Ediscovery Trends

In the process of litigation, it is sometimes necessary to conduct a full-scale document review.  Your litigation support vendor probably has a few ideas on how to approach such a large project, but the sticker shock can be a bit overwhelming.  Let’s look at what you’re really getting into when you need to budget for a document review project.

The first thing to look at is how many total documents you have, and what your resources are expected to be.  If you have ten million responsive documents and an unlimited budget, then you can afford to pay attorneys to review them all by hand.  But if you only want the documents that are most relevant to your litigation, I’d recommend culling the data set through an advanced search platform.

While the upfront cost for some vendors like Clearwell or Kazeon may be high, the long-term savings are there, especially for large projects.  You don’t need to hire 20 attorneys to sit in a room for months reviewing documents – not only can you reduce the overall volume of responsive documents, but you can also classify them much more efficiently than was previously possible.

After your data set is culled down, you’ll want to look at a review tool that can handle what you want to do with these electronic documents.  If it is a small case, you may wish to review them locally, but if it’s a large case involving multiple law firms, you will need to make sure that the documents can be securely accessed online.

I’ll offer more tips on effective document review sometime next week.

Found an interesting post on the topic of knowledge management and records management.  The post makes the point that if you want to know where ediscovery is going, you have to look at how knowledge management functions.  All those cutting edge, collaborative tools like wikis, instant messaging, intranets, etc. is tomorrow’s ediscovery.  How are you going to organize a document review around a wiki?  Are you going to track when each change was made, and when each page was accessed?  Are you going to be able to pull old versions of an internal blog to look for hints of inside information in the comments?

Most ediscovery review tools are focused on static documents – email, spreadsheets, PDFs.  But in businesses where knowledge and collaboration are critical to success, answering the “which party knew what information, and when” questions will be important to maintaining an aggressive stance when faced with the possibility of litigation.

Apparently Kroll Ontrack suggests that applicants for Litigation Support Project Manager positions have PMP certification.  Curiously, they also would prefer those with a business-related degree to a computer science related one.  PMP stands for Project Management Professional, and proves that you are willing to spend several hundred dollars to add three capitalized letters to your resume.  And the company that hands them out – yeah, it’s called the Project Management Institute!  I believe you also must take classes from the PMI to qualify.  Don’t get me wrong – I’m not mocking those who have this certification, as it shows that they are willing to do things that other project management candidates are not, but this use of certifications certainly isn’t helping hire the best and brightest in the ediscovery field.

The post also points out that Kroll would like their PM’s to have a bachelor’s in finance, not in computer science or any related technical field.

We’re going back to basics here with some definitions, since it’s not always clear what is meant by a legal hold (aka litigation hold).  Basically, if your company’s legal counsel thinks that you will be subject to litigation soon, they will issue a legal hold, which means that you are required to preserve certain documents and records (as opposed to destroying them after they are no longer needed).  For electronic discovery, this often means that tape backups should be preserved rather than re-used, and that any electronic documents should be saved in their current state, almost as if encased in amber like a mosquito in Jurassic Park.

After all potentially responsive documents are preserved, then any documents that are not relevant to the litigation may be discarded.  This is called culling, and can be done with a number of litigation support software packages.  Most of these document review platforms come with some kind of search functionality, so you can reduce the number of documents quickly by only find docs authored by a certain person, or within a certain date range.

Finally, until the litigation has been resolved, the litigation hold is ongoing, so any documents that are produced that relate to or reference the litigation may be discoverable.  In addition, if any data is found to have been deleted or otherwise altered, sanctions may be imposed on legal counsel for a failure to properly issue a legal hold.

Microsoft’s Sharepoint Server 2007 has some limited eDiscovery functionality baked in to the software.  It’s mostly used for legal holds, and can only be used with the Records Center site template.  But with Sharepoint Server 2010, expect more features and functionality.

First of all, any site collection is now able to be targeted by Sharepoint’s Legal Hold functions, not just the Record Center site.

Sharepoint will also now be able to search your site collections for data that could be subject to a legal hold.  Finally, Sharepoint Server 2010 will also be able to export these search results into a separate repository for review and analysis.  No word yet on whether you will be able to export into a document review platform or EDRM XML.

For more info on ediscovery and Sharepoint 2007, check out this link.

Here’s an interesting (and lengthy) blog post on the case Lawson v. Sun Microsystems, Inc. 2010 WL 503054 (S.D. Ind. February 8, 2010).

Essentially, during the course of ediscovery in this case, defense counsel decided they were going to produce some privileged ediscovery in a password-protected format.  Plaintiff (not plaintiff’s counsel) then proceeds to crack the password (if you don’t know much about password-cracking, let’s just say that it can be more trivial than one might think), and then informs his attorneys about it, with an email titled, “Password protected files – Unlocked!”

Yeah, that’s going to anger some people, namely opposing counsel, who moved for sanctions.  As it turns out, everyone was at fault.  The plaintiff obviously shouldn’t have been cracking open privileged documents, plaintiff’s counsel had never even read or noticed the email, and defense counsel really shouldn’t have been producing privileged documents anyway.

I suggest you read the whole post – it’s a very good case-based analysis of ediscovery ethics.

Here’s a slightly different approach on an old ediscovery problem: what to do with all this data?  Because data lives in so many different places, and there are so many different ways to get at the data, perhaps this non-preservation of specific ESI is the way to go.

One important thing that happens when parties agree NOT to preserve certain data is that their costs go down.  Instead of worrying about litigation holds on a multitude of complex systems (tape backups, voicemail, email, network traffic, browser history and cache, logs, etc.), the parties agree not to preserve certain things so that the company can continue with day-to-day operations.

I’m not sure this solution is ready to be widely implemented yet, but it’s a good start when it comes to reducing overall legal costs.  Some electronic discovery sources are not going to necessarily find you information pertinent to litigation, or are simply too costly to recreate in a meaningful way (like backup tapes).  This approach is keeping ediscovery sources confined to the realm of documents “kept in the ordinary course of business” and without placing a burden on that business.

Found an interview with Stephen Chan from ZL Technologies, which is a storage management company.  He thinks that the future of ediscovery is in the cloud, mainly because companies are watching dollars more closely:

Well, cloud is all going to continue to provide a lot of the benefits. I think that proponents have always spoken up which is a lower TCO, less resources and less management overhead for the companies that utilize the cloud. I think the challenge will always be to ensure that the solutions are of equal and similar capabilities as the on-premise solutions, which I don’t, again, I don’t feel that there’s any reason for there to be any difference. The trend going forward will be this. I think that you see, especially, in this economic climate you have a lot of companies, which are really focusing on their costs.

And because of that, cloud computing makes a lot of sense for them. But once they make that decision, once that sort of let’s say for example, its cost in this case that gives them that impetus to get over the edge and say, okay, we’re going to go cloud. What we’ve seen is once they decide to cloud in any fashion, maybe initially it’s just a storing a little data out there, the application’s still internal but they’re using cloud storage to store the data. It’s actually a very small hump for them to go over and push everything out there.

Interesting article on a new iPhone app called BarMax, which poses a challenge to the established BarBri.  Both are prep courses for passing the bar exam.  BarMax’s new iPhone app costs $1000, the maximum allowed by the iTunes Music Store.  BarBri had previously charged several thousand dollars for their services (but did not have an iPhone app), so this $1000 BarMax app is actually driving prices down!  BarMax also has several positive reviews already.  Legal test prep is big business!  Found via.

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.