e-discovery 2.0

In a time before e-discovery, I toiled away alongside a partner at Chapin, Fleming and Winet – Larry Shea. While not reducing his legal sagacity to one pithy catch phrase, his “no ask-y, no get-y” line is nevertheless a truism I often ponder.⁽ⁱ⁾

As a green associate, fresh out of law school, I had a number of idealistic (read: naïve) assumptions about how litigators wrangled over discovery disputes. One day, while dealing with a particularly thorny electronic discovery problem, I came to Larry and told him what I thought we wanted and why we needed it in a specific format. I knew that the opposition wasn’t likely to grant our e-discovery request, partially because they’d surely intuit how badly we needed it. Larry simply responded with his truism and explained that if we didn’t express our wishes we’d (a) likely not get what we wanted and (b) would not have established our position if push came to shove with the judge.

Well, I just read a recent case (Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 902957 (N.D. Ill. Apr. 2, 2008)) and it showed me that no matter how evolved the legal discovery process has become, the basic “no ask-y, no get-y” notion still applies.

In Autotech, the issue surrounded the production of electronically stored information (ESI) per Fed.R.Civ.P. 34(b)(2)(E) which basically says that court documents must be produced as they are kept in the “usual course of business” or in a “reasonably usable form.” Significantly, section (iii) also states that a party need not produce the same ESI in more than one form.

Unfortunately, the requesting party (ADC) didn’t specify a form for the production of the document at issue, so “Autotech had the option of producing it in the form in which it was ordinarily maintained, or in a reasonably usable form.” Similarly, ADC did not specify that it wanted metadata as a part of the responsive document production. The court was not sympathetic to ADC’s requests: “It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format.” The court ultimately found that “ADC was the master of its production requests; it must be satisfied with what it asked for.”

In other words, “no ask-y, no get-y.”

Yes, this all seems so simple, but parties still are routinely stepping in this same pothole. Useful e-discovery best practices to avoid this predicament follow along these lines:

1. Determine what format of ESI production you’re going to require. This sometimes isn’t as easy as it sounds since there are a number of permutations of review environments, even for common platforms such as Concordance [s1]and Summation Work backwards with the attorney review team and their litigation support personnel to figure out what you’ll need and the type of “load files” that are required.
2. Determine if you’ll likely want metadata. In lieu of any specific guidance, it’s fair to assume you’ll want metadata for spreadsheets (to calculate formulas), in cases involving computer forensics and for matters involving granular document authenticity/chain of custody, to name a popular few. The challenge is that you may not know about some of these issues at the time of the early Meet and Confer conferences. This is particularly important since there is a “modest legal presumption in most cases that the producing party need not take special efforts to preserve or produce metadata.” Williams, 230 F.R.D. at 651 (quoting The Sedona Principles, Comment 12a). So, the opposition may be on pretty solid footing if they claim that they had no duty to keep the metadata if you don’t make your needs known early on.
3. Ask for what you want. Here, you’ll want to get specific, especially if you’re wisely carving out certain data types for different handling. Documenting your requests is a good practice too.
4. Prepare to substantiate your needs for #1 & #2. Courts aren’t very willing to entertain overly broad requests for metadata if there isn’t a showing of need. So, be prepared to be challenged and have a solid rationale for the e-discovery request.

⁽ⁱ⁾ His saying, “if ‘its’ and ‘buts’ were candy and nuts it would be Christmas all year long” is another great pearl, but I couldn’t find a good case law tie-in.

Jeff Spicoli, after crashing a car in Fast Times at Ridgemont High, quipped:

“It’s okay. My dad is a TV repairman. He has the ultimate set of tools. I can fix it.”

Clearly, Spicoli’s tools (no matter how “ultimate”) weren’t going to get the car repaired. Never mind the fact that he was probably under the influence and shouldn’t have been operating anything more than a Barcalounger. His quote did get me thinking about a post I read recently that probably would have advised Spicoli against talking about how good his tools were. The post in question trumpeted the value proposition of early case assessments in E-Discovery (a viewpoint I wholly endorse). And yet, during the blog the author posited an interesting viewpoint that I think needs a bit of deconstruction:

“In legal, the less information your opponent has, the better off you are. … Using commodity based early case assessment tools may introduce legal risk your company may not want to manage. For example, if the opposing counsel has foreknowledge of the products you use, such as Autonomy/Aungate, Attenex or Clearwell Systems, they know your capability to identify concepts, custodians, etc. Using software to create legal leverage without sharing to the world how you do it, can improve your competitive advantage in the early phases of litigation.”

As a former practicing litigator, I’ll be the first to admit that I’ve seen my share of scorched earth discovery tactics. And, I’m not so much of a Pollyanna to think that a certain amount of this zero sum mentality doesn’t still exist. And yet, there’s an emerging trend (some might say a nascent best practice) to increase the amount of transparency and collaboration in the E-Discovery world.

I was at the Sedona Conference’s recent “Program on Getting Ahead of the eDiscovery Curve” where one of the hot topics was how the fledgling amendments to the FRCP were playing out in practice. One key discussion area centered around how the new Rules required a much more collaborative meet and confer process:

“Rule 26(f) is about cooperation and working together. By coming together early, defining what is important and what is not, and working with your adversary, not against them, means less risk, less cost and more certainty.” [Emphasis Added]. A Practitioner’s Guide to Rule 26(f) Meet & Confer: A Year After the Amendments. John Rosenthal, Howrey LLP and Moze Cowper, Amgen Inc.

Similarly, recent case law has also championed this collaborative approach:

“Identifying relevant records and working out technical methods for their production is a cooperative undertaking, not part of the adversarial give and take. … It is not appropriate to seek an advantage in the litigation by failing to cooperate in the identification of basic evidence.” In re Seroquel Prods. Liab. Litig., 2007 WL 2412946 (M.D. Fla. Aug. 21, 2007)

As part of this proposed transparency and collaboration, the authors (above) point out that a number of topics should proactively be discussed during the meet and confer session(s) including preservation, date ranges, custodians, systems, categories or types of ESI, and the use of search terms. In my experience this level of discussion and transparency really does pay dividends. Anything that resembles a “hide the ball” approach will ultimately take up needless attorney cycles, and will in turn drive up the cost of resolving the matter.

Now, I will concede that a party shouldn’t take the transparency notion too far. For example, it’s probably not necessary to immediately discuss the brand(s) of tools that are working behind the scenes to deliver the promised results. And yet, disclosing the type of functionality that will be brought to bear on the E-Discovery process can help:

• Facilitate discussions about ESI “inaccessibility” - see FRCP 26(b)(2)(B)
• Dispel the frequent myth that one party has the type of uber tool that can instantly, cheaply and automatically grab every piece of relevant data from the most remote corners of an enterprise
• Set the stage for limitations in the E-Discovery process so that all parties (including the Court) can have their expectations firmly grounded in reality
• Eliminate “black box” technology concerns by showing the opposition how your tools work to process files, handle metadata, etc.

So, back to the Spicoli reference,… having a killer set of tools may help your enterprise (or client) achieve fast, accurate and predictable results. But, does the opponent’s knowledge of the type of tools and features you’re going to use increase your risk profile?

While there aren’t any absolutes, I’d certainly say “no.” And, even if this type of gamesmanship did yield a temporary advantage, it’s probably outweighed by a collaborative E-Discovery approach that is quickly becoming a best practice.

If we could only get the E-Discovery tools to fix Spicoli’s car…

Two announcements from Google caught my eye on Tuesday: one that would make investigators’ life more difficult, and another that would make it easier. Since the first is more humorous, it appears to have got more attention; but it’s the second that’s much more significant.

In his post introducing Google Message Discovery, Bill Kee explains that it’s a hosted email archiving service that captures every message, enforces retention policies, and (no surprise!) provides comprehensive search functionality. It comes included in Google Apps Premier Edition, and its cost starts at $25 per mailbox per year.

This is an interesting move when viewed in a broader context. In the enterprise market, Google Apps is seeking to do to Microsoft Office/Exchange what salesforce.com did to Siebel – i.e., provide 80% of the functionality at 20% of the cost. The beach-head for Google into the enterprise is Gmail: if enterprises adopt that as their email platform, then adoption of other Google applications will quickly follow. But enterprises are reluctant to embrace Gmail until it provides enterprise class security, anti-spam, anti-virus, etc. What Google is saying with Message Discovery is that “must-have” list of functionality also includes email archiving.

My view is that the list of functionality that enterprises expect from their email systems also includes e-discovery. It’s great to have keyword search on an archive, but that only gets you a first cut of the data that’s potentially responsive to a case. If your only choice is to then send all of that to a service provider for processing, then you will likely give up the cost savings that prompted you to adopt Gmail in the first place. Conversely, if you can de-duplicate, filter, analyze, and review the information to cull it down to only the small set of relevant data prior to exporting it out of Gmail, then you build on the cost and functionality advantages that Gmail has over its competitors.

My guess is that the clever folks at Google already know this. After all, why else would they call their new email archive “Google Message Discovery” as opposed to “Google Message Archiving”?

Regular readers of E-Discovery 2.0 will notice a new look to the blog today (thanks Sean!). But that’s not the biggest change. As we enter the blog’s second year, I have decided to take your feedback to heart and invite 3 exceptional people to join me as regular bloggers.

In the 12½ months since I wrote my first post, it has been exciting to see the blog’s readership grow rapidly (see charts for trends in page views and email subscribers). I would like to profoundly thank everyone who has either read this blog, linked to it, submitted comments, or even just come up to me at various parties and events to say that you have been reading it. Without your input, I would have nothing to write. It is tremendous fun to interact with a community of people who share my interests, and I’m grateful to you all for engaging.

As part of my ongoing dialogue with readers, I consistently got 2 requests: can you post more often, and cover a broader set of e-discovery issues? True, over the past year, I have covered the big deals that mattered, the small ones that didn’t and the ones in between; I wrote about analyst rankings of different e-discovery vendors, prompting a lively discussion involving the analysts themselves; I highlighted shifts in the landscape, such as enterprises bringing e-discovery in-house, partnerships with archive vendors, and the changing role of service providers. I even had a little fun, every now and then.

But there’s no denying that e-discovery presents far too rich a set of legal, business, and technology issues than I can cover alone – especially given the demands of my day job. That’s why I decided that the best way to develop the blog as a resource for the e-discovery community is to have more people writing, especially if those people are both more intelligent than me and have their own perspectives on e-discovery.

So it is with great pleasure that I welcome three new bloggers to E-Discovery 2.0:

• Dean Gonsowski is a lawyer who has spent the past 10 years advising corporations and law firms on how to improve their e-discovery processes. He teaches a series of continuing legal education courses on e-discovery, and is a member of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1).
• Kurt Leafstrand is a rocket-scientist from MIT (I’m not kidding!) who is now very active in EDRM, and was a key contributor towards the recently published XML standards. He spends his days designing e-discovery solutions and has posted before on several topics.
• Will Uppington is also active in EDRM and Sedona. His particular passion is developing new search, analysis and web 2.0 technologies and applying these to reducing the costs and risks associated with e-discovery. He has also posted before.

I am thrilled to be joined by such a bright bunch, and hope you enjoy the new “e-discovery team” approach!