e-discovery 2.0

Most science fiction visions of the distant future seem to contain a rather singular fear: that the human race will be taken over by computers.  Think “Terminator” series, preferably without the naked Arnold Schwarzenegger visual.  Regardless of whether this vision fills you with trepidation or excitement there is a very real possibility that we’re on the cusp of computers taking over a significant e-discovery task for attorneys.

For past several decades, attorneys have had to manually review information for relevancy and privilege in response to the e-discovery process.  Quoting from Information Inflation: Can the Legal System Adapt? by George Paul and Jason Baron, this task has always been viewed as sacrosanct “because of ‘death penalty’ waiver doctrine that evolved long ago when information was still manageable.”

Like so many industries, the legal profession has attempted to grapple with the transformation that the digital revolution has brought to the forefront.  The latest revisions to the Federal Rule of Civil Procedure (FRCP) is the most obvious case in point.  And yet, electronically stored information (ESI) is proving difficult to fit into traditional, even remodeled, paradigms.  Even ignoring (for the moment) the proliferation of novel data types (i.e., blog content, voice over IP or VOIP, webmail, text messaging, web services, etc.) the amount of data that attorneys are being required to review has reached a tipping point of review feasibility.

Back in the day, information was viewed in terms banker boxes of information, and even in the most document intensive discovery matters this measuring stick belied the belief that armies of attorneys could conceivably conquer the massive document review problem.  But now, we often see clients that process routine matters containing terabytes of information.  Most of us in the e-discovery space have become numbed to the abstract nomenclature of megabytes, gigabytes, terabytesⁱ, petabytesⁱⁱ, and in the process we may have failed to realize that we have moved well beyond the scale of information that can be reasonably attacked with even the largest armada of contract attorneys (assuming that the client could conceivably bear the astronomical costs).

“At the petabyte scale, information is not a matter of simple three- and four-dimensional taxonomy and order but of dimensionally agnostic statistics. It calls for an entirely different approach, one that requires us to lose the tether of data as something that can be visualized in its totality. It forces us to view data mathematically first and establish a context for it later.”ⁱⁱⁱ

I’m certainly not the first to point out that this tipping point is coming, but now we are really starting to see early adopters respond to this sea change. In their linked article above, George Paul and Jason Baron state “It is no exaggeration to say that litigation, as we have known it, is threatened by information’s new hyper-flow. The amount of electronically stored information relevant to a case is already a stress point in litigation.  […]  Litigators can no longer depend on manual review alone….”

Up until now, attorneys and the clients that are footing the bill have had to make a Hobson’s choice:  either “force parties to continue hugely expensive privilege reviews, or to forego the attorney-client privilege or work-product privilege altogether.”   But, now it appears that another way is evolving.

The following lays out a scenario where a non-manual review methodology may make sense.  ***Please note: this approach is not without risk.  At this moment in time neither clawback provisions, the potential adoption of Evidence Rule 502 nor any other know prophylactic measure can completely insulate a producing party from the unforeseen consequences of an inadvertent disclosure.  But, as they say, desperate times call for desperate measures….

Step one: Evaluate the Environment

The following factors represent some of the elements that should be taken into consideration prior to skipping the normal, human based review steps that are seen in most e-discovery matters.

1. Large data set.  This may sound a bit obvious, but a non-manual approach is best suited for large, unwieldy data sets.  The corpus doesn’t need to be in the terabytes, but the data set should be evaluated in term of discovery processing costs and attorney review estimates.
2. Short Production Timelines.  Once the above calculations are conducted, the next step is to determine if a human based review could even conceivably be conducted in the given time frame.  In many instances, an eyes-on review process just won’t be feasible since there won’t be enough bodies to throw at the problem.
3. Next Gen “PAR” Tools.  In order to pull this “review-less” review process off, both safely and quickly, the responding party needs to have access to fast, robust processing, analysis and review (“PAR”) tools.  Certainly, it’s possible to have this scenario work with an e-discovery service provider, if they have the capability.
4. Relatively Small Amount in Controversy.  For the time being, this approach should not be considered for any “bet the company” litigation, nor anything with significant downside risk (governmental inquiries, punitive damages, class actions, 2nd requests, etc.).  Yet, for many standard commercial lawsuits, corporate investigations, HR claims, etc. this review-less approach may be worth considering.
5. Ability to Use a Clawback Provision.  Entering into a clawback provision with the opposition is mandatory in this methodology since the chances of an inadvertent production are statistically ever-present.  Yet, until Evidence Rule 502 is resolved, there will always be a risk that the clawback won’t be enforceable against 3rd parties.
6. Non-governmental Production.  Most information in governmental productions becomes part of the public record, meaning that a clawback isn’t going to be feasible.  Here, trade secret information, personally identifiably data and the like would be disastrous if pushed out into the public domain.

Step two: Perform a Risk/Benefit Analysis

Next, take all the above factors into consideration and determine if the risks (of inadvertent production, the clawback being ineffective, etc.) are worth the benefits (reduced costs, lower attorney review fees, ability to meet deadlines, etc.).

Sure this is hard work, but the alternative (manual review) is more ephemeral than realistic.

[In my next post, I’ll address the tactical steps to conduct a review-less review process.  Stay tuned……]

ⁱ One terabyte is generally estimated to contain 75 million pages and could conceivably cost $18,750,000 to review.  Anne Kershaw, Automated Document Review Proves Its Reliability, 5 DIGITAL DISCOVERY & E-EVIDENCE 11 (2005).

ⁱⁱ According to Wired, we’re now in the “Petabyte Age” where that amount of data is processed by Google’s servers every 72 minutes.

ⁱⁱⁱ Wired article, above.

The recent announcement of $18 million in financing for PSS Systems got me thinking about preservation.  PSS is a provider of enterprise-class preservation and litigation hold management systems with solutions starting in, from what I can tell, six figures.  Nevertheless, this begs the question, why would a Fortune 500 company need such an expensive enterprise class software application to manage legal holds?

So, let’s start from the top…

With the advent of e-discovery during the last decade an entirely new class of evidence spoliation came into existence - i.e., situations where electronically stored information (ESI), particularly back-up tapes, could inadvertently become overwritten, lost, erased, etc.  In the good old days of paper-based discovery, there was certainly an opportunity for spoliation, but paper documents didn’t routinely become lost or otherwise unavailable, unless in extreme instances of intentional spoliation.  For a particularly comprehensive tome on this type of negligent spoliation, please see this excellent piece written by Judge Scheindlin (of Zubulake fame).

Accordingly, in the past several years litigators have had to learn and then re-learn the notion that the duty to preserve ESI begins once litigation is “reasonably likely.”  Unfortunately, this duty to preserve is fraught with a number of practical challenges, including:

• When is the duty triggered?  For example, the duty is in most instances certainly in place prior to a complaint being actually served.  But, as you move upstream from that crystalline moment reasonable minds certainly can differ about when litigation is “reasonably likely.”  EEOC claims, in the HR context, are a good example of potentially early trigger points.
• Then, assuming that the duty is triggered what must then be preserved?  Is it just the ubiquitous email?  Or, as is more likely, will an increasingly broad and voluminous set of ESI be implicated, such as loose files, instant messaging, blog posts (maybe this one?), mobile or PDA/handheld data, deleted but forensically recoverable files, etc.?

Those two thorny problems aren’t the only issues that counsel needs to deal with when they embark upon issuing a legal “hold” – the decree that instructs custodians of their obligation to preserve all relevant information related to the matter at hand.  But, the duty to preserve is only the start of the challenge.  This is where folks like PSS come in, meaning that they manage the potentially complex logistical tasks associated with hold notification, monitoring, and compliance.

Here’s where I start to have a problems with large scale, complex preservation efforts.  Let’s take a somewhat common example:  a multi-national enterprise is sued for misappropriation of trade secrets.  Even prior to the complaint being filed, plaintiff’s counsel issued a demand letter, which in some cases could be held as a triggering event.  But, in either case, once the complaint hits the GC’s desk the duty to preserve is clearly in force.   Let’s then say that in consultation with outside counsel they wisely embark on a set of interviews to determine the scope of departments/locations/custodians that may be reasonably implicated.  Then, following the synthesis of this information they issue a legal hold notice to 2,500 people located throughout numerous domestic and international offices.

Now, here’s where the risk comes in…   One thing is statistically certain with that number of custodians: the legal hold will not be followed to perfection.  If I were more mathematically inclined I’d say it could be reduced to a formula along these lines:

Legal hold compliance *decreases* exponentially as you multiply:

• The number of custodians
• The length of time the legal hold is in effect
• The types and volumes of potential ESI that may be relevant
• The presence of individuals who don’t want data to be preserved due to their own perceived errors/foibles/omissions

The answer, in my mind, doesn’t lie in a better mouse trap to manage the vagaries of the legal hold process.  No, the best way to take the risk out of the legal hold process is to move very rapidly from preservation to collection.

Once ESI is collected two main things start to happen:

1. Subjective notions about the universe of data (allegedly) covered by the preservation process can be changed into objective observations that the custodians really are the right ones.  For example, in the above example the 2,500 custodian list is again almost certainly not correct.  Since the decision process was made subjectively (likely without insight into the data) the custodian list is inherently either under or over-inclusive.  However, with the advent of early case assessment solutions, the preserving party can now quickly collect and assess an initial corpus of data to ensure that exactly the right folks are in the collection/preservation process.
2. Once the ESI is collected, the risk of loss, deletion, etc. will largely have been taken out of the equation meaning that the danger of spoliation is greatly reduced.

My belief is that the larger the preservation effort the more likely there will be gaps that the opposition can use as leverage.  Scaling up the preservation effort is only one way to skin the cat.  Instead, the better practice is to start small, collect quickly, and then expand collection efforts once your legal team has objective insights into the case data.

Yes, preservation is still important. But, biting off more that you can chew simply means a statistically greater chance of failure.