Sound project management is vital to any eDiscovery matter.  Without it, data can be overlooked, budgets overrun, deadlines missed, and defensibility compromised.   To ensure that your eDiscovery matter is managed properly, you need more than just a good project manager; you need a well thought-out process that incorporates quality assessment and control.

To find out how ways you can streamline the eDiscovery process, avoid missed deadlines,  and minimize the potential for costly errors and challenges by opposing counsel, please join LDMglobal for a webinar on “The Keys to eDiscovery Project Management”.

The webinar will be held Thursday March 11th at 11:00 AM EST, 4:00 PM GMT, and will feature Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz. 

LDM Global is a company we know well.  It provides services to some of the world’s largest companies.   They have an enormous footprint in the pharmaceutical industry vis-a-vis e-discovery work.   We have been working with them in both the U.S. and in Europe in their search for project managers.   They “get it” as far as the fact that different countries and courts require different formats and strategies for crafting responses.   We met their team at LegalTech New York this year, and we are meeting them again in a few weeks in London.   They have great resources in all aspects of discovery, from regulatory compliance to complex litigation support.

Maura Grossman is a member of The Sedona Conference® Working Groups on Best Practices for Electronic Document Retention and Production, and on International Electronic Information Management, Discovery, and Disclosure.  She assisted in drafting and editing The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process (May 2009).

This past fall The Posse List saw Maura give a brilliant presentation on the challenges of search at the Georgetown Law Advanced E-Discovery Institute (click here).  She is on the faculty of the Georgetown Law E-Discovery Training Academy where this year she gave a presentation on the mapping of the steps of the e-discovery process, an exploration of the full spectrum of procedures and strategies that might occur during the e-discovery process.

Maura is a powerhouse in the e-discovery world and this event will be well-worth attending..

You can register for this webinar by clicking here.   If you require any further details about this webinar, please contact Rebecca Dealtry, on rdealtry@ldmglobal.com  or +44 (0)20 7613 1160.   

On Thursday, March 11th, at 1:00pm Catalyst is sponsoring a webinar discussion exploring recent e-discovery trends regarding privileged documents, including the Facciola-Redgrave protocol for privilege analysis and best practices for creating privilege logs.

This presentation will include:

* Analysis of key aspects of the Facciola-Redgrave Framework for avoiding a document-by-document privilege review. 

* Assessment of ways to integrate enhanced privilege search and culling into your e-discovery strategy;

*  Review of key elements of privilege reporting and practices to document effectively.

To register for the program  click here.

There has been much discussion about privilege, how the volume of information produced by electronic discovery has made the process of reviewing that information, to ascertain whether any of it is privileged from disclosure, so expensive that the result of the lawsuit may be a function of who can afford it.    Judge Facciola and  Jonathan Redgrave  (cochair of the Georgetown Law Advanced E-Discovery Institute and a partner with Nixon Peabody) published an article in the Federal Court Law Review which presents “The Facciola-Redgrave Framework”.   

They submit that the majority of cases should reject the traditional document-by-document privilege log in favor of a new approach that is premised on counsel’s cooperation supervised by early, careful, and rigorous judicial involvement.  That cooperation, having first led to an agreement as to what categories of information will be eliminated from any privilege review because the information is so clearly not privileged or so clearly privileged, will then focus on categorization of the information that must be reviewed.

The article in the Federal Court Law Review can be accessed here.

19 November 2009

Reporting for The Posse List:  Gregory Bufithis, Scott Madsen and Alex Hania

Last week Georgetown Law CLE, in cooperation with the Sedona Conference, presented its 6th Annual Advanced E-Discovery Institute.  It was one of the best conferences we’ve attended on e-discovery and that is based on the content covered, the experts/luminaries in the e-discovery field that spoke at the panels, and the interaction between the audience and the panels plus the informal sessions.  Moreover, the Institute had an all-star U.S. judicial bench in attendance:  Magistrate Judge John Facciola, Magistrate Judge Paul Grimm, District Court Judge Nan Nolan, Magistrate Judge Andrew Peck, District Court Judge Lee Rosenthal, District Court Judge Shira Scheindlin and Magistrate Judge David Waxe, who participated on multiple panels, and even sat in on many of the sessions and provided input — both from the panels and the audience — and who made themselves available during the breaks and informal sessions.  It was a great “hands on learning” e-discovery experience.

The non-judicial roster of e-discovery experts was just as impressive and rather than list them all we have provided a link to the full list (click here).

The Keynote Address

Judge Lee Rosenthal gave the keynote titled Is the E-discovery Process Broken, and, If So, Can It be Fixed?

Judge Rosenthal was appointed a United States District Court Judge for the Southern District of Texas, Houston Division in 1992.   She was appointed chair of the Civil Rules Committee in 2003 and served during the “restyling” of the Civil Rules and the adoption of the electronic discovery amendments. In 2007, Chief Justice Roberts appointed Judge Rosenthal to chair the Judicial Conference Committee on the Rules of Practice and Procedure, which coordinates the work of the Advisory Committees for the Civil, Criminal, Evidence, Appellate, and Bankruptcy Rules.

She spent a good part of her speech on the results of a Federal Judicial Center report which surveyed federal cases that terminated at the end of 2008.  The big surprise:  the costs of civil litigation are not escalating out of control due to the mounting burden of e-discovery.  You can access the full report by clicking here.

According to the report, over 70% of the attorneys in cases involving e-discovery reported having no problems with discovery.  Disputes over e-discovery occurred in less than 2% of those cases (a fact repeated several times by the judges attending the conference) and almost all involved disputes about the form of production.

Other points Judge Rosenthal raised:

– cases that involve electronically stored information (ESI) were  more expensive than cases without ESI

– most cases settled with only about 1% coming to trial

– in settled cases, 60-70% of the attorneys said the cost of e-discovery had no bearing on the settlement

As Dennis Kiker of Fios, Inc. said in his blog post (click here) the general trend of the responses is in surprising contrast to the results of the joint report of the American College of Trial Lawyers Task Force on Discovery (ACLS)and the Institute for the Advancement of the American Legal System (IALAS) which reported that 71% of attorney surveyed believed that discovery was used as a tool to force settlements.  Dennis offers a  number of factors that might explain the discrepancy.

Some of the other points raised by Judge Rosenthal:

–  a litigation survey showed only 5% of the parties had used data sampling

– sixty percent of corporations did not have any litigation holds, which can be dangerous

- - two important cases to read on e-discovery are Twomley (the adequacy of pleadings) and Iqbal (the “facial plausibility” pleading sufficiency test applies to all federal civil actions)

– there has been a lack of success of District Court Judges to control discovery (TPL thought: the magistrates intimidate them)

– proportionality is in the national debate and an adequate set of controls need to be applied to achieve proportionality.  This was the mantra repeated throughout the 2-days of the conference

– The Sedona Conference Proclamation of Co-operation is a good starting point for collaborative e-discovery

– Effective e-discovery should include a reasonable cost component.  The ACLS and IALAS report (cited above with link) discusses 29 principles to promote effective e-discovery including early identification of issues and better control to contain costs, fact based pleading, narrow requests for production, more early discussion and more judge involvement

–  Rule 16 helps expedite discovery and contains items for courts to narrow litigation including active judicial management.  Rule 16 and 26(f) are notably underused.

Potential fixes for the system:  there are several pilot programs currently being conducted, notably one in the 7th circuit with the goal of incentivizing early discussion and e-discovery being resolved as an example of Rule 26(f) information sharing and co-operation.

And the big take-away from the Judge’s presentation:  the judges are in a good position to take a long look at e-discovery at the May 2010 Annual Meeting and Judicial Conference at Duke University where the FRCP Rules committee will revisit, among other things, judicial involvement and settlement issues.

The Sessons/Panels

There were 18 sessions/panels and we could not cover them all.  We tried to focus on those most relevant to our readership, as diverse as it is.  Click on the title to go to each summary:

The E-Discovery Case Law Update

Unified communications – the game changer in e-discovery

Advanced Search and Retrieval Technology

How E-Discovery “Fits” into Civil Litigations

E-Discovery in Federal Investigations

Cross-border E-Discovery & International Data

Concluding Judicial Roundtable on ESI Discovery Problems, Solutions

Future Georgetown Law CLE Programs

Through our new affiliation with Georgetown Law we will be proving details in the near future on Georgetown Law Center’s E-Discovery Training Academy program in March 2010.  The Academy is rather unique in that it offers a comprehensive practical training of attorneys, practice support professionals and technical specialists in the entire spectrum of legal strategies and technological services that constitute the full practice of e-discovery.  The Academy is the only program of its kind affiliated with a major law school and has gained national prominence following the success of its inaugural course of study in February, 2009.

We will also have information on Georgetown Law CLE’s 14^th Annual Corporate Counsel Institute (also to be held in March 2010) developed in cooperation with the Association of Corporate Counsel (ACC) which focuses on practical, relevant and comprehensive topics.  This program will be repeated in London in April as Corporate Counsel Institute – Europe.

Please provide any comments or feedback via the “Comment” box below, or email us at manager@theposselist.com

15 November 2009

The presentation on Advanced Search and Retrieval Technology was made by Jason R. Baron, Maura Grossman and Ralph Losey, all powerhouses in the e-discovery world.

Baron and Losey started off with their multimedia PowerPoint presentation (to the tune of Darude’s Sandstorm which we had just seen at the Capital One Future of Search conference  and it blew away the crowd – and us, too, again.  In a nutshell, ediscovery is expanding exponentially and Ralph Losey talked petabytes, and exabytes — not terabytes. This was the “beta version” of a presentation that Losey and Baron will give at LegalTech in New York City this coming February.  

As an introduction (not necessary for this audience but a great set-up nonetheless) Jason said there are technologies available to help the litigator reduce the costs of reviewing and producing ESI while at the same time accomplish the objective of responding to a request for production.  Most commonly used by litigators today are review tools that enable reviewers to review the ESI in an online repository.  Vendors that provide these review tools also typically offer filtering and processing services, where they take ESI that has been collected, and, behind the scenes, apply filters to the ESI to narrow the volume to the ESI that is likely to be relevant to the request for production.

A popular filter is the application of keywords, developed by the litigator, to the collected ESI. After applying the keywords, the vendor provides a “frequency report” or “hit list” of the number or percentage of documents that hit on a particular keyword so that the litigator can evaluate the efficacy of the selected keywords.  

There may be various iterations of this process until the litigator approves the results in the frequency report.  The vendor then processes the filtered ESI and uploads it to a web-based review tool for the review to begin.

There is also new automated technology called “early case assessment” technology that has entered the marketplace, and which review tool vendors are rushing to add to their current products. This technology allows for a thorough front-end look at the volume of ESI collected in response to the request for production, instead of just the ESI that is filtered, processed and uploaded to the review tool. Thus, by using this new technology, the litigator can find the “significant documents” very early on in the case instead of waiting until the end of the review process after the reviewers have reviewed and “tagged” the significant documents.

Moreover, this technology enables the administrator and/or the litigator to perform keyword searching and other filtering on their own without incurring any additional charges and without having to rely on the vendor for these services. This technology also provides automated analytics so that the litigator can obtain a high level understanding of the ESI, which can identify key players, lines of communications between custodians and types of significant documents. This knowledge will help shape the review and the litigator’s investigation of the facts of the case.

Maura Grossman then followed with what we thought was a brilliant presentation on the challenges of search.  Our review cannot do it justice (we have links below to background material provided by Maura and Jason) so just some high points from her presentation:

1.  There is no way to review everything manually, in large matters, in the time frames dictated by the typical litigation or investigation.

2.  Manual review does not scale well, and how the cost of responsiveness and privilege review can quickly dwarf the costs of all of the other stages of the e-discovery process.

3.  Lawyers are not nearly as talented at search as they think they are.  The Blair and Maron study (in 1985) was the first study to demonstrate the significant gap or disconnect between lawyers’ perceptions of their ability to ferret out relevant documents, and their actual ability to do so.   In a 40,000 document case — consisting of 350,000 pages — the lawyers estimated that their searches had identified 75% of the relevant documents,  when, in fact, they had only identified about 20% of them.

4.  The use of keywords, alone, is unlikely to reliably produce all relevant documents from a large, heterogeneous document collection, for a whole host of reasons, including:

     a.  That information retrieval is already a very difficult problem when it involves plain vanilla, English-language, text documents. That problem is magnified when you address a multi-lingual set of documents, with nontextual forms of ESI, such as photographs or audio and video files, which are typically not searchable.

      b.  The inherent ambiguity of language, in particular:

            Synonymy = there can be considerable variation in describing the same person or thing, i.e., diplomat, ambassador, consul, official, etc.

           Polysemy = the same term can have multiple meanings, i.e., Bush (referring to two presidents; a shrub; a place in Africa; a thick furry tail; “bush league,” among other slang usages). Strike (referring to a labor activity; the act of hitting; the baseball kind; finding oil or gold and “striking it rich;” and so on).

       c.  The ubiquity of human error, i.e., misspellings and typos (there were 250 different spellings for the word “tobacco” in the MSA database; “management” will miss managment” and “mangement”).

       d.  Abbreviations (i.e., “P&C/ACC”); colloquialisms (i.e., Haynes & Boone / H&B / HayBoo); slang; code words; and new short-forms used in text messaging and IM (i.e., “FWIW”, “LMAO”).

      e.   The problem is compounded by optical character recognition (“OCR”).

      f.  Poor records management, including lack of organization and/or proper labeling, the reflexive use of “Reply” even when the subject matter of an email has changed, and so on.

      g.  Deadlines and resource constraints that place practical limits on what can be achieved.

       h.  And finally, there is a widespread failure to employ “best practices” in the area of search and retrieval. Lawyers believe that because they know how to use Westlaw, Lexis, and Google, they know how to do search, but finding a few good examples of something is a very different task than finding as close to all of that thing as possible, without also including a lot of junk.

So, what are the “best practices” for keyword searching?

1.  You start with the complaint, the subpoena, or the request for production. First  you determine: who are the relevant custodians?  what is the applicable time frame?  what terms-of-art are employed?  

2.  Then, you translate what the request is seeking into plain, everyday English to get as close as possible to the terms that people are most likely to use in their daily communications.

3. Try to have a couple of different people do this to ensure that you are getting the benefit of multiple interpretations of the requests and potential keywords from different vantage points.

4.  This is the basic starting point for your search-term list.

5.  Next—and this is the step that is most often overlooked by lawyers—you must seek input from the people who actually created, sent, or received the documents.  These are your best subject-matter experts.

6.  Ask them questions like:  “Who would be most likely to have created, sent, or received emails or documents on these subjects?”  “What distribution lists would have been used?”  “What time frame would these emails or documents cover?”   “What events would these emails or documents discuss?”   “What names, words, or terms would be likely to appear in these emails or documents?”  “What abbreviations, acronyms, slang, or code words might have been used?”   “If you were looking for emails or documents responsive to these requests,  how would you go about finding them?”  “What kinds of attachments would these emails have?”

7. If warranted by the stakes of your matter, consider whether an hour or two of a linguist’s or substantive expert’s time would help you to significantly improve the quality of your search term list.

8. Next, look at a bunch of documents that you already know to be responsive (for example, some that you obtain from a key custodian).  Ask yourself, what unique words or phrases distinguish these documents? In what context do the documents appear? (If you are using a search tool that employs machine learning, these documents can be the start of your “seed” or training set.)

9. If possible, have your vendor index the documents in the set and provide you with a list of the words that appear in the documents, ranked from most to least frequently appearing. Use that list to identify documents that are likely to be unresponsive (“birthday,” “baby shower”) or privileged, and to identify search terms you may have missed.

Ok, there was a lot more.  To help, here is a link to Jason and Maura’s slides (click here).

Some  suggested references:

* Craig Ball has a paper on his website summarizing search steps.   It is entitled “Surefire Steps to Splendid Search” (June/July 2009) (Click here).

* The Sedona Conference® Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (Aug. 2007 Public Comment Version) (click here)

*  The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process (May 2009 Public Comment Version) (click here)

* The National Institute of Standards and Technology (NIST) Text REtrieval Conference (TREC) 2009 Legal Track (click here)  

Take-Away Messages from the panel

1.  Success in search requires a well thought-out process with substantial input at the front-end and some degree of testing, sampling, feedback and/or iteration.

2.  The amount of testing, sampling, feedback and/or iteration should reflect the same proportionality considerations inherent in all discovery, i.e., the amount in controversy, the time and resources available, the importance of the evidence to the determination of the dispute, etc.

3.  Different search approaches are best for different tasks. For example, some things are simply easier to search for than others, i.e., patent or pharmaceutical litigation versus evidence regarding off-shore accounts or document destruction/shredding.  Do you need a few good examples, or are you trying to find “all”?

4.  There is no guarantee that any search method will identify all responsive documents in a large, homogeneous data set, and different search methods can produce different result sets. Hybrid or fusion approaches tend to be more successful, but are also more costly and time-consuming.

5.  Automated technology can help, but its not the “end-all-be-all.” Due diligence is absolutely necessary in this current “Wild West” marketplace.

6.  At least some degree of transparency and collaboration is necessary. Obviously, an agreed-upon search methodology (or search-term list) is preferable to a unilateral approach that is subject to second-guessing and “do-overs.”  Parties must be able to explain what they have done and why it is reasonable under the circumstances. 

7.  It is important for practitioners to keep up with the case law, research, and literature in this area because it is quickly evolving. There are consultants (including linguists and statisticians) who have expertise in this area and can help devise or mediate a reasonable search protocol if the parties cannot agree on one.

A  (very) brief note on Text REtrieval Conference (TREC)

TREC was mentioned several times at the panel (and all during the conference) especially the opportunity of  participating in the 2010 TREC Legal Track.  We will have a detailed post on TREC before the year out but just a short “bio” on TREC from Ellen M. Voorhees of the National Institute of Standards and Technology (NIST) who was scheduled to appear but could not:

Evaluation is a fundamental component of the scientific method: researchers form a hypothesis, construct an experiment that tests the hypothesis, and then assess the extent to which the experimental results support the hypothesis.  A very common type of experiment is a comparative experiment in which the hypothesis asserts that Method 1 is a more effective solution than Method 2, and the experiment compares the performance of the two methods on a common set of problems.

The set of sample problems together with the evaluation measures used to assess the quality of the methods’ output form a benchmark task.  Information retrieval researchers have used test collections, a form of benchmark task, ever since Cyril Cleverdon and his colleagues created the first test collection for the Cranfield tests in the 1960’s. Many experiments followed in the subsequent two decades and several other test collections were built.

Yet by 1990 there was growing dissatisfaction with the methodology. While some research groups did use the same test collections, there was no concerted effort to work with the same data, to use the same evaluation measures, or to compare results across systems to consolidate findings. The available test collections were so small—the largest of the generally available collections contained about 12,000 documents and fewer than 100 queries—that operators of commercial retrieval systems were unconvinced that the techniques developed using test collections would scale to their much larger document sets. Even some experimenters were questioning whether test collections had out-lived their usefulness.

At this time, NIST was asked to build a large test collection for use in evaluating test retrieval technology developed as part of the Defense Advanced Research Projects Agency’s TIPSTER project. NIST proposed that instead of simply building a single large test collection, it organize a workshop that would both build a collection and investigate the larger issues surrounding test collection use. This was the genesis of the Text REtrieval Conference (TREC). The first TREC workshop was held in November 1992, and there has been a workshop held annually since then.

We will have a detailed post on TREC before the year out.

15 November 2009

The Institute ended on Friday with a reconvening of the Federal Judges panel that opened the program the first day.  Much was discussed (generated by questions from the audience) so we’ll highlight only some of the major points:

1.   There was much discussion about privilege, how the volume of information produced by electronic discovery has made the process of reviewing that information, to ascertain whether any of it is privileged from disclosure, so expensive that the result of the lawsuit may be a function of who can afford it.   In fact Judge Facciola, who led the discussion, announced that he and Jonathan Redgrave (cochair of the Georgetown Law Advanced E-Discovery Institure and a partner with Nixon Peabody) have an article in the Federal Court Law Review which presents “The Facciola-Redgrave Framework”.  They submit that the majority of cases should reject the traditional document-by-document privilege log in favor of a new approach that is premised on counsel’s cooperation supervised by early, careful, and rigorous judicial involvement.  That cooperation, having first led to an agreement as to what categories of information will be eliminated from any privilege review because the information is so clearly not privileged or so clearly privileged, will then focus on categorization of the information that must be reviewed.

The article was published over the weekend in the Federal Court Law Review and can be accessed here.

2.   Lawyers can no longer plead ignorance about e-discovery technology.  Yes, it has become nuanced and sophisticated and in many cases is not inexpensive.  As was repeated throughout the conference whenever “proportionality” had a chance to raise its head, the merits of a case can easily be overshadowed by discovery costs and complexity.   But there are very smart software vendors out there, and independent EDD consulting companies, who can get attorneys through the myriad formats and technology  to identify, preserve, collect, review, etc. the discoverable ESI.   And there are a flood of CLEs. 

3.  Which brought up another major point: the growing clamor for “certification” in e-discovery.  Said the collective judges (ok, there was one dissent): “not necessary”.  As the judges said, why add another administrative layer on an already cumbersome process?  There are CLEs, conferences, seminars, webcasts, etc. galore on computer forensics and electronic discovery for lawyers (and contract attorneys were mentioned), paralegals, support professionals, etc. to learn.  And these venues are proliferating and the process, the performance is getting better.  More and more people “get it”.  And thanks must go to Georgetown Law and The Sedona Conference and other venues … and the audience … for getting the word out.

And vendors are doing all they can to sponsor live seminars, webinars and webcasts to not only present their services but also to provide as much e-discovery education as they can. 

Besides, said one judge, ”we have Rule 11 to enforce competency”.  

The more practicable move is to get e-discovery into the l aw schools through such efforts as the Georgetown E-Discovery Academy as well as what John Tredennick at Catalyst is doing at the University of Virginia, Ralph Losey and Bill Hamilton at the University of Florida, and the program at the University of Richmond (for our earlier post on this topic click here).

4.  The panel rounded out the session with a few comments on US v. Skilling (5th Cir. 1/6/09).   In the prosecution of Jeffrey Skilling, former CEO of Enron, the government sufficiently complied with its Brady and Giglio obligations by providing the exculpatory material, along with hundreds of millions of pages of other documents, and left it to the defense to figure out what it wanted, the 5th Circuit held. The 5th reasoned that the government did not simply dump the material, but rather provided a searchable electronic file, a set of documents it thought important, indices, and access to databases of related litigation. Additionally, the government was in no better position than the defense to find relevant material, and there was no evidence the government tried to hide the exculpatory material in bad faith.  However the U.S. Supreme Court has agreed to hear the case (click here).

The roundtable was a nice way to end the conference.

12 November 2009

The presentation was titled Information Everywhere: Understanding New Technologies and Coping With New Problems and was presented by Judge James Francis (U.S. Magistrate Judge in the Southern District of New York), Anne Kershaw (founder of A. Kershaw, P.C.), Thomas Morrissey (responsible for the development and implementation of technology supporting the Office of the General Counsel at Purdue Pharma) and George Rudoy (Director of Global Practice Technology & Information Services at Shearman & Sterling LLP).

They covered virtualization, unified communications and cloud computing.  First up:  unified communications.

Unified communications (UC) is the integration of real-time communication services such as instant messaging (chat), presence information, IP telephony, video conferencing, call control and speech recognition with non real-time communication services such as unified messaging (integrated voicemail, e-mail, SMS and fax).

More and more corporations are moving to UC and it will present/is presenting enormous e-discovery nightmares.  First, some basics:

UC is not a single product, but a set of products that provides a consistent unified user interface and user experience across multiple devices and media types.  UC refers to a trend to offer “business process integration” which means (basically) a process to simplify and integrate all forms of communications in a company to optimize business processes, and manage flows.

So, for discovery, you have EVERYTHING in one place.  It kind of … kind of … makes search easier.  You have the whole story in one spot.  Or as Anne Kershaw said it is like the old days when you went to the file cabinet and went through the correspondence in a file and you said “oh, I see, he wrote this, then she wrote that, and he said this …”

UC allows an individual to send a message on one medium and receive on another. It makes it possible to easily transfer any activity or message to another medium. For example, one can receive a voice mail message and choose to access it through email or a cell phone. If the sender is online according to the presence information and currently accepts calls, the response can be sent immediately through text chat or video call.

The difference between unified communications and unified messaging is this:  unified communications refers to both real-time and non-realtime delivery of communications, where unified messaging systems culls messages from non-realtime sources.

For business, UC it is a no brainer:  it represents a concept where multiple modes of business communications can be seamlessly integrated.  UC integrates all the systems that an employee might already be using and helps those systems work together in real time. For example, unified communications technology could allow a user to seamlessly collaborate with another person on a project, even if the two users are in separate locations. The user could quickly locate the necessary person by accessing an interactive directory, engage in a text messaging session, and then escalate the session to a voice call, or even a video call – all within minutes. In another example, an employee receives a call from a customer who wants answers. Unified communications could enable that worker to access a real-time list of available expert colleagues, then make a call that would reach the necessary person, enabling the employee to answer the customer faster, and eliminating rounds of back-and-forth emails and phone-tag.

Note: the panel provided a video from Microsoft (not to sell Microsoft but to show how this all works) and you can access these videos by clicking here.

However … the e-discovery concerns.  And will the e-discovery concerns slow adoption as companies learn that the move away from traditional phone service includes the conversion of voice mails into e-mail in the form of wave (audio) files.

In the event of litigation, they are discoverable in either case, but in electronic form these audio files must be converted to text because wave files are difficult to search because as audio files there is no actual text information to pull out the document during a search.

Failing a completely accurate technology option, the best protection is a sound business process for the handling of voice mails in any form. All the panel recommended handling voice mails on wave files as part of a company’s document retention (and deletion) policy.

And … like any document, voice mails can provide the smoking gun that determines the outcome of a lawsuit.

The panel did not believe there was an increased legal risk by going to unified communications (companies are storing more voice mail as a result of the conversion to unified communications) but since traditional voice mail already is discoverable, converting voice mail to electronic form makes files more accessible to more people.  And it also makes them easier to store and move around, if not search.

But it triggers issues surrounding legal holds and the “duty to preserve” since these concepts/principles applies to all relevant existing or subsequently created data.  As one panelist said, upon issuance of a litigation hold notice or on receipt of a discovery request a company would have to suspend its retention policy and halt destruction of potentially all voice messages on the voicemail server.  Each message would have to be reviewed for a relevance determination.  Prohibitively time consuming and expensive.  Maybe the relevance of the message may be identifiable based on the context of the metadata regarding the sender, recipient and date/time received? 

A complex, complex area.   But regardless of the digital technology, it all must be integrated in a data retention/deletion policy.

Bottom line:  unified communications promises to pave the way for more collaborative business practices and greater productivity, but it also means the general counsel and his/her ESI manager have another set of issues.  Because while while real time communications like IM, VolP, web and audio conferencing make business workflow easier it also brings inherent risks including security, compliance and e-discovery.

12 November 2009

The first session was a truly all-star U.S. judicial panel: Magistrate Judge John Facciola, Magistrate Judge Paul Grimm, Magistrate Judge Nan Nolan,  Magistrate Judge Andrew Peck,  District Court Judge Shira Scheindlin and Magistrate Judge David Waxe, moderated by Kenneth Withers, Director of Judicial Education and Content for The Sedona Conference.

The focus was on the five major subject areas in discovery, and the seminal cases for each (click on the case name for a link to the case):

1.  Preservation           Adams v. Dell, Inc., 2009 WL 910801 (D. Utah arch 30, 2009)

Judge Facciola (who led the discussion on the case) summed up the case by saying “with nobody in charge, with no retention policy, the company in effect screwed itself.  The company had basically empowered the employees”. 

There was a lively discussion among the judges (often arguing against each other) over how a company can “be reasonably made to understand” the duty to preserve evidence for litigation.  But, as one judge pointed out, it is not easy.  You know where you stand with the IRS:  7 years to retain records.  But the whole “in anticipation of litigation” concept … it’s tough.  And as numerous attendees said “our corporate clients tell us that they don’t run a business in anticipation of litigation.  Anybody might get sued.”

The case:

In this patent infringement case, the plaintiff sought sanctions against the defendants for failing to produce relevant emails that it alleged would prove the defendants’ piracy of the plaintiff’s patented and proprietary technology. The defendants insisted their email servers were not designed to archive emails. Rather, individual employees themselves determined which emails to retain.

The court explained that the defendants’ reliance on their employees’ judgment in deciding what to preserve was not an adequate retention policy. The court denied the defendants’ reliance on Rule 37(e) and held the spoliation was not the result of a “good faith” or “routine” removal of electronic data.

In addition, the court determined that the duty of preservation arose several years prior to this lawsuit being filed, in the context of a related class action involving the same technology as the patent.

The court reserved decision on the appropriate sanction pending the close of discovery when the degree of prejudice could be determined.

2.  Form of production    Aguilar v. Immigration  2008 WL 5062700 (S.D.N.Y.  Nov 21,  2008).

This case addresses how metadata fits into discovery and the use and application of Rule 34.  As the judges pointed out, an attorney can request a specific form of production but the best request is “give me all your ESI in the manner of which you maintain it” because it costs money to strip out.  And, as Judge Rosenbaum pointed out, it is probably best to do it all in native, really.

And, said all the judges on the panel, the Aguilar judge was doing what all judges should be doing:  providing solutions/options for the immediate case and just pontificating wide principles.

The case:

In a civil rights class action suit, the parties did not discuss the production of metadata in their Rule 26(f) conference and only mentioned it “in passing” by letter before the defendant had completed its document collection efforts. Later, the plaintiff requested that the defendants produce metadata from emails and electronic documents, and produce any spreadsheets and databases in native format.

The defendants objected on relevance and burden grounds and proposed to produce all ESI as text-searchable .pdf format documents. The court engaged in a detailed analysis of the discoverability of metadata, drawing on the rules, the case law and Principle 12 of The Sedona Principles (Second Edition), concluding that timely requests for relevant and accessible metadata are routinely granted, but courts are reluctant to order a second production if metadata was not originally requested, nor will courts order the production of metadata or production in native format unless the metadata or format are relevant or will materially aide in search for relevant information.

The court declined to order the defendant to repeat the collection of active email from employees or to attempt to capture email metadata from backup media. The court further found that the production of metadata related to word processing and PowerPoint documents would not materially enhance the plaintiffs’ ability to search the relatively small production nor was the metadata more than marginally relevant to the plaintiffs’ claims, and it would only order production if the plaintiff assumed all costs.

The court ordered the production of spreadsheets in native form, as the defendant had expressed a willingness to do so.

Finally, the court ordered that the defendant to demonstrate its hierarchical database for the plaintiff in a “training environment” using dummy data, to allow the plaintiffs’ expert to identify what metadata may be necessary to request. 

Note: there was also brief mention of Armor Screen v. Storm Catcher 2008 WL 5262707 (S.D. Fla. Dec 21, 2008) wherein the defendants moved to compel a second production of documents in a form that would not require them to purchase software to view. The court determined that there was a software program available for $1,700, and the defendants’ failure to exercise reasonable options or discuss this matter in the Rule 26(f) conference suggested a lack of effort on the part of the defense counsel. The court denied the motion to compel discovery and ordered the moving party to pay the prevailing party’s costs and attorney’s fees.

3.  Proportionality    In re Rail Freight Fuel Surcharge Antitrust Litigation 2009 U.S. Dist. LEXIS 56748 (D.D.C. July 2, 2009)

Proportionality proportionality proportionality.  The buzz word today as it was at the Masters Conference (click here) and the ACC Annual Meeting (click here).

The judges discussed how discovery sought cannot be overbroad and must be relevant to any genuinely contested issue, and that the plaintiff must demonstrated any significant, unexplained, or prejudicial failure in the defendant’s production of documents or ESI.

They also said counsel simply must “work together productively and treat each other civilly” and not use “zealous advocacy” as or combative litigation tactics.

And courts were no longer allowing parties to plead ignorance when it comes to e-discovery and technology.

The case:

In this class-action antitrust case for price-fixing of Rail Fuel Surcharges, the plaintiffs contended that discovery on both class certification and substantive issues should proceed simultaneously rather than be phased before and after a finding by the court on class certification.

The court held that since elements necessary to prove class certification and the merits of the case were inextricably linked, the plaintiffs should be able to attain discovery before class certification; however, this decision did not relieve the parties’ obligation brief the issue of class certification by the date scheduled in the case management order, and therefore the plaintiff and defendant must allocate their discovery priorities accordingly.

The judge then went on to note that “I appreciate that this is a compromise but I can only hope that like any compromise it will displease both parties equally.”

Also mentioned:  Newman v. Borders, Inc. 257 F.R.D. 1 (D.D.C. April 6, 2009) where the court noted that given the almost universal use of email in business communication, the plaintiff should have put the defendants on notice that it wanted to discuss the company’s document retention program so that the defendants could properly prepare for the deposition. Citing the Sedona Conference® Cooperation Proclamation, the court held that it is the judge’s obligation to help move the case along since the attorney’s fees most likely had already dwarfed any recovery that could be awarded.

4.  Privilege and Rule 502

Two cases provide the setting:

Rhoads Industries, Inc. v. Building Materials  2008 WL 4916026 (E.D. Pa. 2008)

In a suit by a construction company for breach of contract, the plaintiff inadvertently produced 800 electronic documents it claimed were privileged, and the defendants moved to deem the privilege claims waived. Noting that Fed. R. of Evid. 502(b) establishes a national standard for consideration of claims of privilege waiver, the court nevertheless resorted to prior Third Circuit precedent and a five-factor balancing test.

Analyzing the plaintiff’s document review procedures in detail the court found that “its efforts were, to some extent, not reasonable.” However, the court relied a factor of the Third Circuit test that does not appear in Rule 502(b) — the overall interests of justice — to find that the defendants had not met their burden of proof that privilege had been waived for documents that appeared on the privilege log but had been inadvertently produced. In a subsequent decision, 2008 U.S. Dist. LEXIS 96404 (E.D. Pa. Nov. 26, 2008), the court clarified its opinion and provided explicit instructions for the logging of email strings that contain both privileged and non-privileged messages.

Heriot v. Byrne  2009 WL 742769 (N.D. Ill. March 20, 2009)

In this action over ownership of copyrights, the plaintiffs inadvertently produced privileged documents. In ruling on the defendants’ motion to bar the plaintiffs from clawing back the documents, the court held that attorney-client privilege and work product doctrine attached to documents between defendants and their consultants. The court held that Fed. R. Evid. 502 applied to the issue of waiver of privilege by inadvertent production, and that existing Seventh Circuit precedent could be used to determine whether the production gave rise to a waiver under Rule 502(b).

Among other things, the court found that the plaintiffs had undertaken a reasonable pre-production privilege review and that there was no duty to undertake a post-production review after a vendor had mistakenly produced the documents. The court also found that the plaintiffs had acted promptly to assert their privilege claims.

5.  Search warrants       U.S. v. Comprehensive Drug Testing  473 F.3d 915 (9th Cir. 2006)

Our favorite case of the session, and a complex one indeed.

Comprehensive Drug Testing (CDT) administered testing of professional baseball players for steroid use under the collective bargaining agreement between the players and Major League Baseball. Federal law enforcement investigators had reasonable cause to suspect ten specific players of steroid use. The government secured a grand jury subpoena in the Northern District of California seeking all “drug testing records and specimens” pertaining to Major League Baseball in CDT’s possession; obtained a warrant in the Central District of California authorizing a search of CDT’s facilities in Long Beach; and obtained a warrant from the District of Nevada for the urine samples on which the drug tests had been performed, which were stored in Las Vegas.

The subpoena in the Northern District of California was quashed, and motions under Fed R. Crim. P. 41(g) for the return of records and specimens were granted. The government appealed all three district court decisions, which were upheld by an en banc panel of the Ninth Circuit. The appellate court issued detailed guidance to all judges considering subpoenas or search warrants for computer data from non-parties in a criminal proceeding.

The guidance included:

(1) magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases;

(2) segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant;

(3)  warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora;

(4) the government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents; and (5) the government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.