Ediscovery Trends

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.

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!

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.

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.