e-discovery 2.0

If you have been following my previous posts regarding possible amendments to the Federal Rules of Civil Procedure (Rules), then you know I promised a special interview with former United States Magistrate Judge Ron Hedges.  The timing of the discussion is perfect considering that a “mini-conference” is being hosted by a Federal Rules Discovery Subcommittee today (September 9th) in Dallas, TX.  The debate will focus on whether or not the Rules should be amended to address evidence preservation and sanctions.  I am attending the mini-conference and will summarize my observations as part of my next post.  In the meantime, please enjoy reading the dialogue below for a glimpse into Judge Hedges’ perspective regarding possible Rule amendments.

Nelson: You were recently quoted in a Law Technology News (LTN) article written by Evan Koblentz as saying, “I don’t see a need to amend the rules” because these rules haven’t been around long enough to see what happens.  Isn’t almost five years long enough?

Judge Hedges: No.  For the simple reason that both attorneys and judges continue to need education on the 2006 amendments and, more particularly, they need to understand the technologies that create and store electronic information.  The amendments establish a framework within which attorneys and judges make daily decisions on discovery.  I have not seen any objective evidence that the framework is somehow failing and needs further amendment.

Nelson: You also said the “big problem” is that people don’t talk enough.  What did you mean?  Hasn’t the Sedona Cooperation Proclamation made a difference?

Judge Hedges: The centerpiece of the 2006 amendments (at least in my view) is Rule 26(f).  I think it is fair to say that the legal community’s response to 26(f) has been, to say the least, varied. Civil actions with large volumes of ESI that may be discoverable under Rule 26(b)(1) cry out for extensive 26(f) meet-and-confer discussions that may take a number of meetings and require the presence of party representatives from, for example, IT.  There is an element of trust required between adversary counsel (with the concurrence of the parties they represent) that may be difficult to establish – but some cooperation is necessary to make 26(f) work.  Overlay that reality with our adversary system and the duty of attorneys to zealously advocate on behalf of their clients and you can understand why cooperation isn’t always a top priority for some attorneys.

However, “transparency” in discussing ESI is essential, along with advocacy and the need to maintain appropriate confidentiality. That’s where the Sedona Conference Proclamation can make a big difference. Has the Proclamation done that? It’s too early to reach a conclusion on that question, but the Proclamation is often cited and, as education progresses in eDiscovery, I am confident that the Proclamation will be recognized as a means to realize the just, speedy, and inexpensive resolution of litigation, as articulated under Rule 1.

Nelson: You also mentioned that the Federal Rules Advisory Committee might be running afoul of the Rules Enabling Act.  Can you explain?

Judge Hedges: There is a distinction between “procedural” and “substantive” rules.  The Rules Enabling Act governs the adoption of the former.  Rule 502 of the Federal Rules of Evidence is an example of a substantive rule that was proposed by the Judicial Conference.  However, since Rule 502 is a rule dealing with substantive privilege and waiver issues, it had to be enacted into law through an Act of Congress.  I am concerned that proposals to further amend the Federal Rules of Civil Procedure may cross the line from procedural to substantive.  I am not prepared to suggest at this time, however, that anything I have seen has crossed the line.  Stay tuned.

Nelson: If you had to select one of the three options currently being considered (see page 264), which option would you select and why?

Judge Hedges: To start, I would not choose option 1, which presumes that the Rules can reach pre-litigation conduct consistent with the Rules Enabling Act.  My concern here is also that, in the area of electronic information, a too-specific rule risks “overnight” obsolescence, just as the Electronic Communications Privacy Act, enacted in 1986, is considered by a number of commentators to be, at best, obsolescent.  Note also that I did not use the word “stored” when I mentioned electronic information, as courts have already required that so-called ephemeral information be preserved.  Nor would I choose option 2.  Absent seeing more than the brief description of the category on page 264, it seems to me that option 2 is likely to do nothing more than be a restatement of the existing law on when the duty to preserve is “triggered.”

So, by default, I am forced to choose option 3.  I presume a rule would say something like, “sanctions may not be imposed on a party for loss of ESI (or “EI”) if that party acted reasonably in making preservation decisions.”  There are a number of problems here. First, in a jurisdiction which allows the imposition of at least some sanction for negligence, all the rule would likely do is be interpreted to foreclose “serious” sanctions. Isn’t that correct? Or is the rule intended to supersede existing variances in the law of sanctions?  At that point, does the rule become “substantive”?   Second, how will “reasonableness” be defined?  Reasonableness supposes the existence of a duty – in this case, a duty to preserve.  For example, is there a duty to preserve ephemeral data that a party knows is relevant?  We come back full circle to where we began.

Remember, Rule 37(f) (now 37(e)) was intended to provide some level of protection against the imposition of sanctions, just as the categories are intended to.  Right?  And five years later 37(e) remains defined variously to be a “safe harbor” or a “lighthouse” by some lawyers such as Jonathan Redgrave or an “uncharted minefield” by others like me.

Nelson: What about heightened pleading standards after the Iqbal and Twombly decisions?  Do these decisions have any relevance to electronic discovery and the topic at hand?

Judge Hedges: Let me begin by saying that I am no fan of Twombly or Iqbal. The decisions, however well intended, have led to undue cost and delay all too often.  Not only is motion to dismiss practice costly for parties, but it imposes great burdens on the United States Courts and, as often as not, leads to at least one other round of motion practice as plaintiffs are given leave to re-plead.  All the while, parties have preservation obligations to fulfill and, in the hope of saving expense, discovery is often stayed until a motion is “finally” decided.  I would like to see objective evidence of the delay and cost of this motion practice (and I expect that the Administrative Office of the United States has statistical evidence already).  I would also like to see objective evidence from defendants distinguishing between the cost of motion practice and later discovery costs.

Putting all that aside, and if I had to accept one option, I would choose to allow some discovery that is integrated to the motion practice.  First, even without the filing of a responsive pleading, there should be a 26(f) meet-and-confer to discuss, if nothing else, the nature and scope of preservation and the possibility of securing a Rule 502(d) order. Second, while I have serious concerns about “pre-answer discovery” for a number of reasons, I would have the parties make 26(a)(1) disclosures while a motion to dismiss is pending or leave to re-plead has been granted in order to address the likely “asymmetry of information” between a plaintiff and a moving defendant.  Once the disclosures are made, I would allow the plaintiff to secure some information identified in the disclosures to allow re-pleading and perhaps obviate the need for continued motion practice.

All of this would, of course, require active judicial management.  And one would hope that Congress, which seems so interested in conserving resources, would recognize the vital role of the United States Courts in securing justice for everyone and give adequate funding to the Courts.

A famous quote from intellectual George Santayana provides an appropriate backdrop for organizations to better understand why they should deploy technology to strengthen their litigation response effort.  As Santayana explained in The Life of Reason: Reason in Common Sense, “[t]hose who cannot remember the past are condemned to repeat it.”

The “past” can be a powerful playbook in the game of eDiscovery.  Fortunately for organizations, the lessons of eDiscovery history abound.  Indeed, the decisions that courts issue every day across the United States and in other countries provide substantial guidance on what organizations should and should not do to properly prepare for the discovery phase of litigation.

One of the principal lessons that can be gleaned from American court cases in 2011 is that technology can help organizations address the demands of eDiscovery in litigation.  Technology has assumed such a significant role because it facilitates the oversight process that lawyers must engage in to ensure that pertinent documents are preserved for discovery.  This year alone, the failure to exercise that oversight has in many instances culminated in evidence destruction and sanctions.

That message was emphasized this summer by a Virginia based federal court in a hotly contested trade secret dispute.  In E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. July 21, 2011), the court determined that it would issue an adverse inference jury instruction against defendant Kolon Industries as a sanction for its evidence spoliation.  The spoliation at issue occurred when Kolon deleted emails and other records relevant to DuPont’s trade secret claims.  After being apprised of the lawsuit and then receiving multiple litigation hold notices, several Kolon executives and employees met together and identified emails and other documents that should be deleted.  The ensuing destruction was staggering.  Nearly 18,000 files and emails were deleted.  Furthermore, many of these materials went right to the heart of DuPont’s claim that key aspects of its Kevlar© formula were allegedly misappropriated to improve Kolon’s competing product line.

Surprisingly, however, the court did not finger the Kolon employees as the principal culprits for spoliation.  Instead, the court laid the blame on Kolon’s attorneys and executives, reasoning they could have prevented the destruction of information through better oversight.  The hold process was particularly flawed.  The notices were either too limited in their distribution, ineffective since they were prepared in English for Korean-speaking employees, or too late to prevent or otherwise alleviate the spoliation.  Given the logistical challenges of implementing a hold in this instance, perhaps only the automated functions of technology such as archiving software might have strengthened the oversight process and obviated the spoliation that took place.

The lack of attorney oversight also factored into another pertinent sanctions order this year, this time from a federal court in Chicago.  In Northington v. H & M International (N.D.Ill. Jan. 12, 2011), the court issued an adverse inference jury instruction against a company that destroyed relevant emails and other data.  The spoliation occurred in large part because the company neglected to establish a global litigation response effort.  For example, there was no process for issuing or ensuring compliance with a litigation hold.  Nor was counsel engaged in the critical steps of preservation, identification or collection of electronically stored information (ESI).  Into this vacuum stepped rank and file employees – some of whom were accused by the plaintiff of harassment – who were tasked with identifying and collecting discoverable emails from their workstations.  Predictably, key documents were never found and the court had little choice but to promise to inform the jury that the company destroyed evidence.

The problems associated with the lack of oversight in DuPont and Northington are compelling reasons why organizations should consider using technology tools as part of their overall litigation response strategy.  One of the most helpful tools in this regard is archiving software.  Indeed, having the right archiving solution in place might have preserved the spoliated records in these actions.

For example, archiving software can be programmed to prevent employees from deleting emails and other electronically stored information.  By ingesting data into a central repository and leaving copies of the materials on local computers, employees could have access to their archived records.  They would not, however, be able to delete those documents from the software archive.  In addition, a litigation hold could have been placed on archived data to prevent automated retention rules from overwriting information.  Either of these features might have prevented much of the spoliation – and the resulting sanctions – that occurred in both the DuPont and Northington cases.

The automated functions of archiving technology can benefit a company’s litigation response in other ways.  For example, such a tool may limit the amount of potentially relevant information available for follow-on litigation.  Absent a legal hold, retention rules that are programmed into the software will ensure that ESI is expired once it reaches the end of a designated period.  In DuPont, such a feature could arguably have eliminated entire categories of older documents before a duty to preserve those materials ever ripened.  This facet not only has the potential to reduce legal exposure, but also the attendant costs associated with reviewing those documents in litigation.

DuPont, Northington and other cases from the recent past delineate the steps companies can take to address the challenges of eDiscovery.  Organizations do not have to “repeat” past mistakes that victimized clients and counsel alike.  Instead, they can implement the right technology tools as part of a thoughtful, proactive approach to litigation.  By so doing, organizations will avoid Santayana’s judgment by “remembering” the lessons of eDiscovery history.

In my last post I announced that discussions are taking place that could change the way preservation and sanctions issues are handled within the federal court system.  The next round of discussions about possible amendments to the Federal Rules of Civil Procedure (FRCP) is scheduled to take place on September 9th in Dallas, Texas as part of a “mini-conference” led by the Discovery Subcommittee – a committee appointed by the Advisory Committee on Civil Rules.  This post discusses three different rule amendment approaches that attendees have been asked to consider in order to help them prepare for the mini-conference.  A complete list of attendees, preparation materials, and questions the group will consider are included in the Advisory Committee’s June 29, 2011 memorandum to the participants.

The debate about whether or not rule amendments are even required is far from over.  A 452-page document located on the U.S. Courts’ website chronicles many of the meetings, notes, and submissions driving the current discussion.  Page 265 of the document contains a memorandum prepared by the Civil Rules Advisory Committee earlier this year, stating that:

“the Subcommittee has reached no conclusion on whether rule amendments would be a productive way of dealing with preservation/sanctions concerns, much less what amendment proposals would be useful.”

Despite concerns that amending the current rules now would amount to jumping the gun, there is an undeniable desire for more clarity around when the duty to preserve electronically stored information (ESI) is triggered, what must be preserved, and when the duty expires.  This momentum has resulted in the crafting of draft proposals that are likely to help frame the discussion on September 9th. The “proposals” are really draft approaches that have been broken down into three general categories described in the Civil Rules Advisory Committee’s memorandum, titled: “PRESERVATION/SANCTIONS ISSUES” (see page 263).  The Category 1 approach can best be described as providing a higher degree of specificity than the other approaches.  For example, the Category 1 approach provides a fairly detailed explanation of the duty to preserve evidence (Rule 26.1(a)) and details possible triggers (26.1(b)), the scope of the duty to preserve (26.1(c)), and sanctions (Rule 37).  Category 2 proposes a more general preservation rule, while Category 3 only addresses sanctions as a tool for influencing behavior.  The three categories are discussed in more detail below.

Category 1: Specific Rule

This draft includes many different exemplary lists, alternative approaches, and footnotes that highlight the fact that one of the key challenges with drafting a specific rule is trying to foresee all of the challenges that might lie in the road ahead.  For example, the draft rule provides a long list of events that could trigger the duty to preserve evidence, including everything from serving a pleading to taking “any other action” in anticipation of litigation.   The rule also provides a list of information types that are “presumptively excluded” from the preservation duty, such as deleted data on hard drives, temporary internet files, and physically damaged media.

The lists are helpful in that they provide guidance.  However, each list also includes a “catch-all” provision to address scenarios that might not be foreseeable.  The inclusion of catch-all provisions highlights the inherent challenge of providing more clarity and certainty without creating rules that are so inflexible that they are difficult to apply to unforeseen factual scenarios or technological developments.  Some might argue that trying to provide a laundry list of examples will make passage of new rules difficult because each item on the list will stir debate.  Others contend that the lists add little value because the catch-all provisions will still require litigators to pass the sniff test of “reasonableness.”

Despite the inherent challenges related to drafting rules with specificity, most practitioners would likely support the inclusion of lists or examples that provide at least some direction.  What is likely to be far more controversial with respect to Category 1 is the use of alternative language proposing fixed limits around custodians and litigation holds.  For example, one alternative would limit data preservation requirements to a fixed number of custodians and the duty to preserve evidence would similarly expire after a fixed number of years.  Bright line rules like these may be easier to understand, but they also tend to be controversial since they lack the flexibility necessary to fairly address every conceivable situation.

Category 2: General Rule

Like the Category 1 proposal, the Category 2 proposal uses lists and outlines several alternative approaches throughout the rule.  However, the Category 2 proposal fundamentally differs from Category 1 by outlining a more general approach.  For example, one of the alternatives essentially states that the duty to preserve evidence is triggered whenever a “reasonable person” would expect to be a party to an action.  Similarly, the ongoing duty to preserve information after the duty has been triggered would be evaluated based on what is described as a “reasonable period” under the circumstances.

The beauty of this more general approach lies in its simplicity and flexibility.  The idea is that evaluating conduct based on the “reasonableness” of a person’s actions is much easier than attempting to draft bright line legal guidelines that account for every possible factual scenario.  The flip side is that reasonable minds could differ and results could be inconsistent if there are no bright line rules.  What this means in the context of the federal rule discussion is that one judge might find a party’s conduct with respect to data preservation efforts reasonable, while another judge might issue sanctions based on the same set of facts.  In large part, it is this lack of certainty and guidance in the current rules that sparked the current debate in the first place.

Category 3: Sanctions-Based Rule

Unlike the first two categories, the Category 3 approach focuses only on sanctions and would act like more of a “back-end” rule.  In other words, the rule would not contain any specific directives about preservation, but it would provide direction in the areas of when and how sanctions might be applied.

Despite the draconian image a “sanctions” based rule might conjure up, the Category 3 rule may seem surprisingly lenient to some.  For example, absent extraordinary circumstances, the court would be prohibited from imposing any of the sanctions listed in Rule 37(b)(2) or from giving an adverse-inference instruction unless:

“the party’s failure to preserve discoverable information was willful or in bad faith and caused [substantial] prejudice in the litigation.”

The sanctions based approach would almost certainly have an impact on how parties handle upstream preservation related issues.  However, the key ingredients that will impact what kind of behavior this rule drives are the severity of the threatened sanction as well as the applicable standard.  For example, a party facing severe sanctions for conduct that is either negligent, willful or in bad faith is likely to take their preservation obligations seriously.  On the other hand, if the realm of possible sanctions is trivial, parties are less likely to take their preservation related obligations seriously.

Conclusion

The three rule approaches represent very early attempts at framing possible approaches to amending the FRCP.  If the Discovery Subcommittee chooses to recommend rule amendments following the September 9th mini-conference in Dallas, the proposed language is likely to be closer to final form and easier to assess than the current proposals.  I will continue to monitor the rule making discussion and provide commentary in future posts.  Stay tuned for my next post where former US Magistrate Judge Ron Hedges explains why he thinks the rule changes are unnecessary and why the current proposals might run afoul of the Rules Enabling Act.

eDiscovery best practices, particularly practical ones, are hard to come by.  That’s why the Pilot Program of the 7th Circuit has been such a novel (and successful) undertaking.  As part of this program, judges, outside counsel and industry experts collaborated to practically deal with the many vexing eDiscovery challenges in the courtroom. By way of background, the 7th Circuit Electronic Discovery Pilot Program Committee was formed in May 2009 and was chartered to conduct a multi-year, multi-phase project to develop, implement, evaluate, and improve pretrial litigation procedures, which ideally would provide fairness and justice to all parties, while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure (FRCP).

The Committee, comprised of the most talented experts in the 7th Circuit, as well as experts in relevant fields of technology, promulgated “Principles Relating to the Discovery of Electronically Stored Information” (“Principles”) and a Proposed Standing Order by which participating judges could implement the Principles in the Pilot Program’s test cases.  Practicing lawyers wrote the Principles under the guidance of federal judges in Chicago, with the end result being a consensus from experts in the field of eDiscovery rather than a prescriptive approach dictated by the courts.  The Committee now has 80 members, including members from all 7 federal districts in the 7th Circuit and around the country, and is chaired by Chief Judge Holderman and Magistrate Judge Nolan of the Northern District of Illinois. The Principles provide a checklist of important considerations for the initial meet and confer conference, as well as even-handed rules regarding preserving and producing electronically stored information (ESI) that provide more granularity to the Federal Rules of Civil Procedure.

The 7th Circuit has been well-received, and evangelists are jumping on board in other Circuits, including the 9th Circuit.  Art Gollwitzer, a member of the 7th Circuit eDiscovery Pilot Program Committee, practices patent law, was key in the formation of the Principles notably the Preservation Principle 2.04, and now heads the National Outreach Committee for the 7th Circuit Program.  In a recent case, Joao Control & Monitoring Systems of California, LLC v. ACTI Corp., et al., Case No. SA CV10-1909-DOC, in the Central District of California, Art was pleasantly surprised to see language that he helped write in a draft ESI order handed out by the court to the parties for their consideration at the initial status conference.  “I was very happy to see the exact language that our committee drafted after many hours of discussion in the summer of 2009 in the court’s proposed order,” Art explained.  “We worked hard to reduce the cost and burden of electronic discovery and to prevent ESI discovery from turning into a game of ‘gotcha’.”

The goal of the National Outreach Committee is to spread the word about the 7th Circuit’s ESI Program and its benefits.  “We envision spreading the word through articles, speeches, and ‘grass-roots’ or word-of-mouth efforts,” says Gollwitzer. To that end, liaisons in each Circuit or even each district can talk to judges and encourage colleagues to propose that courts adopt the Committee’s principles in Rule 26(f) orders on a case-by-case basis.  “We also can describe the program and its principles at local bar associations and Inns of Court,” he explains.  “Finally, we can volunteer for local rules committees or comment on ESI proposals for local rules.”

With each jurisdiction having its own local rules and each legal community having its own flavor, the exercise of bringing all stakeholders into the process to contribute to the Principles is unprecedented.  Whether each Circuit starts their own Pilot Programs, or initially adopts the 7th Circuit’s Principles and then modifies as necessary, remains to be seen.  Either way, results from the 7th Circuit have been positive thus far, generating supporters nationally.  The hope is that courts and practitioners will start with these Principles in order to avoid a patchwork of ESI rules across the country.

The general consensus of the participating judges in Phase I of the Pilot Program was that the Principles were having a positive effect both on counsel’s cooperation with opposing counsel, and on counsel’s knowledge of procedures to be followed when addressing electronic discovery issues. The judges felt that the involvement of eDiscovery liaisons required by Principle 2.02 contributed to a more efficient and cost effective discovery process. Many of the participating lawyers reported little impact on their cases, presumably mostly because of the limited 6-month duration of Phase I. Those lawyers who did see an effect from the application of the Principles in their cases overwhelmingly reported that the effect was positive in terms of promoting fairness, fostering more amicable dispute resolution, and facilitating their advocacy on behalf of their clients. The Committee intends to present its Final Report on the 2-year Phase II evaluation at the 7th Circuit Bar Association Meeting in May 2012.

While most attorneys are following the guidance of Principle 2.01 (a) and (c), Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution, it is barely the majority.  And curiously, a significant minority of attorneys acknowledged they had not familiarized themselves with their client’s information systems or had early discussions with their opponents about ESI preservation issues even though they were applicable in the case.

What does this suggest? For one thing, the landscape is improving – but there is still a long way to go.  Why would even a single attorney with a case in the Pilot Program ignore relevant ESI issues? One of the major problems with the vagueness of the Federal Rules was a lack of clear-cut guidance. Now, even though there is a Standing Order in the case providing guidance and Principle 2.01 (d) outlining sanctions that could be imposed for failure to comply, some lawyers still do not.

Every Circuit should be forming a Committee and bringing practitioners, judges and experts together to weigh in on these important ESI issues.  Fortunately, there is a successful model available with hard data.  The 7th Circuit’s Principles and Standing Order are a good place to start.

(Editor’s note: This special guest post was written by Chitrang Shah, Clearwell Principal Product Manager. He is an RIT alum and avid hiker who works with our engineering team and lead customers to optimize the product for large-scale review. – Kurt)

As we’ve previously shared, our product strategy throughout 2009 and 2010 was to expand the product footprint across the EDRM as customers were demanding a single, end-to-end eDiscovery product. During this period we successfully expanded from our roots in processing, search and analysis to review and production (August 2009), identification and collection (September 2010) and legal hold workflow (March 2011). Over the last several months, our focus has been to go deep in each of these modules and provide features that deliver even greater return on investment to our customers.

Today, I am excited to announce significant new features and feature enhancements to the Clearwell Review and Production Module and say a few words about what motivated us to build these features and how they enable our customers to further streamline their legal review workflow.

There are several exciting features in this release, but I would to like to highlight three in particular:

1. Ability to seamlessly import production load files

Most matters require reviewing relevant documents alongside the documents received from third parties, opposing parties, and even previous litigations. With the new load file import feature, users can now streamline the process of importing load files with three simple steps.

In Step 1, a step-by-step wizard-like interface guides users though the selection of formatting information such as field delimiters and nested value delimiters, metadata information such as bates numbers, family relationships, tags, folders and any number of custom attributes, and content information such as images, extracted text and native files. When the load file has both extracted texts and native files, the wizard gives users an option to specify which content should be used for searching.

In Step 2, the system performs a deep validation of the load file and generates a report documenting any inconsistencies such as missing bates numbers or missing values for required fields found in the load file. As a result, customers have the ability to quickly find and fix any issues with the load file before the import begins.

In Step 3, the system imports the documents and builds analytics. Once this step completes, the imported documents, including all metadata and content, are available for viewing and searching.

All the analytics capabilities customers are familiar with, such as discussion threads and concept search, are also available for documents imported from load files. This allows users to quickly discover documents in the load file that are conceptually similar to natively processed documents, for example.

2. Support for large scale reviews and productions

As the volume of electronically stored information (ESI) continues to grow, our customers find themselves reviewing and exporting more and more documents, and they need a solution that can cope with the massive growth in data. At the same time, they don’t want to spend large sums of money building a server farm in anticipation of the growth. They want the flexibility to add capacity when needed and remove it when not needed.

Clearwell’s scale-out architecture enables administrators to easily add appliances and allocate them to a particular matter and to a specific task using a point-and-click interface.

For example, if an administrator needs to increase the number of reviewers from 200 to 400 in order to meet a tight deadline, he or she can easily add 2 appliances to the cluster and assign them for review. Once the review completes, the administrator can now easily re-assign these appliances for production, allowing users to easily meet deadlines while reducing their overall hardware costs.

This flexibility allows our customers to maximize the use of their hardware resources while providing infinite review, export and production scalability.

3. Streamlined management of exports and productions

Clearwell provides powerful export options, and while our customers use them extensively for creating a variety of different production formats, they typically standardize on a few. Clearwell’s new case export and production templates provide a quick and easy way for case administrators to define the export format once and use it across multiple cases. When exporting documents, users can simply select a template from the list of visible templates in that case. This capability significantly reduces the overhead associated with managing export formats and allows our customers to produce documents in a consistent format across multiple matters.

Additionally, new production pre-mediation reports automatically identify problem documents and group them by issue type for quick resolution. This enables users to preemptively identify and resolve document production issues without delaying entire productions.

Says Wendy Butler Curtis, chair of Orrick, Herrington & Sutcliffe’s eDiscovery Working Group, “Legal review is one of the most challenging phases of the eDiscovery process. As electronic data volumes continue to grow, it is increasingly important to leverage technologies that can streamline and improve legal review, ensure defensibility and reduce costs. Solutions like the Clearwell eDiscovery Platform enable legal teams to create an iterative eDiscovery workflow that allows for more efficient and effective large-scale review.”

We will be showcasing the new features at ILTA (Booth 816) this week in Nashville, so come see us and let us know what you think.

(Chitrang Shah is a Principal Product Manager at Clearwell Systems, now a part of Symantec, and the lead Product Manager for Clearwell’s Processing & Analysis and Review & Production Modules)

In past years we’ve covered Gibson Dunn’s Mid-Year E-Discovery Report which is always a good read, chock full of take-aways about the eDiscovery market.  In my mind, they do an excellent job of synthesizing the ever-expanding volume of case law and comparing those trends with historical averages.  This year’s report is no exception, and for those who don’t get to read all the cases, this is a stellar way to keep up on eDiscovery trends.  Without trying to summarize the entire 23 page document, there were a number of findings that stood out and should be perused by anyone with even a passing interest in the space.

Legal Holds/Preservation. As we all know, eDiscovery sanctions (at least here in the US) are critical business/legal drivers, particularly with regard to the legal hold area (which is the riskiest part of the EDRM).  As the Gibson report points out, the actual award of sanctions has remained relatively flat (56% in the first half of 2011 versus 55% for the full year in 2010) –  but, more important than this relatively stable metric, it’s very clear that the plaintiff’s bar has caught on to the ability to win cases by revealing shoddy (or just undocumented) legal hold procedures, even in some instances where data isn’t lost.  This is why the report notes a dramatic increase in the seeking of eDiscovery sanctions – 68 at mid-year 2011 versus 31 at mid-year 2010.  This doubling of attempts to pierce an entity’s legal hold regime should be a wake-up call to in-house practitioners and chief legal officers, since the attempt and success rates will likely only increase over time.

While there is still some considerable debate, at least for those following Judge Scheindlin’s Pension Committee logic, anything less than a formal, written legal hold policy is per se negligent.  Although it’s conceivable that  a reviewing court won’t use this rigorous standard, anything less formal will strike most organizations as simply too risky.  Ongoing compliance with the legal hold process is also another difficult task for many organizations, one which is considerably easier with an automated solution that is able to track acknowledgements and send reminders over time.  It’s all too easy for companies to think that once they’ve discharged their initial legal hold duty they’re in the clear – but as these obligations morph (with more custodians/data types) and elongate (from months to years) over time, keeping on top of the legal hold processes becomes that much more important.

Sanctions. The Gibson report also importantly points out that there’s currently a split in jurisdictions where some courts can levy sanctions for bad faith, while others can merely require proof of negligence.  Here, the important take-away is that a defendant entity doesn’t typically get to forum shop and therefore they can’t really tell which type of jurisdiction they’ll end up in as a litigant.  So, they need to build their eDiscovery processes to meet the high water (i.e., most rigorous) standard.  In most cases, it’s therefore prudent to be prepared to be sanctioned for merely negligent conduct – anything less can potentially be safe but that risk calculation needs to be considered carefully.

The other perilous part of the equation is that once sanctions are deemed warranted, the court has almost unlimited discretion to levy whatever blend of sanctions it thinks is appropriate.  In Green v. Blitz, for example, the court ordered a laundry list of sanctions, some of which were pretty unfathomable:

1. Defendant had to pay plaintiff $250,000

2. Defendant had to provide a copy of the court’s order to plaintiffs “in every lawsuit proceeding against it” for the past two years

3. Defendant had to file the court’s order in every case that it is involved in for the next 5 years

The bottom line is that sanctions, despite the fear factor, can be used to drive positive proactive conduct – namely in the shape of eDiscovery best practices.

Outside Counsel Duties. Here, the Gibson report notes that outside counsel’s Zubulake duties continue to increase over time, with a number of cases continuing the trend of holding attorneys responsible for ensuring that their clients properly implement legal holds, institute sound sampling protocols and conduct sufficient quality control steps.  This line of discussion can be useful when talking to outside counsel where we’re starting to see how their increasing responsibilities can lead to malpractice exposure, as seen in the recent McDermott case.

Search/Analysis. Lately there’s been a ton of buzz about predictive coding, but (despite the hype) it still doesn’t appear ready for prime time yet.  The Gibson report noted that there were no reported cases that addressed the use of predictive coding or other advanced search technologies.  My sense is that without some semblance of judicial approval or strong client backing, outside counsel (who are concerned about their malpractice exposure, per above) aren’t quickly going to be the first ones into the pool.  Unless an enterprise client demands that they use this type of technology, most will wait for judicial approval and that’s probably still a way off.  While next generation search technologies are more promise than reality right now, there is still a mandate to implement a defensible search methodology.  These are needed initially to demonstrate transparency in the eDiscovery process and to then withstand the challenges levied by counsel in the case of an inadvertent production.

In sum, the Gibson report shows the ongoing maturation of the eDiscovery space.  But, any niche market led by case law and/or attorneys deciding to adopt new technologies won’t be quick to change.  In many instances, therefore, the best practices will be decided a combination of standards bodies and vendors who are being pushed by their more forward thinking clients to get and stay on the cutting edge.

Today, I am delighted to report that Clearwell Systems has become part of Symantec. We have, of course, been working closely together since obtaining regulatory approval for the acquisition last month, but this makes it official: Symantec can now offer customers Clearwell’s market-leading eDiscovery platform as well as its market-leading Symantec Enterprise Vault archiving solution. We are excited to be part of the Symantec team, and to work alongside so many talented people to create the next generation of eDiscovery and information governance solutions.

There are already a large number of joint customers using the Clearwell and Symantec solutions as part of an integrated eDiscovery and archiving workflow, and we are well underway towards building more robust integration between Clearwell and Symantec Enterprise Vault. In updating our product roadmaps, all our decisions are guided by feedback from customers who have told us over and over again that they want to:

• Reduce costs across all phases represented in the Electronic Discovery Reference Model, from information management through review and production
• Reduce risk by improving the defensibility and repeatability of their archiving and eDiscovery processes
• Streamline their end to end archiving and eDiscovery lifecycle to meet legal and regulatory deadlines
• Start managing information and conducting eDiscovery in as little as one day; whether on-premise, as a hosted solution or in the cloud
• Meet their enterprise-wide archiving and eDiscovery needs, whether they have less than 25 to more than one million users

As we’ve discussed before, our plan as part of Symantec is to deliver a seamless, integrated archiving and eDiscovery management workflow that benefits all our customers. To keep everyone in the loop, we will continue to post updates and answer questions on the integrated product portfolio here and on the Symantec eDiscovery blog.

For more on the acquisition, and the response from our customers, partners and the industry at large, visit: http://www.symantec.com/clearwell.

Very soon, Clearwell Systems will become part of Symantec and cease to exist as an independent company. This will bring to a close 6 ½ wonderful years, during which Clearwell has grown from the two founders into a profitable, 240-person company. All told, our team has shipped 6 major versions of the Clearwell E-Discovery Platform, signed over 400 customers and 75 partners in 14 different countries, and become widely recognized as leaders in our industry. As a result, Clearwell’s valuation has increased from effectively zero to the $410 million which Symantec is paying our shareholders to acquire the company, making this by far the largest acquisition of an e-discovery software company to date.

For 6 of Clearwell’s 6 ½ years in existence, it has been my privilege to lead the company as its CEO. These have been, by far, the most rewarding, stressful, exhausting, and exhilarating years of my career. So in this, my final blog post, I would like to reflect on how we got here, and take this opportunity to thank some of the many people who made it possible.

***

In my view, there’s no single thing that makes a company successful. Rather, it’s a distinctive mixture of the right idea at the right time, executed the right way, by the right team, which gets the right lucky breaks and is propelled forward ahead of the competition by surging customer demand. That, in summary, is the story of Clearwell.

Right idea at the right time:

In the early days of a company’s life, when there’s no product and no hint of a customer, the only thing that you have is the idea. This is not the specific idea of what the company will do (that comes later); it’s the idea that there’s a huge change, a shift in the tectonic plates, that creates the opportunity to build a substantial new company. Much of this is about timing. Many changes are obvious over a 10-year timeframe, but it’s very hard to gauge which of them will occur in the 2-4 years that investors are willing to fund a startup venture.

The founding team at Clearwell was attracted by two big trends which combined to produce a profound change. One trend was that, by the mid-2000s, almost all communication within an organization had started to flow through email, as opposed to voicemail, memos, or hallway conversations. The other was that storage costs had fallen to the point where it was almost free to store all the email that people were generating. We realized that these two trends in combination had resulted in the creation of a user-generated written record of everything happening within an organization – something which had never existed before. Our hunch was that there had to be some way of unlocking value from this written record, while still respecting privacy.

Executed the right way:

We came to Clearwell with very specific ideas about how to build a world-class software company. These are too numerous and varied to capture here, but I will give you a few examples. In product development, we have always sought to build our enterprise products as if they were consumer products, so we made sure that they are intuitive and easy to use without any training. We designed them with the sales process in mind, by making them very easy to install and evaluate, so that prospects can try them out for free prior to purchase.  When it comes to marketing, we sought to promote a better way of doing e-discovery, rather than just pitch features, by championing the importance of early case assessments (ECA). With respect to pricing, we made the entry-point price as low as possible to encourage adoption, and pegged it to a metric that scales in line with value.  Strategically, we chose processing, analysis, and review as our entry point into the e-discovery market, because that’s where software provides the biggest, most immediate ROI.

In every area of the business, we brought a distinctive approach, all centered around our view of the ideal customer experience – the experience we would want to have, if we were our customers.

Right team:

The standard playbook for recruiting is to hire people who have done it before, ideally in the same domain. We took a different approach, and instead hired primarily based on personal qualities. Some of our team had no prior experience in enterprise software; many (including me) had never worked in e-discovery before coming to Clearwell. But we all share one thing in common: a relentless drive to win in the marketplace by building better products and providing better service than anyone else.

That hunger to win will trump experience every time. It’s the reason why engineers work through the weekend to resolve customer issues without being asked, or why a salesperson will travel 4 days out of every week to call on customers. It’s something that gets built into the company culture and then self-perpetuates. Our team tripled in size in the space of 18 months, and I never cease to be impressed by the fresh ideas and boundless energy coming from the new generations of “first-timers”.

Right lucky breaks:

Every successful company needs the rub of the green, and there have been many occasions when I’ve marveled at our good fortune. But perhaps our biggest break was that the Federal Rules of Civil Procedure (FRCP) changed for the first time in 38 years in December 2006, defining rules for the treatment of electronic information in the courts. This accelerated the movement from paper to electronically stored information and coincided perfectly with our entry into the market, drawing us into the electronic discovery domain.

Surging customer demand:

It’s an amazing feeling when you achieve “product/market fit”, as we did at the beginning of 2009. The user community among law firms and litigation support firms embraced our technology for ECA, taking our user base from hundreds to thousands. Enterprises woke up to the money that could be saved by bringing electronic discovery in-house, proactively issuing RFPs and creating new positions specifically responsible for e-discovery. Federal agencies began to adopt e-discovery solutions to sift through the vast quantities of data coming to them as part of their regulatory and investigative duties. Essentially, e-discovery became a core business process, just like finance, sales or HR – it became something that every organization had to do. And just as other departments use applications like salesforce.com (sales), Success Factors (HR), or NetSuite (finance) to manage those business processes, so it was that legal departments realized that they needed an application like Clearwell to manage the e-discovery process.

All of a sudden, the business accelerated, sales took off, and we felt ourselves being pulled in every direction at once. In response, we expanded our platform, moving from 1 product to an integrated platform of 4 products; and, we increased our geographic coverage by building out the sales team across North America and establishing beachheads in Europe and Asia. The Clearwell team worked around the clock to respond to customer demand, while at the same time recruiting and training as we added people at a furious pace. We learned that hyper-growth can be painful, but in a good way.

***

When things go well, the CEO often takes a disproportionate share of the credit. I must confess, it would be nice to think that the company’s success is due to some kind of brilliance or magic touch on my part, but the reality is quite different. This has been a team effort from beginning to end and there is a very long list of people who deserve recognition. It’s impossible to capture them all, but I’m going to do my best, by saying a heart-felt “thank you” to:

• Venkat Rangan and Charu Rudrakshi who started the company, raised the first round of funding, and set the DNA of the engineering team;
• Jim Goetz at Sequoia Capital who acted more as co-founder than investor in the company’s first year, and has since been incredibly supportive of the management team;
• Tom Dyal at Redpoint Ventures for his support and insightful advice on strategy; Bill Coughran at Google for helping us think through how best to scale engineering; John Dillon at EngineYard for teaching me what it means to sell software; and, Scott Dettmer at Gunderson Dettmer for his finesse and deft touch in managing the most delicate negotiations;
• Andy Byrne, Anup Singh, Kamal Shah, Ryan Snyder, Soumitro Tagore, Trevor Eddy, and Venkat Rangan for creating a truly outstanding management team built on trust and mutual understanding – it is quite remarkable that in 6 years, the company has only ever had 1 VP Business Development, 1 CFO, 1 VP Marketing, 1 VP Sales, and 1 CTO;
• Amar Laud, Amy Johnson, Andy Kashyap, Aruna Mantripragada, Bill Duffy, Brandon Cook, Cat Lee, Chitrang Shah, Cris Barrett, Dave Fraleigh, David Speicher, Dean Gonsowski, Donna Hui , Doug Kaminski, Ed Hinton, Jason Montgomery, Jason Reeve, Joe Schwartz, Krista Jones, Kurt Leafstrand, Malay Desai, Manish Sampat, Mark Wentworth, Mike Lee, Peter McLaughlin, Sangeeta Relan, Sean Wilcox, Steve Rapp, Subbu Gooty, Teddy Cha, Tom Kennedy, Tom Wells and Umair Hamid for being the leaders who have really defined the company, and without whom we would never have got anything done;
• Clearwell “Class of 2005” for their super-human efforts in shipping Version 1 and launching the company; Clearwell “Class of 2006, 2007 and 2008” for tirelessly iterating until we cracked the code for a profitable business model; and, Clearwell “Class of 2009, 2010, and 2011” for driving the huge expansion of our operations, both in the US and overseas;
• John Petruzzi from Constellation Energy, Joe Tawasha from Charles Schwab, Don McLaughlin from Qwest, Pallab Chakraborty at Oracle, Jesse Hartman at the Department of Health and Human Services, and Ron Best at MTO for being bleeding edge customers who took a chance on a fledgling technology;
• Jeff Fehrman from Onsite; Greg Mazares, Keith Lieberman and the infamous Taylor brothers at Encore; and Paul Tombleson at KPMG UK – for being the first service providers to embrace Clearwell’s technology;
• Debra Logan and John Bace at Gartner; Barry Murphy and Greg Buckles at eDiscovery Journal; Brian Babineau and Katey Wood at ESG; Brian Hill at Forrester; Chris Dale of the eDisclosure Information Project; George Socha and Tom Gelbmann; Nick Patience at 451Group; and Vivian Tero at IDC – for doing so much to help define e-discovery software as a space and make it intelligible to end-customers;
• Deepak Mohan and Brian Dye at Symantec for sponsoring an acquisition that will massively accelerate the adoption of Clearwell’s technology; and,
• Finally, Enrique Salem and the entire Symantec M&A and Integration Teams for giving us such a warm welcome into the Symantec family.

***

It has been a remarkable journey. I feel proud, and humbled, to have been a part of it.

Clearwell just announced major enhancements to our Identification and Collection Module that together usher in a new generation of targeted collection capabilities for e-discovery. Why are we excited about this? Because it promises to provide our customers with a dramatic increase in their ability to perform quick and efficient collections across the enterprise with a small fraction of the cost and effort traditionally required.

Before Clearwell, vendors could only rely on building their own indexes when attempting to collect content by keyword from unstructured document sources. They did this in one of two ways.

The first method was to build one-off indexes with each collection, indexing content and then discarding the index after collection is complete. This minimized the amount of infrastructure required to maintain the index, but was painfully slow and wasteful of computing and network resources. These sorts of solutions came from vendors who originally focused on the forensic investigation side of the world, whose tools had been designed around small-scale collection from individual devices and hard drives. Unfortunately, they simply don’t scale to meet the demands of today’s large enterprises with their ever-increasing data volumes.

The second method was to attempt to create an uber-index of all of the information in an enterprise and keep it continually updated so that it would be ready at a moment’s notice for your collection needs. This approach proved to be incredibly challenging to implement, required a huge amount of infrastructure to maintain, and, worst of all, didn’t really work: creating the uber-index, as it turns out, was uber-difficult.

In talking with hundreds of customers over the last couple of years, we realized that there was a better “third way,” which combined the lightweight nature of the first method with the comprehensiveness of the second. How? By leveraging the indexes that enterprises already have in place. From comprehensive, robust archiving solutions like Symantec Enterprise Vault to the fully-searchable indexes found on Microsoft SharePoint, Exchange, and file servers, the way of finding the information you need quickly for e-discovery is, by and large, already out there. It’s simply a matter of building an e-discovery platform sophisticated enough to leverage those indexes and, when necessary, be intelligent enough to build its own when not available from another source. That’s exactly what we’ve done with Clearwell’s targeted keyword collection feature.

One of the most exciting things about this approach is that, while it works great for today’s enterprise information infrastructure, it is perhaps even more powerful in tomorrow’s. As your company’s information stores gradually shift toward the cloud, leveraging the indexes in the cloud becomes essential to being able to access the information that lives there in a fast and efficient manner. It’s simply not feasible to be able to use the “one-off” or “uber-index” approaches when data is living in a cloud infrastructure, since data access rates are often slower because they are occurring over a wider-area network.  Last year, Clearwell was the first e-discovery platform to support direct access of cloud Exchange and SharePoint environments, and now with keyword collection we have made another great stride forward in achieving our customer’s vision for next generation e-discovery. And there’s still more to come as we accelerate our product development by integrating with Symantec’s world-class information management team. Stay tuned!

The electronic discovery world is buzzing about the malpractice case filed again Amlaw 100 firm McDermott Will & Emery.  There are a few good summaries here and here, but the gist of the complaint is that McDermott failed to properly supervise the electronic discovery efforts for their client J-M Manufacturing (J-M) in response to a qui-tam investigation.  According to a lawsuit filed by J-M in a California state court, McDermott inadvertently produced 3,900 privileged documents that were handed over to the federal government (and subsequently to a 3^rd party).

In terms of the nitty-gritty, the complaint alleges that McDermott used electronic discovery vendor Stratify (formerly part of Iron Mountain, now absorbed into Autonomy) to process and host the data.  Then, McDermott apparently retained a bevy of contract attorneys to review collected ESI from the 160 custodians, ultimately producing 250,000 documents that were presumably relevant, but not privileged.  The complaint contains the following particulars:

“12. Defendants owed PLAINTIFF a duty to render legal services competently. Defendants breached that duty by, inter alia, producing privileged documents to parties adverse to JME in litigation without obtaining its informed consent, failing to supervise attorneys and vendors MWE contracted with to perform the review and production of documents, and charging JME fees and costs for performance of such work that was not properly performed, or not performed at all.”

Surprisingly, this entire discussion is about a mere complaint filed against a large firm, who assuredly will wage numerous procedural challenges.   Thus, it’s questionable whether this case even sees the light of day.  So, why is it showing up on the radar of so many experts and pundits?  First of all, as Ralph Losey notes:

“This malpractice suit is an important and widely talked about event because it represents the first time, to my knowledge, that a law firm has been sued for e-discovery malpractice. We have all been waiting for this to happen. It was inevitable.”

But, novelty alone doesn’t usually make headlines, unless where there’s also smoke there’s probably fire.  Given the rise in electronic discovery sanctions against counsel, it has long been a fait accompli that a corporate client who experienced spoliation sanctions or an inadvertent production would start pointing fingers at other participants in the process, including the law firm that directed the e-discovery effort or the service provider who hosted the review process.  A recent Duke article noted that “[c]onsistent with the overall increase in sanction cases,…counsel sanctions for e-discovery have steadily increased since 2004.”  The article identified various levels of misconduct as the basis for counsel sanctions — “four cases involved negligence, seven cases involved gross negligence, nine cases involved reckless disregard, and ten cases involved intentional conduct or bad faith.”  Significantly, the article also noted that sanctions can be based on the “counsel’s personal execution of discovery tasks or on the counsel’s role in coordinating and overseeing the client’s discovery.”  That latter element seems to be the case with the claims against McDermott, and coupled with an inadvertent production (the third rail of electronic discovery) it doesn’t seem too shocking that a malpractice action would get filed.

This lawsuit does serve as a cautionary tale for those firms that continue to do things the old fashioned (i.e., 1.0) way.  While not an exhaustive list, this means some or all of the following: employing custodian self collections, using blind key word searches, failing to do sufficient data sampling (at the search and production phases), opting to not utilize early case assessment approaches, lack of search strategy and iteration, failing to optimize the review process, etc.  Surprisingly, old school approaches to electronic discovery are staggeringly common.  In fact, I’ve recently talked to some well traveled practitioners who’ve actually felt like their firms have gone backwards in recent years as prices for basic, block and tackling e-discovery services have plummeted.

If nothing else, we know that attorneys are hyper vigilant about their malpractice insurance.  And, it’s not too hard to see how premiums may go up with increasing e-discovery claims, successful or not.  So, while it’s unclear what will happen to McDermott, if it can happen to an Amlaw 28 firm (with roughly 1,000 lawyers) it can probably happen to any firm who’s not being as diligent as they should.

As a final note of supreme irony, McDermott will likely have to conduct electronic discovery as they defend their electronic discovery malpractice claims.  I wonder if they’ll use Stratify and outside contract attorneys.  I’d guess not.