Ediscovery Trends

One of the best things about the current state of ediscovery is that it is accessible to all sizes of law firms.  Litigation support vendors are willing to take on smaller jobs once they have a proper EDRM workflow in place.  The infrastructure is in place, so why not use it?  During an economic downturn, law firms should be able to take advantage of reduced costs that many ediscovery vendors are currently offering.

I’m not sure how significant Toyota’s “Books of Knowledge” are, or who exactly knew about them, but withholding electronically stored information (ESI) is not exactly being forthcoming in litigation. Obviously, there are rules as to what must be disclosed and what information can be protected during discovery, but this isn’t very good news for Toyota.

The Posse List is reporting that a congressional committee found that Toyota “deliberately withheld relevant electronic records that it was legally required to produce in response to discovery orders in litigation”. This story will surely develop further, but it seems that the electronic evidence was not produced, and it’s doubtful that steps were taken to preserve this ESI.

Judge Scheindlin, who handed down several important opinions in a case entitled Zubulake vs. UBS Warburg, has sanctioned 13 plantiffs for improperly preserving ESI.  These sanctions were handed down despite the litigants acting in good faith – they had simply failed to preserve records from employees who may have been related to the litigation.  This action is called a litigation hold, and usually involves the preservation of data as soon as the party knows they may be subject to litigation.

The judge also differentiated between negligence and willful misconduct, claiming that only in cases of willful misconduct was the offending party required to prove that their negligence did not harm the opposing party.

This case sets an important precedent for future parties, and possibly lays some groundwork that other judges will be able to follow.  When it comes to ediscovery spoliation and tampering, the courts will not take this issue lightly.

Ralph Losey has a quick video rundown of his three keys to successful ediscovery.  Law firms need to start using technology to their advantage and work with their technology department, rather than fear new digital trends.  Cooperation from all parties involved in any litigation is also essential.  I also like the role of a modern Sherlock Holmes being cast as a computer forensics expert!  It’s a short video, and I recommend watching.

The American Bar Association has created one of the ugliest charts I’ve seen that lists comparisons of document review software.  It’s difficult to compare the features of all these products, so this chart can be useful, but it could also do more harm than good.  Litigation support professionals know the value of the EDRM model, and this chart doesn’t really help you plan for litigation, but rather just react to it.  Nonetheless, it’s nice to have a side-by-side comparison of some of the various document review platforms.  The information in this chart appears to have been supplied by the lit support vendors, so take the info with a grain of salt.  There are a couple of review tools that I haven’t heard of before, so I’ll be looking into those a little more closely.

Incidentally, the ABA does have a nice little Legal Technology area that caters to experts and newcomers to the legal-tech community.

As courts are beginning to better understand the many issues surrounding ediscovery and electronically stored information, parties are more often being required to meet to discuss these issues.  In fact, a court in Michigan decided to dismiss a plaintiff’s case recently due to the plaintiff deleting emails after receiving a notification to preserve emails from the defendants.

Not only is this an ediscovery issue, but it’s also a computer forensics issue.  When an individual or company knows they will be a party in litigation, there is a duty to forensically preserve any documents like email immediately.  When there is delay, especially when dealing with an individual, other things often happen – people get new computers and throw out their hard drives, or a virus could force them to reformat in order to have a working computer.  The creation of a forensically sound image is of paramount importance if you wish to get through litigation without being sanctioned.

Often when you’re faced with a problem with your litigation support software, it’s tempting to blame the vendor, either the one who sold you the ediscovery software, or the one who provided the load file.  But before we play that game, remember that those vendors are there to serve you, so take advantage of them!

Load files, for example, come in many different shapes and sizes.  Summation load files in particular can be problematic, and every law firm handles Summation databases differently.  Be sure to specify to your vendor what fields you want included, how you will load full text, and how you want the images for your documents numbered.  Summation load files have changed over the years, and you can bet the vendor that provided the file to you is probably up on the latest litigation support technology, so be sure to ask them why they did things a certain way.

Concordance load files are relatively simple, with separate files for the images, metadata, and fulltext.  This makes problems relatively easy to troubleshoot.

The point is not that one document review platform is better than another, but rather that your ediscovery vendor is probably very familiar with the software that they provide load files for.  If you’re having trouble, be sure to ask them for help – most vendors will do almost anything to retain a client!

Clearwell is clearly attempting to confuse me with their online presence.  It’s not like I really need any help though.  First they post a “Top Five Ediscovery Trends of 2010″ list on a website other than their own (which actually had more than 5 items), now they post a new “Top Ten Ediscovery Trends of 2010″ which doesn’t necessarily encapsulate all the information included in the original top 5.  Well, their new post has some interesting points, so let’s discuss!

First, I definitely agree that more firms should be taking advantage of early-case assessment tools.  Firms that do not take advantage of these tools are going to waste valuable time reviewing documents for a case that may or may not be worthwhile.  ECA tools can help a firm decide what a case’s scope will be, so they can be better prepared to handle it.

Again, we touched on this point earlier, but project management roles are going to become much more important in the litigation support community.  These roles could be a hybrid of litigation support and legal, who can keep track of all the electronic data requests surrounding a case and know which data is relevant to the attorneys.  I think the term “litigation analyst” might be a better term, as when I think of a “project manager” I usually wonder how they can “manage” to stay on the payroll!  zing!

I disagree with point six though – single platform solutions are still further down the road, as much as I’d like them to be an ediscovery trend.  The cold hard reality is that ediscovery professionals still use versatile tools like LAW and IPRO.  While there might be newer, shinier ediscovery software out there, the switching costs are too high for most vendors to consider, especially during a rough economic patch.

Linear review is dead – ha!  See above paragraph.  Plenty of firms that need document review are still locked into Summation or Concordance.  Those that are able shift towards more efficient document review methodologies will probably prosper like the first-movers they are, but unfortunately the old ways are still good enough to just barely get by.

Will EDRM be phased out?  If you think that lawyers are going to lay down their swords and start collaborating because it’s efficient, I’ve got a bridge I’d like to sell you.  How does collaboration increase billable hours again?  Sorry, but ediscovery rules are going to be established the hard way – lengthy brief after lengthy brief – until proper precedents are created.

Can good Ediscovery Tools reduce legal costs?  Of course they can!  The strange thing is, you may not seem like you’re paying $18K per gig (the Gartner report’s estimated cost for document review), but you probably are.  This is why it makes sense to control litigation costs at every step of the process.

The first thing to know is that you want as few potentially responsive documents as possible loaded into your document review software (Concordance, Summation, or iConect for example).  Before you even use those ediscovery tools, consider culling with a search tool that was designed to do a more in-depth analysis, such as Clearwell, Attenex, or kCura.  This way you’re not wasting resources by keeping a small army of document coders, but instead you’re reducing litigation costs by limiting the documents your coders need to review.

Litigation support vendors have been using these kinds of software platforms for years.  Don’t be afraid to change your ediscovery strategy, it very well could save you money in the long term!

Here’s an interesting interview with Alice Burns regarding legal project management.  Litigation support jobs are certainly going to take on more of a project management role moving forward, as lawyers are willing to sacrifice a bit of control in order to practice law (and leave the details to legal support staff).

Alice Burns discusses her clinic entitled “Project Management for Litigation”, ediscovery and litigation support certifications, PMP credentials, the use of a Six Sigma framework in litigation management.  There’s also an interesting chart demonstrating the different roles that a project manager needs to play in the litigation support industry.  The chart also lays out different responsibilities for different roles on your team – what paralegals should be doing, what internal lit support should be doing, what should be outsourced to vendors, etc.

While the post doesn’t mention ediscovery specifically, it’s a good primer if you’re looking for some insight into the complexity of litigation in today’s world.

Clearwell has a post (though not on their own blog), outlining what they project to be the top five ediscovery trends of 2010.

The first is a focus on early case assessment.  Right now, smaller ediscovery vendors benefit from law firms’ lack of ECA tools.  Once the ESI is collected, firms are going to want to know right away what they have, and whether this data will lead to future litigation.  If a litigation support vendor controls this data and has access to a powerful search tool such as Kazeon or Clearwell, this can be done quickly and accurately.

Another imp ortant trend is the growing role that project managers will take on litigation.  While lawyers may like to think they know every aspect of a case, the reality is that a good project manager should be able to keep track of what stage litigation is in from an EDRM perspective.  Litigation support services and lawyers are going to need to open the channels of communication to effectively manage this vast amount of data and find the needle in the haystack.

We’re not at the point where one ediscovery platform can effectively manage every aspect of litigation.  There is still a need for forensic collection, culling, and document review.  Currently, there is no litigation software that can handle all of this.  However, vendors are able of offer multiple software solutions to fit their clients’ needs.  If the amount of ESI collected is small, a vendor can move it to a document review platform right away.  For larger collections, a vendor can offer a culling tool.  If the data collection itself may become a point of contention, ediscovery vendors will need to employ forensic experts willing to testify before the court.

This last point is especially important when it comes to implementing data from social networking sites into litigation.  Facebook and Twitter data is difficult to locate on most hard drives, and care should be taken when it comes to extracting this data.  Forensic collection becomes more than just an afterthought in the process.

Litigation support vendors will continue to evolve to meet the needs of clients in 2010.  Ediscovery and forensics firms will continue to merge and build symbiotic relationships.

Ediscovery disputes are becoming a contentious point for opposing parties.  Either defense counsel claims an ESI search is too broad, or plaintiff’s counsel complains about the timeliness of the response, and soon enough litigation slows to a crawl.  An Ediscovery mediator might be the solution.

Of course, for this plan to work, the mediator must possess a deep understand ESI and it’s role in the discovery process.  The mediator must set guidelines for ESI preservation, production, and timeliness of responses.  Sounds like a great idea – depending upon the scope of the case, of course!

Ajilon and Fios are teaming up to create a new ediscovery services partnership.  They are to be a start to finish solution, though according to the EDRM, it looks like they don’t address digital forensic collection.  That’s the only complaint from me – litigation support costs can be reduced by combining document review services with more traditional litigation support services.

Forensic collection still needs to be addressed in this scenario.    While some litigants don’t have the need for a permanent solution and can address this on a case-by-case basis, in the long term a dedicated document management system will prove to save money.

Project management will be another important piece to the Ajilon/Fios offering.  Overall, this is smart play in this market and I expect to see more mergers of complementary services in the coming months.

I’m amazed when I hear the stories from document review attorneys.  If it’s not an “80 docs per hour” mandate, then I hear “but NONE of these documents are relevant”!  A little bit of litigation technology can go a long way, reducing your overall review costs and getting back to the legal issues at hand.

First, ask yourself what the scope of the ESI collection was.  Are you going to pay a contract attorney to review every document in your set?  Their time (and your money) is better spent if you prioritize dates, custodians, and filetypes first, so they’re not reviewing an entire mailbox full of calendar appointments before they know what’s relevant.

Early case assessment tools can be deployed to cut down on the overall review load.  The metadata extracted before the eDiscovery process is very critical in order to use early case assessment software.  Too many law firms go right to offshoring or outsourcing, which drastically impacts the quality of document coding.  Instead, ask your litigation support personnel about how you can save money and actually improve the quality of your coding at the same time!

When making a decision on whether or not to outsource an ediscovery job, there are many questions you may wish to ask yourself.

Accurately assessing the volume of ESI to be reviewed is crucial.  Can your litigation support team manage the workload and properly leverage your internal ediscovery solution?  What resources will opposing counsel be using?

After answering those questions, check out the EDRM model.  Where is your firm in this stage of litigation?  Are you in an early phase – forensically preserving and collecting documents, or are you looking for a solution to search and cull documents?  Maybe the overall volume of ESI is small and you’re looking to review documents, or ready to produce them to opposing counsel.

As the linked article says, there is usually a need for balance in ediscovery.  It’s important to stay on top of new technologies in litigation support software – this area is always changing and efficient vendors can emerge quickly.  Consult your legal team about their needs for each particular case so you are on the same page.

According to research done by TREC, keyword searches are largely ineffective at locating key documents.  Best practices include working with opposing counsel to identify key terms and dates.  Finding a proper date range can easily pare down the documents that you will eventually pay a contract attorney to review.

Coming up with good keywords is also a high priority when asking opposing counsel to search documents.  If your keyword list is too broad, you will return far too many documents (and possibly be seen as overly burdensome), and if your terms are too narrow, you’re not going to find that smoking gun you’re looking for.  Try to think of reasonable a minimum and maximum number of documents that would be acceptable to review, given the scope of the litigation you’re facing.

Don’t be afraid to go back to opposing counsel to modify your request for production of documents, but be sure to properly review the existing documents you have.  You don’t want to ask multiple times to expand the scope of production, so be patient with the document review process before doing anything drastic.  Of course, check in with your litigation support staff to see if there are any ways to more quickly and effectively search the documents you already have.

In email forensics, it’s important to realize the scope of the data that you are dealing with.  While I agree with some of this blog post on email collection, when important litigation is involved, a computer forensic expert is a must.

The main reason you do not want your internal IT admin exporting emails for you is that often the person who recovered the data will be called upon to testify before the court.  A certified computer forensics professional has the experience and proper methodology to refute claims (such as spoliation, for example) made by opposing counsel.  A reputable ediscovery or digital forensics shop should have certifications and the expertise to help plan the most efficient way to collect, cull, and review your documents.  Proper planning for litigation can ensure that you’re using resources wisely and not throwing good money after bad.

However, if your firm uses Exchange and is simply conducting some sort of internal investigation, then the DIY approach to data collection is probably just fine.  Make sure to know the limits of your IT staff though – data collection can be a long process and they may not have the resources to do the job as quickly as a dedicated forensics firm.

Bow Tie Law discusses an interesting case involving an ediscovery dispute.  Unfortunately, the plaintiffs made a motion to compel before even reviewing the defendant’s production.

What was agreed upon was that both parties would provide responsive custodian lists, and that emails between the parties would be produced.  The plaintiffs wanted hard drives imaged, network shares produced, and didn’t even bother to review the emails.  Of course, the cost of hiring a computer forensics expert is burdensome if the scope of the case does not warrant it.  I don’t know what was involved in this particular case, but not even glancing at the responsive documents is mildly embarrassing.

This case shows that ediscovery needs should be addressed far prior to the discovery process.  Unless document management software reduces the burden on producing parties, no firm should be required to go to such extreme lengths in litigation.

Was just reading the Clearwell Ediscovery blog and have to agree that the most significant rule of the new ediscovery pilot plan is one that creates an ediscovery liaison.  This pilot program is only being tested in the Seventh Circuit Court, but is an important milestone for the progress of electronic discovery. Often in litigation, the scope of preservation and other requests are far too burdensome.  Document management software is a requirement for any business that is likely to be involved in litigation.

Of course a company like Clearwell provides software that makes it easy to quickly cull and preserve responsive documents.  Their software provides excellent document management during the course of litigation.  Their search technology allows document review costs to be reduced drastically, so document review software can be used more effectively.

Electronic Discovery and Litigation Support are increasingly important aspects to law firms.  Computer forensics becomes an issue that can make or break a case.  By streamlining the document management process in preparation for litigation, firms are able to save money by taking ediscovery software in-house.

Because ediscovery costs continue to rise, many law firms are able to take advantage of litigation software as more than just a document management system, but also as a potential avenue for revenue.  Litigation support software helps lawyers find relevant information quickly so they can continue to practice law rather than review documents.