications, databases, cloud sources and archival sources such as back-up tapes.

Media: The storage devices for electronic information; examples include: CDs, DVDs, floppy disks, hard drives, tapes and paper.

Status: A unique point in time in a project or process that relates to the performance or completion of the project or process; measured qualitatively in reference to a desired outcome.

Formats: The way information is arranged or set out; for example, the format of a file which affects which applications are required to view, process, and store it.

Quality Assurance (“QA”): Ongoing methods to ensure that reasonable results are being achieved; an example of QA would be to ensure that no privileged documents are released in a production by performing a operation, such as checking for privilege tags within the production set.

A complete explanation of the model, including graphics, descriptions, glossary and downloadable content is available here.  Kudos to the team, led by Kevin Clark and Dera Nevin (TD Bank Group)!

So, what do you think?  Do you think the model will be useful to help your team better understand the activities and how they impact volume, time and cost for the project?  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.

Self-Collecting? Don’t Forget to Check for Image Only Files – eDiscovery Best Practices

Yesterday, we talked about the importance of tracking chain of custody order to be able to fight challenges of electronically stored information (ESI) by opposing parties.  Today, let’s talk about a common mistake that organizations make when collecting their own files to turn over for discovery purposes.

I’ve worked with a number of attorneys who have turned over the collection of potentially responsive files to the individual custodians of those files, or to someone in the organization responsible for collecting those files (typically, an IT person).  Self-collection by custodians, unless managed closely, can be a wildly inconsistent process (at best).  In some cases, those attorneys have instructed those individuals to perform various searches to turn “self-collection” into “self-culling”.  Self-culling can cause at least two issues:

  1. You have to go back to the custodians and repeat the process if additional search terms are identified.
  2. Potentially responsive image-only files will be missed with self-culling.

Unless search terms are agreed to by the parties up front, it’s not unusual to identify additional searches to be performed – even when up front agreement, terms can often be renegotiated during the case.  It’s also common to have a number of image-only files within any collection, especially if the custodians frequently scan executed documents or use fax software to receive documents from other parties.  In those cases, image-only PDF or TIFF files can often make up as much as 20% of the collection.  When custodians are asked to perform “self-culling” by performing their own searches of their data, these files will typically be missed.

For these reasons, I usually advise against self-culling by custodians and also don’t recommend that IT perform self-culling, unless they have the ability to process that data to identify image-only files and perform Optical Character Recognition (OCR) to capture text from them.  If your IT department has the capabilities and experience to do so (and the process and chain of custody is well documented), then that’s great.  Many internal IT departments either don’t have the capabilities or expertise, in which case it’s best to collect all potentially responsive files from the custodians and turn them over to a qualified eDiscovery provider to perform the culling (performing OCR as needed to include responsive image-only files in the resulting responsive document set).  With the full data set available, there is also no need to go back to the custodians to collect additional data (unless the case requires supplemental productions).

So, what do you think?  Do you self-collect data for discovery purposes?  If so, how do you account for image-only files?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

Chain, Chain, Chain: Chain of Custody – eDiscovery Best Practices

If you’re a baseball fan you probably remember Ryan Braun and the reported failed test for performance enhancing drugs that he successfully challenged by challenging the chain of custody associated with his blood sample.  When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is also an important part of handling that ESI through the eDiscovery process in order to be able to fight challenges of the ESI by opposing parties.  An insufficient chain of custody is a chain, chain, chain of fools.

Information to Track for Chain of Custody

ESI can be provided by a variety of sources and in a variety of media, so you need a standardized way of recording chain of custody for the ESI that you collect within your organization or from your clients.  At CloudNine Discovery, we use a standard form for capturing chain of custody information.  Because we never know when a client will call and ask us to pick up data, our client services personnel typically have a supply of blank forms either in their briefcase or in their car (maybe even both).

Our chain of custody tracking form includes the following:

  • Date and Time: The date and time that the media containing ESI was provided to us.
  • Pick Up or Delivery Location: Information about the location where the ESI was provided to us, including the company name, address, physical location within the facility (e.g., a specific employee’s office) and any additional information important to note where the data was received.
  • Delivering Party: Name of the company and the name of representative of the company providing the media, with a place for that representative to sign for tracking purposes.
  • Delivery Detail (Description of Items): A detailed description of the item(s) being received.  Portable hard drives are one typical example of the media used to provide ESI to us, so we like to describe the brand and type of hard drive (e.g., Western Digital My Passport drive) and the serial number, if available.  Record whatever information is necessary to uniquely identify the item(s).
  • Receiving Party: Name of the company and the name of representative of the company receiving the media, with a place for that representative to sign for tracking purposes.  In our form, that’s usually somebody from CloudNine Discovery, but can be a third party if they are receiving the data from the original source – then, another chain of custody form gets completed for them to deliver it to us.
  • Comments: Any general comments about the transfer of media not already addressed above.

I’ve been involved in several cases where the opposing party, to try to discredit damaging data against them, has attacked the chain of custody of that data to raise the possibility that the data was spoliated during the process and mitigate its effect on the case.  In these types of cases, you should be prepared to have an expert ready to testify about the chain of custody process to counteract those attacks.  Otherwise, you might be singing like Aretha Franklin.

So, what do you think?  How does your organization track chain of custody of its data during discovery?  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.