Ediscovery Trends

According to a survey released by Symantec, email is no longer the primary source of ediscovery responses.  While email can provide important communications and contextual information, loose files (such as Microsoft Office documents) and database files are being produced on an increasingly regular basis.  The inclusion of databases in particular indicates that more and more litigation could be focused on theft of intellectual property – when a disgruntled employee leaves one company for another, customer databases are a ripe target for theft.  Of course, confidential and proprietary documents are also high on the list, so look for companies to become even more litigious as their IP is increasingly at risk.

There are a couple of interesting developments in the case brought by Sony against George Hotz, one of the hackers who helped jailbreak the Playstation 3.

The first development is that a judge has allowed a subpoena to be issued to Geohot’s webhost, revealing the IP addresses of anyone who has visited Geohot’s website (Geohot is the online pseudonym for George Hotz – I’m sure you can figure out it’s origins) since January 2009.   In addition, subpoenas have been issued to YouTube and Twitter for information relating to George Hotz on those sites as well.

The latest development is that now George Hotz’s Paypal records can also be accessed, as Sony will attempt to use this information to show that California has jurisdiction in this case, rather than New Jersey, where Hotz resides.

What do you think?  Is the magistrate judge in this case overstepping his bounds, or does Sony have a right to dig up all the dirt they can on this hacker?

Ralph Losey has made an ediscovery training course available online.  According to the site, the bulk of the coursework will take 50 to 150 hours to complete.  Sure, you only get the first 15 modules for free (there are sixty modules total).  But registration for this course is free (it’s called Basic Registration), so at least you can take it out for a test-drive and if  it’s not up your alley, you won’t be forced to continue down that path.  Registration is open to everyone, so I’m probably going to take a look at this and see what’s inside.  It’s not everyday you get free ediscovery training – here’s a list of the modules from the syllabus.

According to Gabe’s Guide to Ediscovery, the job market for ediscovery professionals is about to heat up.  Does this mean I need to demand a raise or look for a new job?

I wonder how the candidates are going to differentiate themselves from one another – experience is important, but so is the ability to use the right tools for the job.  Legal services and litigation support vendors will be able to leverage this ediscovery surge into more lucrative contracts that have dried up over the past couple of years.

If the rise in work for ediscovery professionals continues, this may also lead to some traction on ediscovery certification efforts.  Considering the relative size and projected growth of the industry, it’s as good a time as any to start some sort of standardization for professionals.  Right now there are many diverse skill sets that ediscovery professionals have, but in order to move upward (or even laterally) within the industry there needs to be some sort of quality control over the workforce.

In a recent post, Paul Easton discusses an article on the traits of effective Legal Project Managers.  It’s a nice read, and affirms what I’ve been thinking in terms of roles for legal project managers.

First, there has to be methodology and documentation of processes.  As ediscovery rules change, PMs have to be able to adapt these new rules into their existing processes, and create new processes to accommodate new information.  If your legal project manager is unable to do this, it could mean they do not have a thorough grasp of what’s going on (or are powerless to implement changes).  If your PM has a good understanding of what’s going on, they will be able to offer quality suggestions for process improvements, and be willing to accept responsibility if something goes wrong.  The litigation support industry could always use more people like that!

Early Case Assessment is becoming an important part of the ediscovery landscape.  Those who have thorough ECA practices will often see an increase in ROI on cases as analytics tools become more robust.  Proper ECA practices allow a law firm to plan strategically for litigation, in addition to reducing overall ediscovery costs.  While ECA is not a money-saving silver bullet in every case, there are steps your law firm can take to reduce overall cost while improving the quality of output.

The first step is often to identify the key players in the pending litigation.  This is where you’re going to want to question key witnesses and construct an organizational chart of parties that may be involved.  With this data, you can better evaluate whether this litigation is going to be quick, or if you may need to dig in for a protracted battle.

At this stage, you now have enough information to issue litigation holds for key custodians and be able to determine the potential scope of ediscovery.  Server shares, mail accounts, document management software, and backup tapes should all be evaluated for litigation responsiveness.

There are further steps, of course, but at this point you should have a grasp of the amount of data that could potentially be involved in this litigation.  Additional steps will depend on the amount of data you have identified and collected, but you will likely want to load this into a document review platform (if the data set is small and is ready for attorney review) or into a tool with more robust features such as Clearwell or EMC’s Kazeon.

Early Case Assessment is an important tool for reducing overall cost and better preparing you for litigation.  The longer you ignore tools and processes like this, the faster you will fall behind the ediscovery curve.

Fulbright & Jaworski have released their 7th Annual Litigation Trends Survey.  EDD Update has a few of the highlights, including the result that regulation compliance is becoming a chief area of concern for survey respondents.

I also noticed that there are a high number of respondents that believe the Federal Rules of Civil Procedure should be pared down to limit the scope of electronic discovery in civil cases.  I have to generally agree, but I wonder what type of data should be off-limits for ediscovery?  If anything, I would like tape backups or other media that is not used during the normal course of business to be discoverable only if data was found to be intentionally or maliciously deleted.

Of course, I’m still somewhat surprised that more firms aren’t employing social media to their advantage, but then again, I wonder how much of an advantage can be really be had in this industry.  For example, the exposure/usage of a Facebook group is probably minimal for a law firm, but that’s no reason to avoid having a simple blog on your website.  I wouldn’t be surprised to see some ambitious junior associates willing to write a few paragraphs every month on interesting legal topics, and it offers a stage for impressing senior partners.

A few weeks ago, the annual Socha-Gelbmann Electronic Discovery Survey was released, highlighting several trends in the ediscovery market.

First, let’s start with market size: it appears that the overall ediscovery market grew in 2009, up 10% from 2008.  This is modest growth in good years, but in these lean times it shows that law firms have found value and are actually saving money by using ediscovery services.  Expect to see beat-the-market growth from the vendors who do the best job of culling document sets down, leading to less attorney document review work.

However, another recent trend may be pushing documents out of the hands of ediscovery vendors.  Targeted collection and preservation has made some of these document culling tools less useful, as attorneys gain experience in requesting specific documents during litigation.  The usefulness of the blanket “all documents relating to XYZ” request is outweighed by the cost of culling those documents down and then reviewing them.  This will be especially true as the data deluge continues, with ediscovery document sources becoming more numerous with no end in sight.

This is good news for many law firms engaged in litigation.  Instead of paying contract attorneys to review large swaths of varied documents, you can have those lawyers (and your experts) focus on a smaller set of documents, reducing cost.

Next post (later this week!) we’ll include some information on how the 2010 Socha-Gelbmann Electronic Discovery Survey relates to information management, and we’ll discuss a few other trends that we expect to continue in 2010 in the ediscovery market.

Quick news on the ediscovery front – AccessData and CT Summation are going to merge.  Summation iBlaze is one of the more popular document review platforms around, loved and despised by many litigation support professionals – it all depends on who you talk to and what coast you’re on.  CT Summation has other tools as well, such as CaseVault and Discovery Cracker.

AccessData has typically been more focused on the data collection side of the EDRM model.  Their core business is focused on computer forensics and cyber security, but this acquisition allows them to expand a bit more into the ediscovery realm.  It will be interesting to see how they integrate their Forensic Toolkit (FTK) and incident response software into CT Summation’s review and processing platforms.

It’s not exactly a surprise that CompTIA is expecting more companies to use ediscovery software in the coming years.  CompTIA is on top of this “story” largely because they’re one of the top IT certification companies in the USA.

Many companies are what I call “semi-prepared” for ediscovery work – the tools may be in place but they’ve never all been under the same ediscovery umbrella.  For example, informal internal investigations may be launched if an employee is suspected of embezzlement or theft of IP, but that may result only in the termination of the employee and not in any criminal charges (depending on the severity of the crime, of course).  IT workers may know how to capture packets across the network, but may not follow a certain set of steps that make the process transparent and able to hold up in court.

CompTIA is in a very good position to create and manage an eDiscovery certification shortly.  They released a paper called “Ediscovery Trends and Practices” at the end of 2009, which at the least demonstrates that they recognize the eDiscovery market as a growing market worth paying attention to.  I’d be curious as to see what the requirements are if CompTIA is going to offer a certification – there are quite a few separate and important tasks that could all be classified as ediscovery (data collection, document review, computer forensics, etc.), but I would hope it wouldn’t just be a generic “Ediscovery project manager” type of cert.  I’d personally want the cert to be a bit more technical and to demonstrate a thorough understanding of all necessary steps.

Of course, this is all under the assumption that CompTIA is going to offer Ediscovery certification, and they may never even do that – just speculation on my part!

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.

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.

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.