On Thursday, March 3, from 1-5pm, the University of Richmond Journal of Law & Technology (JOLT) will host a symposium, “Electronic Discovery in a World of Cloud Computing, Data Hoarding, and Social Networking,” in the law school’s moot court room. Approved for 3.5 CLE credits, the symposium is free and open to the public. Held in conjunction with the publication of JOLT’s Annual Survey, the symposium will feature the survey’s contributors speaking on the latest legal issues in technology and of the application of e-discovery law.

Presenters include keynote speaker Chief Magistrate Judge Paul Grimm for the U.S. District Court of Maryland, who has published some of the most important opinions on e-discovery during the past five years. Grimm will speak about the implications of Federal Rule of Evidence 502 on e-discovery.

Other speakers include:

• Jason R. Baron, director of litigation for the National Archives, presenting his article exploring trends in e-discovery search.
• Bennett Borden, co-chair of the Williams Mullen e-discovery section, presenting his article summarizing 2010 developments in e-discovery law.
• Anthony J. Diana, partner at Mayer-Brown, presenting an article he co-authored on e-discovery in social media.
• Maura Grossman, counsel at Wachtell, Lipton, Rosen & Katz, presenting an article she co-authored on the proficiency of technology-assisted e-discovery review.  
• Leslie Haley, senior assistant ethics counsel, Virginia State Bar, presenting on the ethical hazards posed by the digital age.

For full details click here.

5 January 2011  - Many legal pundits have repeatedly called for teaching e-discovery at law schools.  No one in the e-discovery world can miss what the digital information revolution has done to dramatically alter the discovery process.  Nobody has beat this drum more loudly than Ralph Losey, a reigning e-discovery guru (click here).

But if you don’t want to wait for your law school  …. or you are well beyond your law school years but need to catch-up on e-discovery … Ralph Losey has come upon the answer.  Ralph is launching a new online mass collaborative e-discovery program and The Posse List is assisting to spearhead the effort.

We are not providing academic credit or certification (but some state CLE accreditation for practicing lawyers may come later; Ralph’s working on it).  The judges’ panel at the recent Georgetown Law Advanced E-Discovery Institute discussed how superfluous subject-matter certification would be.  They preferred well-grounded CLEs and training programs. 

Ralph’s e-Discovery Team program is just that, but it’s online. You study at your own time, your own place, your own pace.  The instruction includes videos from the judges who make the law (including Judge Ron Hedges, Judge Paul Grim, Judge John Facciola, Judge  David Waxse) and the lawyers who write about e-discovery everyday (Craig Ball, Jason R Baron, Steven Gensler, George Socha, Ken Withers) … just to name a few. 

What’s covered?  Everything, from Sedona to the EDRM, and the thoughts and opinions of almost all of the leading industry experts and judges. It is a basic level course, for lawyers and students alike, almost identical to the online course Ralph taught in law school this summer.   

The online course consists of sixty-one classes, called modules, and covers all key topics in electronic discovery law.  Each module takes an average of thirty to forty minutes to complete and has assignments of from one to two hours each, depending on how long the reading and research takes you. In addition, several top e-discovery vendors will soon offer supplemental instructional programs, demos, and exercises designed exclusively for the program. 

And you will have different levels to choose from so that you can elect to have a version with or without an online expert-professor interaction.  Fees will range from zero (the first quarter is free without professor interaction, so that you can try it without risk), to $1,500 for the full program. 

We’ll have a detailed post after the first of year with all the details on the levels and specific costs, the detailed syllabus, how to sign up, the special Posse List registration code, etc.

We hope it has been a good holiday season for all.

19 September 2010 — As we have stated numerous times in our ediscovery/data management “thought leaders” series (click here)  we face a tsunami of data.  For a good discussion of how this all evolved read our interview with the “Master Sensai E-Discovery Gurus” Ralph Losey and Jason R. Baron (click here)  and see their brilliant presentation Did You Know which you can access on YouTube (click here).

Yes, the amount of data is staggering.  As a further recent example, an August survey conducted by Symantec revealed that just backup tapes alone are storing documents on indefinite hold in enterprise libraries that would stretch to the moon and back 13 times with enough left over to circle the globe seven times (for the Symantec survey click here)    And according to the study storing all this data makes it harder to find what you’re looking for. It is now 1,500 times more expensive to review data than it is to store it, Symantec estimates. Backup windows, meanwhile, are so overloaded that weekend backups are taking more than a single weekend these days.

So, with the accelerating increase in electronically stored information along with the changes in the Federal Rules of Civil Procedure and the courts (Federal and state) tsunami of decisions, how do you control and manage the data?  Technology.  As a result, lawyers must become technologists. 

And you must become technology savvy if only for the simple reason to increase your abilities, advance your career — in other words propel your personal agenda.

Earlier this year Donna Seyle posted an article (you can read it on JDSupra by clicking here) in which she said lawyers must “embrace technology”.  While her article was geared toward the law firm and innovation she addressed the existing situation for all lawyers:  the massively influential rise of social media marketing, blogging, networking, data management, etc. demands it.  And no more so than those of us involved in e-discovery.

It is why we launched The Electronic Discovery Reading Room (click here)  to provide Posse List members a “go to” site which (hopefully) provides the information to learn about the tech behind e-discovery.  It is why we set up two job listservs that post jobs for lawyers needed in various legal technology areas and legal project management (to get on any of our lists follow the instructions posted on our site (click here).

You can do simple things like working your way through the Sedona Conference E-Discovery Glossary (now in its third edition) which is the most comprehensive e-discovery we have found.  It provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.  You can download it for free by clicking here. 

Or look at our weekly “Top 10 … plus more” list of interesting blog posts, and views on electronic discovery related issues and other tech developments from the past week (for our latest click here) and our “Vendor Clips” which provides vendor views and industry news from electronic discovery-centric vendors and commentators (for our latest click here)

And go to a legal technology conference near you.  All offer free admission to the exhibit hall (those that have them) where you can meet technology vendors, see the technology at work behind e-discovery, etc.  Many allow free access to students or limited 1-day passes for free admission.  We attend about 15 conferences a year in the U.S., and about 8 in Europe and Asia.  We meet vendors, gain info — and sign up vendors who post jobs on our job lists.

Note:  we receive media credentials from each conference which allows us to attend these conferences for free.  We then conduct interviews, attend seminars, etc. and post our coverage on this site.  If you’d like to assist The Posse List in covering conferences send your resume to media@theposselist.com

There are conferences all over the country and the world.  For example check out this list (with thanks to Rob Robinson of Orange Legal Technology who provide us an updated list on a weekly basis):

eDiscovery Events

SEPTEMBER

IBA: 14th Annual Competition Conference
September 17-18, 2010
Florence, Italy
Click here for more information.

IQPC: 8th Annual Cold Chain Distribution for Pharmaceuticals
September 20-23, 2010
Philadelphia, PA
Click here for more information.

Canadian Forum on Court Technology
September 22-23, 2010
Ottawa, Canada
Click here for more information.

ALM – Virtual LegalTech
September 23, 2010
Online
Click here for more information.

Second Annual Intermountain eDiscovery Conference
September 24, 2010
Salt Lake City, UT
Click here for more information.

Argyle Executive Forum: 2010 Chief Legal Officer Leadership Forum
September 29, 2010
Chicago, IL
Click here for more information.

OCTOBER

The Masters Conference
October 4-6, 2010
Washington, DC
Click here for more information.

2010 NFPA Annual Convention
October 7-10, 2010
Cherry Hill, NJ
Click here for more information.

Gartner Symposium: ITxpo 2010
October 17-21, 2010
Orlando, FL
Click here for more information.

EDRM Midyear Meeting
October 19-20-2010
St. Paul, MN
Click here for more information.

DRI Annual Meeting
October 20-24, 2010
San Diego, CA
Click here for more information.

The Sedona Conference:  Patent Litigation XI
Oct 21 – Oct 22, 2010
Phoenix, AZ
Click here for more information.

ACC Annual Meeting
October 24-27, 2010
San Antonio, TX
Click here for more information.

2010 Techno Forensics & Digital Investigations
October 25-26, 2010
Gaithersburg, MD
Click here for more information.

Sedona Conference, Antitrust Law & Litigation XII
October 28-29, 2010
Phoenix, AZ
Click here for more information.

NOVEMBER

InfoSecurity – Netherlands
November 3-4, 2010
Utrecht, Netherlands
Click here for more information.

InfoSecurity – Russia
November 17-19, 2010
Moscow, Russia
Click here for more information.

Gartner Identity and Access Management Summit
November 17, 2010
San Diego, CA
Click here for more information.

Gartner Data Center Summit
November 22-23, 2010
London, UK
Click here for more information.

DECEMBER

Gartner Data Center Conference
December 6-9, 2010
Las Vegas, NV
Click here for more information.

ALM – Virtual LegalTech
December 14, 2010
Online
Click here for more information.

As Ron Friedmann has noted, one of consequences of the paradigm shift in the legal industry is that “what is bad news for law firms could be good news for legal technology managers and legal technology professionals.”    Law departments must act to reduce legal spend.  If GCs don’t, CFOs and CEOs will step in.   Law firm have lost pricing power and face a battle for market share.  Winning that battle will require that firms offer clients more value.  To do so, firms will get serious about process improvement, project management, outsourcing, and alternative fees.  

As we have noted in numerous posts, law firms must deploy/have been deploying new technology and new expertise but also using  old technology more effectively.   This has required more business and technology professionals, in temporary/contract capacities.  And the existing contract attorney base — and its newest members — provide that. 

In the last year we have seen a spike in our membership coming from ex-BigLaw associates, former trial lawyers, government lawyers, forensics consultants, and others.   And more contract attorneys have moved into project management roles and information technology roles. 

And it is the reason that our job posts for substantive temporary legal work has increased dramatically.  For those on our job lists, you know that the legal recruitment industry is characterized by an enormous surge in demand for temporary legal professionals.  Our job lists have greatly expanded in both geographic range and subject areas.   

In spite of all the challenges we face in today’s job market, we are working in a part of the legal industry that is unusual because it is open to sharing and collaboration, through publications, quality conferences, and trade shows, and peer networking organizations.  Use these resources.   think outside the box.  Take part.

7 May 2010 — A federal judge in Los Angeles has declined a request by plaintiffs lawyers in a shareholder class action to force attorneys for Toyota Motor Corp. to turn over documents that were provided to Congress, which has been investigating vehicle recalls associated with sudden unintended acceleration defects.

Instead, U.S. District Judge Dale Fischer of the Central District of California on Monday ordered the parties to reach a discovery agreement on their own within a week.

The suit, filed on Feb. 8, is the first shareholder class action to allege that Toyota’s executives and directors made false and misleading statements to shareholders regarding the defects.  For the full article from the National Law Journal click here.

Lawyers for the plaintiff  had asked Fischer to lift a stay on discovery and instead order that documents relevant to the case be preserved or turned over.   Under securities law, discovery is stayed in a shareholder case if a judge has yet to rule on pleading motions, such as a motion to dismiss.

The plaintiff lawyers pointed to “serious allegations” that Toyota failed to disclose the defects such as the fine imposed by the National Highway Traffic Safety Administration (see our previous post by clicking here).

And they brought up claims in a wrongful termination suit brought by a former in-house attorney at Toyota, Dimitrios Biller, that Toyota destroyed or hid evidence in hundreds of products liability suits, plus the issue of the documents produced to Congress (see our intro piece on the Toyota litigation by clicking here).

This is a situation The Sedona Conference has focused much of its efforts on:  calling on lawyers to work more collaboratively during the discovery phase so that greater time and attention (and money) can be spent on litigating the merits of the underlying dispute.  But its success was premised on getting the judiciary to support its ideals. As we have reported in numerous posts from numerous conferences, judges used to rarely be involved in discovery, but with recent amendments to the Federal Rules of Civil Procedure regarding e-discovery, judges now play a central role.  It is an issue that Ralph Losey has written about in numerous posts.  For a sample of his commentary click here.

And while skeptics argue that the adversarial nature of litigation will likely always encourage scorched-earth discovery battles, it is more than judges telling lawyers to ”play nice”.  As Jason R. Baron, director of litigation for the U.S. National Archives and Records Administration, once told us and has written about:  ”It’s not about helping the other side; that’s crazy. It’s about fighting over the substantive matters of law, and not spending all of the client’s money on discovery.”

For all of our Toyota litigation coverage click here.

Reported by:  Scott Madsen, Esq. / The Posse List Editorial Staff

Deborah Baron (Vice President, Legal & Compliance, Autonomy) moderated the session titled “Taking Compliance and E-discovery to the Cloud”.   (For a video interview of Deborah discussing cloud computing with Ari Kaplan click here).

The panel participants: Jason R. Baron (Director of Litigation, National Archives and Records Administration & Co-Chair, The Sedona Conference Working Group on Electronic Document Retention & Production); Browning E. Marean(Partner, DLA Piper);  Wayne Matus(Partner, Pillsbury);  Karla Wehbe (Senior Information Resource Manager, Risk Management, Bechtel Corporation); and George Tziahanas (Vice President of Compliance, Autonomy). 

What is cloud computing?

When the Internet started it was Web 1.0.   Then the web evolved into what we have today, an interactive platform that is Web 2.0.  You can take information and put it up, or host it,  in the cloud.   “The Cloud” is a euphemism for the Internet.  The Cloud (and the irony is not lost on us) is ethereal and means different things to different people so the panel described in brief the National Institute of Standards and Technology (NIST) definition (click here for more on NIST).  That full technical definition from NIST is as follows and provides the framework for your further understanding of cloud computing:

Definition of Cloud Computing: 

Cloud computing is a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. This cloud model promotes availability and is composed of five essential characteristics, three service models, and four deployment models. 

Essential Characteristics:

On-demand self-service. A consumer can unilaterally provision computing capabilities, such as server time and network storage, as needed automatically without requiring human interaction with each service’s provider.

Broad network access. Capabilities are available over the network and accessed through standard mechanisms that promote use by heterogeneous thin or thick client platforms (e.g., mobile phones, laptops, and PDAs).

Resource pooling. The provider’s computing resources are pooled to serve multiple consumers using a multi-tenant model, with different physical and virtual resources dynamically assigned and reassigned according to consumer demand. There is a sense of location independence in that the customer generally has no control or knowledge over the exact location of the provided resources but may be able to specify location at a higher level of abstraction (e.g., country, state, or datacenter). Examples of resources include storage, processing, memory, network bandwidth, and virtual machines.

Rapid elasticity. Capabilities can be rapidly and elastically provisioned, in some cases automatically, to quickly scale out and rapidly released to quickly scale in. To the consumer, the capabilities available for provisioning often appear to be unlimited and can be purchased in any quantity at any time.

Measured Service. Cloud systems automatically control and optimize resource use by leveraging a metering capability at some level of abstraction appropriate to the type of service (e.g., storage, processing, bandwidth, and active user accounts). Resource usage can be monitored, controlled, and reported providing transparency for both the provider and consumer of the utilized service. 

Service Models:

Cloud Software as a Service (SaaS). The capability provided to the consumer is to use the provider’s applications running on a cloud infrastructure. The applications are accessible from various client devices through a thin client interface such as a web browser (e.g., web-based email). The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings.

Cloud Platform as a Service (PaaS). The capability provided to the consumer is to deploy onto the cloud infrastructure consumer-created or acquired applications created using programming languages and tools supported by the provider. The consumer does not manage or control the underlying cloud infrastructure including network, servers, operating systems, or storage, but has control over the deployed applications and possibly application hosting environment configurations.

Cloud Infrastructure as a Service (IaaS). The capability provided to the consumer is to provision processing, storage, networks, and other fundamental computing resources where the consumer is able to deploy and run arbitrary software, which can include operating systems and applications. The consumer does not manage or control the underlying cloud infrastructure but has control over operating systems, storage, deployed applications, and possibly limited control of select networking components (e.g., host firewalls). 

Deployment Models:

Private cloud. The cloud infrastructure is operated solely for an organization. It may be managed by the organization or a third party and may exist on premise or off premise.

Community cloud. The cloud infrastructure is shared by several organizations and supports a specific community that has shared concerns (e.g., mission, security requirements, policy, and compliance considerations). It may be managed by the organizations or a third party and may exist on premise or off premise.

Public cloud. The cloud infrastructure is made available to the general public or a large industry group and is owned by an organization selling cloud services.

Hybrid cloud. The cloud infrastructure is a composition of two or more clouds (private, community, or public) that remain unique entities but are bound together by standardized or proprietary technology that enables data and application portability (e.g., cloud bursting for load-balancing between clouds).

Overall advantages and issues

The panel delved into the advantages of the cloud, as well as some of the issues: 

Advantages:

Shared resources, information, hardware, software and other resources can be delivered more rapidly and searched.  The cloud is not just for outsourcing, large corporations use the cloud for their data centers combining their local LANs with the cloud to increase capacity, in other words, a hybrid cloud.  This should lead to lower costs for data storage, searching and retrieval.

Issues with the Cloud:

There have also emerged critical yet not fully unexplored issues such as: (1) Preservation, retention and disposal of the data;   (2) Control and Access; (3) Collections and Holds (how do you instigate a litigation hold?  What about metadata?); and (4) Privacy — the use of the data, the location of the data both lead to privacy concerns. 

In evaluating a service agreement for hosting in the cloud,  Wayne Matus offered up some things to include in the terms of service: Use of data, Location of data , Encryption , No change of terms , Destruction, Ownership (assignment), Subpoena , Audit rights.   

On the downside of cloud computing:  security issues.  Wayne Matus mentioned he is involved with a case where there are weekly security breaches and this is “not the best of all possible worlds”.   He also said “There’s someone really smart sitting in Kazakhstan figuring out how to break through it.”  Private clouds were mentioned as one possible solution to the security issue. 

And control, possession and location in the cloud are issues to be looked at as well.  Cloud computing promises a huge liberation of human creativity and communication; but can this precious space for our collaboration be kept open and free?   Cloud computing is bringing with it “cloud capitalism”.  Companies will make money from organising these clouds for us. Apple already is, with its iTunes cloud of music and its cloud of thousands of third-party apps to run on the iPhone. Cloud computing will also bring a kind of cloud culture: increasingly, we will express ourselves through these clouds of films, videos, pictures, books, stories and music. 

Should Lawyers use the Cloud?

Browning Marean said that the genie is out of the bottle.  This is a disruptive technology in that pre-cloud law firms knew where there data was, but now in the cloud — where is your data? A litigation hold is the biggest challenge in the cloud.  Also, in the “pre-cloud” world you knew where (physically) your data was located.  You knew which jurisdiction you were in.  Now, where is the data?   It is important because privacy laws in the US  vs. the EU are different and we have recently seen in several court cases how problematic it becomes.

The Cloud cannot be used as a shield, the data must be accessible.  See Phillip M. Adams & Associates, L.L.C.,  v. Dell, Inc. 2009 WL 910801 (D.Utah March 30, 2009)  (click here).   But just because your client’s data is in the cloud does not mean you don’t have to produce it.  See FRCP 34(a) ii and FRCP 26(a)1(a)(ii).  It appears that when people have to make the decision about retention they go overbroad, creating more ESI, which leads to more e-discovery.  (Which leads to the search for more vendors with culling, filtering, ECA, “predictive coding” capabilities)

An important cloud computing case mentioned by the panel:

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008 Access here and commentary here  FRCP 34(a) required production of data in the cloud from text messages sent or received by employees of the City using text messaging devices supplied by SkyTel (for the case click here). 

And also what is being commonly referred to as “Zubulake 6″ or the very recent Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC,et al., 05 Civ. 9016 (SAS) (S.D.N.Y. Jan. 15, 2010), (click here) although this case seemed to be mentioned in all the sessions.  Members of the panel opined that the case may very well require litigation holds too early and lead to higher costs of litigation.

The Galleon hedge fund case  was mentioned as well which involved insider trading and wiped out a $6 billion dollar fund in a few hours after an indictment was announced.   Audio, texts, email, docs, trade records — all in the cloud and all part of the ediscovery requested by regulators — touched many outside regulated industries and included such giants as IBM, AMP and others. 

Side Bar

Jason R. Baron gave an interesting historical note oon the Oliver North/Iran-Contra episode.  It occurred when government policy was to not use email for official purposes.  He contrasted that later with the Obama administration, which has emphasized transparency and reversed the government agency trend to the point now where the default is for the government is to store more records in the cloud.  Then he gave the “Field of Dreams” scenario:  ”If the CIO builds it, the lawyers will come,” which corroborated what Deborah Baron said earlier, that the legal system is catching up to the increases in technology.

Social Media

Social networking/social media (SM) was discussed as well.   It was mentioned that FINRA Regulatory Notice 10-06 recognizes social networking and provides for extended bookkeeping requirements if social media is used for business purposes (note: this is for financial industries, which are heavily regulated).  It was mentioned that SM is an emerging technology and that companies need a SM policy, and they need to enforce it.  Each company is different and has its own culture and should have it’s own unique policy and address what SM is being used for.   Browning Marean said “50 year-olds shouldn’t be setting the policies for the 20 and 30-year-olds of the organization” (although if you work for a start-up that usually is what happens) while earlier Jason R Baron quipped that he made a deal with his daughter that as long as she doesn’t de-friend him on Facebook he won’t de-ATM card her.   Do these two statements attest to the generational gap that exists today in SM use?

For the Powerpoint from the presentation which shows all the subjects discussed click here.

Postscript:

It was a good session, with lots of information.  As cloud computing comes of age, our links to one another will be increasingly routed through a vast shared “cloud” of data and software. These clouds, supported by huge server farms all over the world, will allow us to access data from many devices, not just computers; to use programs only when we need them and to share expensive resources such as servers more efficiently. Instead of linking to one another through a dumb, decentralised network, we will all be linking to and through shared clouds.

The session could not accommodate all issues.  For instance, whose clouds will these be?  Cloud capitalism and cloud culture will not always be in harmony. The best way to understand the coming conflicts over the cloud is to look at the issues already being raised by some of the earliest applications. China, where Google is belatedly standing up for the principles of a cloud free from government interference, is the most immediate example.

But Google also has a more pragmatic, commercial motive. Gmail is a cloud service. Users do not store their messages on their own computers but in a remote cloud run by Google. (The Guardian newspaper recently junked its own, costly email service in favour of Google’s enterprise-level Gmail offering.) If Google cannot maintain the integrity of the Gmail cloud, it does not have a secure service to sell. There will be many battles of this kind in years to come where corporations, citizens and governments struggle for control of the cloud.

An equally significant battle involving Google’s influence over the cloud is being played out in a nondescript courtroom in New York, where the company has been defending its plans, devised with several university libraries, to create a cloud of more than 10m digital books. The question is: on what terms will Google make these available to readers and recompense their authors and publishers?

This shared cultural cloud will come at a price that is difficult to calculate. Google will acquire considerable power over the future of publishing and books – which books to include in the cloud and which not.

This dispute is a template for many others to come. Governments will also have their own views about these clouds, seeing in them threats to national culture (the French response); threats to security (the Chinese response) or threats to competition (the response of the US department of justice).

Thus, just as it is emerging, open cloud culture is threatened on all sides by vested interests of traditional media companies, hungry new monopolists and governments that are intent of reasserting control over the unruly web.

All of this deserves a more detailed examination and it will form the base for the cloud computing vBook The Posse List is writing in collaboration with several e-discovery vendors, law firms and IT experts.  It will be made available for free via our collateral site The Electronic Discovery Reading Room.  Look for our announcement in the coming weeks.  If you’d like information about contributing or being a sponsor, email us at manager@theposselist.com

Reporter:  Gregory Bufithis

Jason R. Baron and Ralph Losey finally made their Broadway premiere with “E-discovery: Did You Know”, a multimedia presentation we have seen several times in beta.  To get a feel for the futuristic presentation Baron choose Darude’s Sandstorm for the soundtrack.  For background on how the presentation came about click here. 

In a nutshell, ediscovery is expanding exponentially.   How much.  Well, just look at the presentation by clicking here.

The presentation was played before a mock debate between Baron and Losey, the Hon. Paul W. Grimm (Chief Magistrate Judge, U.S. District Court for the District of Maryland) and Jeane A. Thomas (partner, Chair of E-Discovery Information Management Group, Crowell & Moring) acting as in-house corporate counsel.

What they did was to recreate a scenario by which you went inside the boardroom to hear e-discovery search experts Baron & Losey participate in an “in-house” debate with their hypothetical client, taking opposing points of view on the subject of how the client should go about conducting a reasonable search for ESI in response to a massive discovery demand. Some of the hot topics included: How best to conduct keyword searching against a huge data set, and what possible alternatives exist for the client to contemplate paying for? How much information should lawyers and clients really share in conducting search negotiations during “meet and confers” with opposing parties. What does The Sedona Conference Cooperation Proclamation call for in this area? And what about the “bad” document that may or may not come up while conducting your keyword search?  The session was a lively interplay on possible strategies and tactics, and included a perspective from the bench on how the issues might play out in court.

It is difficult to capture the debate because it was fast and furious.  And, quite frankly, Judge Grimm was the star.  He is a rare combination of legal scholar and instinctual litigator.   He has taken the bar to task for not understanding or following either the letter or spirit of the disclosure rules.   He has taken a very aggressive/active role in judicial control and supervision of e-discovery and disclosure.

Ralph provided us the Powerpoint used for the debate and you’ll get a flavor of the issues/topics covered.  You can access it by clicking here.

Jason R. Baron and Ralph Losey do not need any introduction for those of us in the e-discovery “trade” but for our new readers a quick summary: 

Jason has served since 2000 as Director of Litigation for the National Archives and Records Administration, and is an internationally recognized speaker and author on the preservation of electronic records. He was recently named Co-Chair of The Sedona Conference® Working Group on Electronic Document Retention and Production, and has previously served as Editor-in-Chief of The Sedona Conference Best Practices Commentary On The Use Of Search And Information Retrieval Methods In E-Discovery and Co-Editor-in-Chief of The Sedona Conference Commentary On Achieving Quality In The E-Discovery Process.   He is a founding co-coordinator of the TREC Legal Track, a multi-year research project evaluating search technologies used in e-discovery.  Jason has been a trial lawyer and senior counsel with the Department of Justice, a Visiting Scholar at the University of British Columbia, and is currently an Adjunct Professor at the University of Maryland’s Graduate College of Information Studies.  He also presently serves on the advisory board for the Georgetown Law Center’s Advanced E-Discovery Institute and is a faculty member of Georgetown’s E-Discovery Training Academy.    

Ralph C. Losey is an attorney, educator, and author who practices law as a shareholder of Akerman Senterfitt, an AmLaw 200 law firm with offices in Florida, New York City, Washington D.C., Los Angeles, Dallas, and Denver. Ralph is also an Adjunct Professor of Law teaching electronic discovery and advanced e-discovery courses at the University of Florida College of Law. Ralph has been practicing law since 1980 in commercial litigation where he has over 70 published opinions to his credit. Since 2006 Ralph has limited his practice to electronic discovery and IT law related issues and started Akerman’s e-Discovery and IT Law practice group. Ralph is currently the most prolific author of e-discovery in the country, having written three books and three law review articles in the last three years. His books include the American Bar Association’s two best selling books on electronic discovery: Introduction to e-Discovery: (2009); and, e-Discovery: Current Trends and Cases (2008). His latest book on e-discovery will be published by West Thomson in 2010 and is entitled: Electronic Discovery: New Ideas, Trends, Case Law, and Practices. Finally, Ralph is also the principle author and publisher of a popular weekly Internet blog on e-discovery, e-Discovery Team Blog, which now averages over 400,000 visits per year. For Ralph’s full detailed resume please see: RalphLosey.com.

Jason and Ralph have been creating a  movie entitled “e-Discovery: Did You Know?” which will be premiered in it’s final form next weeks at LegalTech New York.  We have seen several ”beta” versions and discussed it before (click here).   It always seems to blow away the crowd.  The guts of the presentation in a nutshell:  e-discovery is expanding exponentially and Ralph and Jason speak in petabytes, and exabytes — not terabytes.

I caught up with Jason and Ralph several times in the last few months and I asked them to put  this “tsunami of e-data” in perspective. 

TPL:    How did the idea of the presentation come to you? 

RL:      This was Jason’s idea, but he had no trouble talking me into it. He needed a technical person proficient at presentations and special effects to implement his idea, and he thought I filled the bill. When I understood what he had in mind, I thought I could probably do it. Besides, we had been looking for an opportunity to do a creative project together where we can both tap into our mutual sense of humor and do something really creative. It proved to be great fun, even all of the research we both had to do on the facts. Although I must add that the technical aspects of putting it together in movie form proved to be much more difficult that I had anticipated. I had to use both KeyNote and Final Cut software, and also ended up buying a new Mac so the final editing would go better. (It doesn’t take much for me to be persuaded that I need a new, better computer!) But still, I ended up figuring out all the technical problems and we both reasonably satisfied with the results. It is also gratifying to see the tremendous response this little six minute video has generated in its two beta trial runs. It is even better now, and we look forward to its “premiere” at Legal Tech NY on February 3, 2010.    Jason and I will play the video before we begin our presentation Let’s Have A Debate: The Hottest Behind the Scenes Topics in Search and Retrieval Today. Hopefully many of your readers will be able to join us. It starts at 12:15.    After that we will put it up on our web sites for the world to see (and would hope that someone will place it on YouTube). 

JRB:   I first saw the presentation “Did You Know” a couple years ago at a KM Conference in Sydney Australia, where I had been invited to speak.   At the time, I was completely taken in by the mesmerizing facts the little movie presented.  Sometime later,  after speaking and writing a bit more on the subject of information inflation and problems lawyers encounter in search and retrieval, I thought doing a more focused movie on amazing e-discovery facts would be a way to really wake up an audience.    I also knew that I needed help if the movie were ever going to get made.   Having gotten to know Ralph first through his wonderfully creative blog, and then increasingly at conferences together and in guest teaching his course at U. Florida’s law school,  I just knew Ralph was the perfect person to collaborate with.  I also knew I could get him to do most of the work in actually putting this together, once I came up with a good idea and once I supplied him with a few amazing facts.  Ralph likes a challenge, and voila, we now have a movie! 

TPL:    We don’t want to steal your thunder from LegalTech in a few weeks but can you quote us some of the numbers from your presentation? 

RL: Well, one of my favorites is that far more information is stored in computers that has ever been spoken by humankind. 

JRB:   Back in the dark ages – the year 2002 —  I only had to deal with searching through 32 million White House emails from the Clinton Administration in response to discovery requests in the US v. Philip Morris litigation.  Come 2017, that number is expected to grow to 1 billion emails from all prior Administrations.  Whomever is the Director of Litigation at NARA as of that time (and I can assure you it won’t be me), will have that much larger set of issues to deal with, in responding not only to e-discovery, but also to future FOIA requests and other forms of government investigations and inquiries.   

TPL:    These numbers are astounding.  You have any more scary numbers to share? 

RL:      Yes. Many, many more. But as my friends in the military like to say, if I told you I’d have to kill you. 

JRB:    Ralph did a great job of pulling together some astounding information about Google searches and what are staggering amounts of information in various social media.   

TPL:    You chose Darude’s Sandstorm as the musical background.  Is there a “backstory” to that choice? 

RL:      Jason’s choice, but I love it.  Well, I used to love it, but after hearing it 100 times to do the editing, my love for the song faded and my resistance to trance music has increased dramatically. I now seem virtually immune to hypnotism. 

JRB:    After we previewed the movie at the Georgetown conference, one person came up to me convinced that I must secretly hang out in dance clubs.  (I don’t.) Truth be told, I had never listened to “trance” music before – as my musical tastes and expertise stopped around 1975, circa Dylan’s “Blood on the Tracks.”   But I started with the music for the original “Did You Know,” by Fat Boy Slim, and using a combination of the Pandora music genome project  for songs with similar attributes, and cross-checking those with genres of music on You Tube, I narrowed down what had been “hit” trance, techno and house music songs over the past 10 years, and made my recommendation to Ralph.  (Apparently the song has also recently been a hit at certain college football games – go figure.) 

TPL:    Ralph, in a recent post you said “before today’s digital deluge, the last major litigation transformation was the introduction of discovery itself in 1938. Before the 1938 amendments to the Federal Rules of Civil Procedure, “discovery” required special bills, writs, and pleadings”.  Can you give us some more background on the transformation of litigation over the years and how it has morphed into this tsunami of data? 

RL:      Actually, I was not around in 1938, but do have personal experience from the late 1970s forward. Discovery used to be a minor part of a case and most cases were tried before a judge or jury. Now discovery is king and only 2% of the federal cases go to trial. That is a huge change.  Further, requests for production of documents used to be simple work. Any good second year associate could do it. Now, it is very complicated and requires special training to do right.  

Also, I remember the good old days when we wrote on dead trees, called paper. Writings on paper would not throw themselves away, move positions in a filing system, or store records inside themselves (metadata) as to who last read them, changed them, and the like. Now we’ve got ESI that throws itself away and self-replicates. Now, thanks to computers, we also have Billions and Billons more writings than before. For more on that, see our Did You Know e-discovery movie. Because of these many changes in technology preservation has become a huge issue and concern about spoliation and sanctions is present in most large cases.  

In the 1980 and 1990s, up til near the end of the century, spoliation was not a significant part of litigation. Now it can be a game-changer and the first thing we have to do in most every case is send out preservation notices. That never used to be part of litigation practice and for some attorneys still isn’t. When they read Judge Scheindlin’s new opinion, Pension Committee, which I blogged about recently, they are going to be very upset. For this new opinion makes clear that the failure to send out written preservation notices is gross negligence. 

TPL:    Jason, in an article you co-authored titled “Information inflation: Can the legal system adapt?”, you stated “information is fundamental to the legal system. Accordingly, lawyers must understand that information, as a cultural and technological edifice, has profoundly and irrevocably changed. There has been a civilization wide morph, or pulse, or one might say that information has evolved”.   What is that morph/pulse? 

JRB:   Actually, those words were originally penned by my friend and co-author George L. Paul, a partner at Lewis & Roca in Phoenix, who is also the author of a pathbreaking book entitled “Foundations of Digital Evidence” (with a forward by Judge Facciola).  The concept of an information “pulse” is one that Ralph has touched on above, and that all lawyers of a certain age are (or should be) hyper-aware of, namely, the exponential increase in the volume of potentially relevant evidence, data, information and records that we are all experiencing and must cope with in litigation.   This is largely due to the information being created and received on the highly networked, interconnected world we live in.  Our wired world is something that seems taken for granted by my high school daughter (who is online virtually every waking minute of the day), but is really something very new.    But recall that the Web went from 20 host servers in 1992 to 100,000 in January 1996 – after the introduction of the Netscape browser in August 1995.  Now that’s a pulse!   At the end of my the information inflation article, I quote from the late astronomer John Archibald Wheeler, who said that tomorrow we will learn to express all of physics in the language of information.  Although e-discovery requests haven’t reached the far edges of our galaxy or of the known universe (yet),  information overload and information overabundance on Earth is, I’m afraid, going to be the continued defining characteristic of our age – for lawyers and for everyone, for as far as our crystal ball can see. 

TPL:    At numerous presentations you have both stated that understanding how information is processed throughout its lifecycle is essential.  It’s a process.  And that means change, especially as it relates to electronically stored information.  How does a general counsel start to address these issues? 

RL:      They should start to address these issues by forming an interdisciplinary e-Discovery Team. That is the critical first step and thus is the name of my blog –e-discoveryteam.com. This new Team needs to be properly staffed, funded and coached.  Otherwise it will probably sputter out and fail, or at least, not fulfill its full potential. Once the team is set up, one of the first tasks of the team should be to overhaul the company’s information management systems for ESI, including preservation hold procedures. Then the team should move onto ESI collection procedures when faced with litigation. Of course, to collect, you have to know where it is, and so the map and information management are critical threshold steps.           

JRB:   I can only “second” what Ralph says here.  As a career civil servant, I believe there is a real need for General Counsels or their equivalents in government to empower a select few attorneys across each component of a legal office, to work with CIOs, records officers, and heads of key business units, so as to jointly collaborate on such matters as retention policies, preservation and legal hold policies, IT procurement choices that have litigation consequences, and the like.  The problem is that even in 2010, most organizations lack a person or persons who wish to serve as mediator and translator of the various languages and disciplines involved (i.e., to serve as a Rosetta Stone, translating between communities who approach aspects of information asset management in  very different ways.)   I do have one overarching recommendation to General Counsels, however: find the youngest, just hired lawyer, to lead the effort – she or he should have no conscious awareness of the Apollo space program and men walking on the Moon (if they do, they really are too old to make much headway!)  

TPL:    How can technology help? 

RL:      You have to fight fire with fire. The problems of             too much information, ESI  complexity, dispersion, and chaos are all caused by technology. Inventions got us into this problem and so inventions will have to get us out of it too. Software and hardware are part of that, but only part. We also have to invent new methods which use the software and hardware as tools. We have to use these tools in a smart way. New software systems alone with a new legal gestalt will not work.  

JRB:    Ralph is absolutely right.  In the near term future (ten+ years from now), scientists hopefully will have developed sufficiently robust content analytics and other means of artificial intelligence so as to make us comfortable in automating much of present-day discovery, from preservation to collection to search and privilege review.  There will always be a human element to lawyering, of course,  but we have to move on beyond “everyone being their own recordkeeper” and “searcher” to more automated and sophisticated ways to tackle the growing problem of ESI volume. 

TPL:    Ok, a difficult question.  We have seen how the judges have taken more control of the discovery process, or at least we have heard judges and pundits saying they should.  Do you think the situation is now so overwhelming (data overload) we will see the rules changed this year as a result of the Duke Universirty conference this spring? 

RL:      I doubt it. The rules are not the problem, nor the solution. Education of the bench and Bar are the solution. From that you can infer what the real problem is. 

JRB:    I am not a fan of major rules changes so soon after the 2006 Rules amendments, although we can always do a better job wordsmithing.    I do believe that The Sedona Coference’s Cooperation Proclamation, if rigorously adopted by courts and complied with by litigants, would go a long way towards narrowing problems caused by data overload.  I’m honored to say that I have been invited to take part on one of the Duke conference panel,s and plan on talking about automation and technological solutions to rising e-discovery costs.  I‘m looking forward to the opportunuity to interact with like-minded colleagues on the bench and bar while there. 

TPL:    Jason, Ralph – many thanks for your time.  We’ll see you at LegalTech for the final version of e-Discovery: Did you Know?

RL:      Hope to see you and your readers there. I see your blog, The Posse List, pop up on my iPhone each day, and encourage you to keep up the good work!

JRB:    Thanks Gregory.  I have become a big fan of The Posse List and urge readers of this column to check out the excellent reporting from past conferences. 

Note to readers:  we’ll have a video interview with Jason and Ralph next week from LegalTech New York 2010.  And for those of you attending LegalTech here is where they are presenting:

Monday, February 1, 2010 starting at 3:30pm   Ralph will be on a panel entitled Ask The E-Discovery Doctors and he will be joined by Craig Ball (attorney and president, Craig D. Ball, P.C.), George Socha (attorney and president, Socha Consulting, LLC) and Dean Gonsowski (VP of E-Discovery Services at Clearwell Systems)

Tuesday, February 2, 2010 starting at 12:45pm   Jason will participate in a panel entitled Taking eDiscovery and Compliance to the Cloud.   The panel will be moderated by Deborah Baron (Vice President, Legal & Compliance, Autonomy, Inc.).  Other panelists will include Browning E. Marean (partner, DLA Piper), Wayne Matus (partner, Pillsbury Winthrop), Karla Wehbe (Senior Information Resource Manager, Risk Management, Bechtel) and Brian Weiss (VP eDiscovery & Information Governance, Autonomy) 

Wednesday, February 3, 2010 starting at 12:15pm    Jason and Ralph will be playing the video e-Discovery: Did You Know before they begin their presentation Let’s Have A Debate: The Hottest Behind the Scenes Topics in Search and Retrieval Today.  Also on the panel will be the Hon. Paul W. Grimm and Jeane A. Thomas, a partner in the Antitrust Group of Crowell & Moring and Chair of the firm’s E-Discovery and Information Management Group and a partner in Crowell & Moring’s Antitrust Group.

Reported by:  Gregory P. Bufithis, Chairman/Founder  The Posse List

In the latter part of the last decade — ok, the fall of 2009 — we completed what we call the trifecta:  full coverage of three of the premier electronically stored information (ESI) and e-discovery events for the litigation industry:  The Masters Conference (click here), the ACC Annual Meeting (click here), and the Georgetown Law Advanced E-Discovery Institute (click here).

As expressed at all of these events we are in “the perfect storm”: ever increasing data volumes; more litigation and government inquiries, and skyrocketing e-discovery costs. 

And if we learned only one thing about the explosion of ESI and corporate data it was this: Craig Ball, Jason R. Baron and Ralph Losey can scare the bejesus out of you.  These guys think in terms of exabytes … and beyond.  Although Jason and Ralph try to make it more palatable by doing it to the tune of Darude’s Sandstorm (click here).   And Craig Ball did assuage our concerns (a bit) by telling us that while we live in an infinite universe it is all manageable.

At all of these ESI events it was stressed — stress being the operative word — that in-house legal departments have been forced to cut their budgets just like their “sisters”, the law firms but with a greatly increased workload.  And the end of 2009 and the beginning of this year saw survey after survey tell us/show us that ESI and e-discovery requests would simply skyrocket.  As one of many examples, see the Enterprise Strategy Group study (click here).

So companies are looking to innovate their way out of the recession, strategically cutting costs, bringing services and processes in-house to gain more control, and doing more than just “quickly brandishing an umbrella looking for a place to seek shelter” quoting the  Enterprise Strategy study.

But as one memorable GC told us at the ACC Annual Meeting in Boston last year “the reality is we need to get control of our ESI — our data data data which seems to be everywhere!! — at the very beginning of our process.  Not just at litigation time”. 

A nightmare.  Or two … or three …. for general counsels everywhere.

And while it is impossible for a general counsel to isolate the effects of software from all the other efforts presumably made to rein in outside counsel and other spends, corporate law departments can control spending via technology.  And there are vendors and technology galore as ESI management, e-discovery, governance, compliance and risk are all melding into one pot.  And those great folks at Gartner have provided us with a nice summary of the e-discovery vendor landscape as we begin 2010 (click here).

So as LegalTech New York comes quickly upon us (click here) we are launching a new series whereby we will post detailed interviews we conducted over the last several months with the thought leaders in ESI management and e-discovery, with links to articles, blog posts and websites, focusing on ESI management and e-discovery for the corporate law department, and the law firm. The series will run up to and through LegalTech, and beyond. We have some 30+ interviews in the queue which will include:  Dean Larry Center, Bob Eisenberg and Nicole Steckman of Georgetown Law CLE; Tess Blair of Morgan Lewis; Jim Moore of Merrill Corporation; Ron Friedmann of Integreon; Deborah Baron of Autonomy; Tim Williams of Index Engines; Steve d’Alencon of CaseCentral; Nigel Murray of Trilantic; Virginia Henschel and Rob Robinson of Applied Discovery; Mary Mack of Fios; Adam Cohen of FTI Technology; Chris Dale of the eDisclosure Project, plus many, many more.

Our intent is to provide a background in finding potential cures for the ESI/data management nightmare as seen through the eyes of the major players in ESI management and e-discovery:  what technology is out there, who is out there, how do you sort through all the technology, procedures, best practices, etc.  Most of these folks will be presenting and/or exhibiting at LegalTech in a few weeks so we’ll also tell you where you can find them at the show. 

And a bit later in this series we will have interviews with Jason R. Baron, Ralph Losey and Craig Ball who will put all this tsunami of “data! data! data!” in perspective for us.

But we start off this series with some interviews with some extraordinary companies that have recently come onto the ESI/e-discovery scene.  First up:  an interview with Andy Wilson, co-founder of Logik.  For our full interview with Andy click here.

For all interviews and posts in this series click here. 

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.

10 November 2009

Reporting for the Posse List: Scott Madsen

In what portended to be a great day-long seminar on ediscovery search, the opening multimedia presentation by Ralph Losey and Jason R. Baron set the bar high.   This was the “beta version” of a presentation that Losey and Baron will give at LegalTech in New York City this coming February.   It was worth the trip to Tyson’s Corner.

To get a feel for the futuristic presentation Losey choose Darude’s Sandstorm to get his presentation “moving” and used Da Vinci as an inspiration for his template. 

In a nutshell, ediscovery is expanding exponentially.  Losey envisions a future with AI “agents” that can search in real time on the galactic wide web with 98% accuracy, leaving the lawyers to deal with the law.  He also envisions computers that become so smart they create computers that we can’t understand.  Cyberdyne systems anyone?

Losey makes the case that we should be able to quickly find relevant data at reasonable prices.  Keyword searching has proven to narrow the massive quantities of ediscovery but is not perfect, and far from it in many instances.  Losey opines that in many instances lawyers are simply guessing at keywords although collaborative efforts with the litigants (both internal and external) will greatly assist the fluidity and effectiveness of discovery.  Later Losey referred to the Sedona Co-operation Proclamation as one of the best ways to reverse the legal culture of adversarial discovery that is driving up costs and delaying justice.  It will also facilitate proportionality and cooperation in discovery.  But as Losey said “Newton told us that no great discovery was made without a bold guess and it seems like we are waiting for such a bold guess that will assist in the morass that is ediscovery today”.

And Losey repeated his mantra:  how much truth can you afford?  Is a question litigants have to ask themselves in today’s environment as 98% of cases are settled and 60% of the litigation costs are for the processing and review of the data.

The legal profession needs to learn from the mistakes of its past.  It needs to use search pre-processing, and avoid “self-collection” and seek expert help as needed.   And not be adversarial (see above).  Losey says that attorneys that are overly adversarial on ediscovery are usually lacking knowledge in this area and are afraid to give something away.  He also says that attorneys need to “document their processes” and be transparent to the other side … and the judge … and most importantly go to the court early with ediscovery issues which will save you headaches in the end.

All of this, says Losey, is why e-discovery today is like playing the card game Go Fish, an issue he covered brilliantly in a recent post on his blog (click here).  Unless opposing counsel asks specifically in their request for production for a responsive document they are not going to get it.  Too much secrecy and guessing is involved.   The negotiated key word search model prevalent in e-discovery today uses the same guessing game model as Go Fish. The party requesting ESI guesses what key words might produce evidence to support their case. Do you have any emails that use the keyword “King.” It is necessarily a guess as to what keywords to use because the requesting party cannot see the responding party’s cards. Only the responding party sees all of their own cards, and that is as it should be.

The responding party has a right to privacy. They should not be required to give the requesting party the keys to the server room, the whole deck of cards. The requesting party is either suing the responding party, or being sued by the responding party. Either way, the requesting party should not be permitted to enter and search every nook and cranny of their adversary’s inner sanctum. They should not be granted unfettered access to run ever-more-sophisticated search tools to look for something, anything, that might be incriminating. That kind of fishing expedition has long been prohibited by most courts in the United States.

Under a new cooperative based, producer-search-driven discovery (as prposed by Losey and the Sedona Conference)  the trials themselves would also become simpler and more streamlined. If lawyers did not play the old games of truth manipulation, and just let the chips fall where they may, many unnecessary side issues would fade away before trial. When bad facts come out early, pseudo-issues go away early too. This inevitably results in fewer issues remaining for trial. Thus if discovery was changed as here recommended, the cost of trials could also be reduced.

The new goal here proposed for discovery is to find and place all of the important cards on the table as quickly and efficiently as possible. This requires cooperation and transparency on both sides. It requires the requesting party to explain what cards they want and why. It also requires them to make precise and narrow requests directed to specific, important issues in the case.

And this new game also requires cooperation and transparency by the responding party, and requires their initiative and leadership. The responding party can no longer just sit back and watch poor guesses being made. They must take the lead in getting the truth out. This is a burden, but the responding party is more than compensated for this burden by the protection this provides from over-broad, expensive, inefficient search. It also protects the responding party from having to show their whole deck of cards, their entire ESI collection. The protection of privacy rights is an important factor to many.

The party responding to requests for production must be proactive. They must design the search.  As Losey discussed, this only makes sense because it is their data. They have unfettered access to it. They know the language. They know the people involved. For these reasons, the responding party is always in the best position to search the data and, if asked, to fully explain how and why the search met the needs of the requesting party. The process must be transparent. It must also be performed competently. This may sometimes require the employment of experts and search design specialists.

So, says Losey, we need to move to a Where’s Waldo game wherein the requesting party specifically asks for what they want, the responder designs the search using its knowledge of its own data, systems and personnel.   This new game is not a competitive game where one side wins and another loses. Either they both find Waldo or they both lose. The win-lose part of the process comes next. It comes after discovery when the case is decided by summary judgment or tried before a judge and jury. That is the way it should be. Neither discovery nor mediation are adequate substitutes for adjudication.  The new game of discovery here proposed implements strategic cooperation.

Losey and Baron finished with a review of the important processes in ediscovery: culling, then filtering, then sampling, then stages.  Sampling is your friend.  Proportionality and estimates get a feel for what it costs and a projection from a sample can estimate the total cost of the project.

The end result of winning at co-operative ediscovery is that you have time and money left to fight the case on its merits.  You could say that Losey follows the win-win strategy and is of the opinion that ediscovery is not a zero sum game, but that it should be the precursor to the real battle on the merits of the case.