e-discovery 2.0

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)

Is there a place in eDiscovery today for hard drive imaging and bit by bit copies, which collect deleted items or slack/unused hard disk space?  The answer is yes with some important limitations.  For the vast majority of matters, ESI can be collected without imaging drives or utilizing proprietary container files.  However, I occasionally still encounter folks who are victims of the dated and costly misconception that eDiscovery always requires the bit-level imaging of hard drives.

There are situations, though, where the existence of data (as opposed to its content) is central to the matter – when companies suspect employees of stealing proprietary information or when employees leave a company under suspicious circumstances.  In these and other similar situations, it may make sense to have the employee’s workstation hard drive imaged for full forensic analysis.  Even in these scenarios, I find that companies are more likely to hire an external investigator to perform this task to allay suspicions of tampering or bias, and the company generally would prefer that this investigator be the one to testify about this sensitive data acquisition.  Then, for ESI beyond the target employee’s hard drive, other collection methods may be used.  As we’re now midway through 2011 – a year in which I expect to see eDiscovery fully embraced by many corporations as a true business process – I wanted to analyze why the forensic disk image myth still exists, where it came from, and what the law really requires of an eDiscovery collections process.

Traditionally, cases that mentioned full forensic imaging of hard drives began their captions with United States v. or State v. because they were criminal matters.  In traditional civil litigation – even the behemoth eDiscovery cases that get all the bloggers blogging – forensic imaging simply is not required or needed.  In fact, in most cases, it will dramatically increase the cost associated with electronic discovery – this process adds unnecessary complexity in downstream phases of eDiscovery and leads to vast over-collection.  Why collect the Microsoft Office suite 50 times when what you are really required to preserve and collect are the files created with those programs?  When using disk imaging, program files are collected which drives up storage costs and requires the post-collection step of deNISTing (removing system files based on the NIST list).  Why not leave those system files behind and perform a targeted collection of only user-created content?    In addition, the primary rules governing civil litigation – the Federal Rules of Civil Procedure and Federal Rules of Evidence – simply do not require exact duplication of electronic files.  I am amazed that there are so many experts who are still pushing full forensic imaging and duplication in every case.  In fact, this goes against best practices published by The Sedona Conference, EDRM, and in the E-Discovery textbook co-authored by Judge Shira A. Sheindlin.

In comment 8c of the Sedona Principles, the authors call making forensic image backups of computers “the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence.”  The comment goes on to say that “it should not be required unless exceptional circumstances warrant the extraordinary cost and burden.”  In a whitepaper authored for EDRM by three eDiscovery experts from KPMG, LLC, the authors discussed the high cost of forensic bit-level imaging and, instead, suggested that targeted collection of ESI would be sufficient in the vast majority of non-criminal matters.  They state, “[t]he challenge of Smart EDM [Evidence and Discovery Management] is to obtain targeted files in a forensically sound manner – chain-of-custody established, proven provenance, and metadata intact – without having to resort to drive imaging.”

In Electronic Discovery and Digital Evidence: Cases and Materials, written by Judge Shira A. Scheindlin, Daniel J. Capra, and The Sedona Conference, the authors state that,

“because imaging software is commonly available, and because the vast majority of training programs in the field of electronic discovery revolve around forensics, there is a growing tendency to want to ‘image everything.’  But unless an argument can be made that the matter at hand will benefit from a forensic collection and additional examination, there is no reason to do a forensic collection just because the technology exists to do it.”

So, with the top experts in the field saying the days of “image everything” should be over, why does it still happen?  Why are the victims of this antiquated workflow still paying the exorbitant costs of a solution that does not really meet their requirements?  Perhaps a historical perspective will be helpful in explaining.

Why Drive Imaging and Proprietary Containers?

I do not think there is any debate on the benefit of having a bit-level image of a hard drive in a criminal investigation.  However, traditionally, the investigators using these methods needed a way to get the imaged drive safely back to a lab for further analysis.  Companies or law enforcement agencies that hired third-party investigators to image drives had to transport the data, maintaining chain of custody, and preserving all contents in an un-alterable state through several phases of the investigation.  And, in criminal matters, it was especially important to maintain the integrity of the evidence when the electronic evidence was central to the government’s case.  Remember, the burden of proof in a criminal matter is “beyond a reasonable doubt” (along with a host of constitutional considerations).  Alteration of key evidence could certainly create reasonable doubt and hose the prosecution’s case (or, worse, the evidence gets tossed by the Court before the trial even begins).  The container file ensures that no matter who handles the evidence, checksums can prove that the contents were not altered since the initial imaging.

Many vendors now offer logical image containers as an alternative to doing a full bit-level image of the drive.  However, in corporate eDiscovery, this is still overkill because the tools and solutions being used downstream still have to unpack or parse these proprietary container formats for processing and analysis.  In fact, even software from the vendors who created these container formats must “crack them open” to get to the contents within.  This seems to add a layer of complexity that has not been needed since the days of the external examiner coming in with her forensic toolkit to do drive images. The format was created to solve a very specific problem, and little thought was given to the use of this format in a holistic process like what is typically seen in civil eDiscovery.   There is no longer a need for a container for portability of evidence because it is most likely going to be processed in place after collection while residing on a secure evidence store on the company’s network.  I have heard “what if our collections methods are challenged?”  And to that, I would respond that we are not in criminal court and that the requirement in civil court is reasonableness, not perfection.  Now, if an employee is suspected of wrongdoing and the potential deletion of files will dramatically alter the case, then by all means, hire a forensic investigator and follow all of the protocols established over the last several decades in computer forensic science.

Fast forward to the 21^st century

Corporations are bringing eDiscovery in-house; they are building a business process around it to minimize risk and drive enormous cost savings, and in today’s world of civil litigation, there simply is not a need for these drive images or proprietary containers.  First of all, the burden of proof in a civil matter is “by a preponderance of the evidence.”  What this means is that the burden is satisfied if there is greater than 50% chance that a proposition is true.  This is a much lower standard than in criminal cases.  But, burden of proof goes more to the weight evidence is given by the court or jury.  Before that is even considered, evidence must pass several hurdles of admissibility.  As we will explore, these standards of admissibility have also been the recipients of significant bolstering from vendors over the years.

The Path to Admissibility

There are several hurdles to admissibility for any type of evidence, and because they are not within the scope of this post, I will forego any discussion of relevance, FRE 403, or the hearsay rules.  I will focus on the issues that tend to be associated with electronic evidence: authentication and the “best evidence rule”.  There are some examiners and perhaps even vendors that would argue electronic evidence is simply not admissible if not collected using bit-level imaging (and sometimes 2 copies – one that is referred to by examiners as the “best evidence” copy and another “working copy” to be analyzed).  This is simply not true.  What we will find is that the collection method will go more to the weight of the evidence rather than the minimum showing needed for admissibility (hence, the discussion of burden of proof above).

All evidence must be authenticated pursuant to FRE 901.  This is a “don’t pass Go” threshold requirement for admissibility.  FRE 901 is satisfied by “evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Notwithstanding a “self-authenticating” piece of evidence pursuant to FRE 902, the proponent must establish the identity of the exhibit by stipulation, circumstantial evidence, or the testimony of a witness with knowledge of its identity and authorship.  Typically, objections to this process would tend to go toward whether the exhibit is an original, was altered, or the witness with whom the proponent is attempting to authenticate the exhibit is not able to so based on lack of personal knowledge or some other defect.  Mostly these objections deal with the authenticity of the contents of the exhibit, and the rules in Article X of the FRE are helpful here.  Rule 1001 defines an “original” with respect to data stored in a computer or similar device as “any printout or other output readable by sight, shown to reflect the data accurately.”  This is a far cry from a bit-by-bit forensic image!  Rule 1002 – often referred to as the “Best Evidence Rule” – requires that “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.”  Not only do these rules not require exact duplication of the electronic files, but they do not require imaging the entire 80GB hard drive to collect the 100MB of files that are potentially relevant to the case.  What they do require, though, is the ability to show that a document being proffered is the same document that was originally created.  In Re Vee Vinhnee, 336 B.R. 437, 444 (B.A.P. 9th 2005). Also, Judge Grimm sets out an extremely comprehensive analysis of what is required for the admissibility of electronic evidence in civil litigation in Lorraine v. Markel American Insurance Company, 241 F.R.D. 534 (D.Md. May 4, 2007).  In Lorraine, he notes that In Re Vee Vinhee may set out the most demanding test for admissibility of ESI.

Maintaining Forensic Integrity

So, how do I combat the claims that “they must have altered that document” or “Your, honor, I swear that line about ‘acceptable losses’ was not in the safety memo when I created it”?  This is where hash value becomes a wonderful thing.  Computing the hash of an electronic file, or computing a hexadecimal checksum based on analysis of the contents of an electronic document, is essentially like recording the DNA of an electronic file.  If the file is altered, its hash value would be different.  So, by computing the hash value at the source, in transit, and at the destination, I can ensure that the electronic file is in exactly the same state as it was at the source (or, that the collected document is the same as the document originally created).  Now, add the ability to report on that information and those container files and full forensic disk images really do become extreme overkill.

The important distinction here is that the term “forensic” does not refer to a type of technology or the products of a specific vendor – despite claims and propaganda to the contrary.  Forensic refers to the methodology used by the person collecting the evidence – whether it is finger prints from a weapon or electronic files from an employee’s laptop.  Forensic imaging, however, refers to the process by which an entire hard disk is copied bit by bit to create an exact duplicate of that hard drive in a forensic manner.  It is entirely possible for a collection of ESI to be “forensically sound” by simply employing the technique described above of taking hash values at each stage of the process to be able to prove that the files were not altered during collection.  As long as chain of custody is also maintained (much easier to do now that we are not using multiple tools, vendors, locations, and people to do the job), then the process should meet the threshold admissibility requirements of the Federal Rules of Evidence.

Opponents will still bring up claims that the evidence must have been altered, or the expert familiar only with forensic imaging technologies will try to use the argument that only vendor X’s technology is “court vetted,” so any other method is not acceptable.  But, to these opponents, I would argue two points:

1. No technology is “court vetted”.  The operator’s use of the technology in the specific case (in a specific jurisdiction) was acceptable to the court to meet the threshold showings required by FRE 901, 1001, and 1002 – as well as any rules of procedure governing the production of discovery in either a civil or criminal matter.  Wow – that would be a very long footnote on a marketing slide…probably why it is not usually mentioned.
2. The process is forensically sound, and you can prove that the documents were not altered from collection through production by referencing the hash value and maintaining copies of the original native files analyzed on a secured preservation store.  This would exceed the requirements of FRE 901, 1001, and 1002 – but would provide protection against claims going to the “weight” of the evidence by opponents who would cry foul.

What Now?

So, where does all of this leave us?  First, in the vast majority of civil litigation matters where electronic discovery is being performed, forensic bit by bit imaging of computer hard drives is simply not required.  Vendors have promoted this practice over the years, but all this has done is over-complicate the eDiscovery process for many unsuspecting litigants and dramatically increase costs because the model simply does not scale.  Moreover, the effort and cost required to deal with these full drive images downstream in the process is often overlooked by these vendors and overzealous consultants.  Next, we now know there is a better way – targeted, forensically-sound collection of ESI using streamlined and automated solutions that maintain custodian relationship – even for shared data sources – throughout the eDiscovery lifecycle, preventing form of production disputes and other calamities that have plagued this industry for the last decade.  There is a better way to collect ESI that will provide exponential cost savings all the way to production.

These days, being mentioned on a late-night talk show is pretty much a stamp of “going mainstream”. This is true of celebrities (notably the One-Man Band that is Charlie Sheen), public figures (Captain “Sully” Sullenberger, who piloted the US Airways plane to a safe landing on the Hudson River), and even infomercial goods (who isn’t familiar by now with the Snuggie?)

In the e-discovery world, we realized just how mainstream this industry is becoming when we made mention on The Daily Show with Jon Stewart. With guest star Fareed Zakaria, fresh off the release of his new book, on set to discuss the American economy and the impact of technology on corporations, audiences were treated to this nugget:

Zakaria:   Machines can do things that people used to. There’s now computer programs that can do stuff that lawyers used to be able to do – discovery and things like that. May not be such a bad thing…

Stewart:   What can lawyers do that computers can’t do?

Lawyer jokes are never in short supply, and leave it to Jon Stewart not to miss a timely jab when one can be thrown. But we took notice because, of all the examples Zakaria could have used for technology’s impact on businesses everywhere — he chose to highlight the role of e-discovery software.

This was far from the first “mainstream” move for the e-discovery industry. In March, The New York Times published a featured – and top-emailed – article on advances in electronic discovery software. In May, leading analyst firm Gartner published the Magic Quadrant for E-Discovery Software, its first Magic Quadrant on the electronic discovery industry. And then in June, there it was: electronic discovery, right alongside CNN’s Fareed Zakaria and all Jon Stewart’s comedic antics on The Daily Show. Taken together, it’s clear that e-discovery is a hot topic on the minds of business folks and, increasingly, mainstream audiences. We’re eager to see where it comes up next – and secretly hoping the SNL sketch team is taking note.

In the world of technology we live in, a huge amount of benefit is created when people apply certain well-known techniques to solve problems and create value to the broader community. Such techniques are often the result of painstakingly long and laborious research, driven primarily by academic institutions with private industry either funding such research directly or by co-opting them in their own work. When the industry as a whole recognizes a certain methodology, it gains popular usage.

In information retrieval, searching and retrieving relevant content from unstructured text has been a vexing problem, and we’ve had decades of the brightest minds applying their collective intelligence and the rigors of peer review to validate and establish the most effective way to solve a retrieval problem. And, research forums such as TREC, SIGIR and other information retrieval conferences establish a venue for advancing the state of the art. So, when Recommind announced that they have been issued a patent on Predictive Coding, I took notice, especially since it touches a nerve with those who believe research should be openly shared.

The patent lists six claims that describe a workflow whereby humans review and code a document and the coding decisions applied to the document sample are projected or applied to the larger collection of documents. Anyone who has even the slightest exposure to information retrieval research will recognize this as a very common interactive relevance feedback mechanism. Relevance feedback as a way to perform information retrieval has been studied for well over forty years, with a paper as early as 1968 by Rocchio J.J., titled Relevance Feedback in Information Retrieval. It falls under a category of methods broadly known as machine learning.

Any supervised machine learning system involves creating a training sample and using that sample to project into a larger population. The fact that one could claim patentable ideas on something that is so widely known and used is puzzling.  Any workflow that employs machine learning would include the steps of creating an initial control set, coding that by human review, and applying the learned tags to a larger population.  In fact, the Wiki article Learning to rank describes precisely the workflow that is claimed in the patent and as part of our participation in the TREC Legal Track 2009, Clearwell submitted a paper with iterative sampling based evaluation and automatic expansion of initial query.  In that paper, we describe exactly the workflow postulated by the six claims of the patent.

In terms of other prior art that would potentially invalidate the patent, the list is long. Let’s start with Text Classification. Text Classification using Support Vector Machines (SVM) was first published by Thorsten Joachims in 1998, in the Proceedings of Sixteenth International Conference on Machine Learning, as well as his book Learning to Classify Text Using Support Vector Machines: Methods, Theory and Algorithms, published by The Springer International Series in Engineering and Computer Science.  Now a well-recognized Professor of Computer Science at Cornell University, that work is widely cited as a seminal work on the area of machine learning and text classification. Interestingly, this work was cited by the Patent Examiner as prior art, but the inventors missed listing it. Nevertheless, that work and further work by several academics such as Leopold and Kindermann has already established the use of Support Vector Machines as a useful technique for machine learning. To claim the novelty of its use in automatically coding documents is, in my opinion, a hollow claim.

Another technology mentioned in passing is Latent Semantic Indexing (LSI). This is proposed as a retrieval technique by Deerwester, S., Dumais, S.T., Furnas, G.W.,Landauer, T.K., Harshman R. in their paper, Indexing by Latent Semantic Analysis, in Journal of the ASIS, 41(6):391-407, 1990. The use of LSI for semantic analysis, concept searching and text classification is also very widespread, and once again, it seems ridiculous to claim that it is something novel or innovative.

Next, let’s examine the use of sampling to validate the initial control set. Use of sampling for validation of a control set of documents is in fact such a widely known technique that most e-discovery productions employ sampling. In fact, the Sedona Commentary on Achieving Quality and the EDRM Search Guide recommend use of sampling to validate automated searches. Furthermore, several E-discovery opinions such as Judge Grimm’s opinion in Victor Stanley [Victor Stanley, Inc. v. Creative Pipe, Inc. , 2008 WL 2221841 (D. Md., May 29, 2008)]  suggests that any technique that reduces the universe of documents produced must employ sampling to validate automated searches.

In short, we think the claims issued in the patent and the associated workflow are so commonly used that the workflow is neither novel nor non-obvious to a trained practitioner, and there is enough prior art on each of the individual technologies to warrant a re-examination and eventual invalidation of the patent. In any event, it is fairly easy for anyone to pick up existing prior art and devise a similar workflow that achieves the same or better outcome, and attempt to enforce the patent will likely be challenged.

But there is an even bigger issue at stake here beyond the status of Recommind’s patent: namely, shouldn’t the e-discovery vendor community continue to work, as it has for years, toward what is in the best interest of the legal community and, more broadly, the justice system? Recommind’s thinly veiled threats about requiring industry participants to license their technology are an affront to those who have invested years developing the technology and practicing the approach in real-world e-discovery cases. Spend a few minutes trolling (no pun intended) around on archive.org and you’ll see that early predictive coding companies like H5 were practicing machine learning and predictive workflows in e-discovery over two years before Recommind announced their first version of Axcelerate.

Wouldn’t a better outcome be for corporations and law firms to benefit from the innovation that comes from free competition in the marketplace, while still honoring the sort of novel, non-obvious innovation that warrants patent protection? Legitimate patents that actually encourage and protect investments by an organization are fine, but process patents that attempt to patent a workflow are bad for business. With such an approach, the full promise of automated document review (which, as any truly honest vendor should admit, still has much more room to grow and develop) can be fully realized in a way that both provides vendors with the fair and just economic rewards they deserve while helping the legal system become radically more efficient.

I was at Sedona midyear meeting last week and during Ken Withers’ excellent discussion of recent e-discovery case law, a few thoughts occurred to me. First, there are so many cases coming out now each week it’s hard to stay above the fray and mine for useful nuggets. The task is a bit Sisyphean, so folks like Ken (who keep a rolling index of cases) are particularly helpful. Next, I was struck by how hot Pension Committee still is, even after almost a year and a half. Certainly, this ongoing spotlight wasn’t an accident, and it’s almost certain that Judge Scheindlin is pleased by the ongoing debate.

I frequently get questions from enterprise clients regarding which cases they should know about, and so I put together an EDRM oriented (left to right) list for folks who just can’t get to all the latest cases. While it’s not an annual roundup per se, I do think it’s a bit more functional for busy electronic discovery professionals who need to stay current. So, here’s the buzz index of cases arranged by topic:

Preservation: The Legal Hold Gold Standard

Case: Pension Committee of the Univ. of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al. (S.D.N.Y. 2010).

Summary: The dispute focused on claims by a group of investors who brought an action to recover losses of $550 million dollars stemming from the liquidation of two British Virgin Islands based hedge funds. Unlike many typical e-discovery disputes, this instant action focused on the conduct of the plaintiffs as they attempted to deal with the often murky landscape of electronically stored information (ESI) preservation, collection and production. Judge Scheindlin goes out of her way to crystallize duties and identify the type of conduct that can cause an e-discovery breach. “After a discovery duty is well established, the failure to adhere to contemporary standards can be considered gross negligence. Thus, after the final relevant Zubulake opinion in July, 2004, the following failures support a finding of gross negligence, when the duty to preserve has attached:

• to issue a written litigation hold;
• to identify all of the key players and to ensure that their electronic and paper records are preserved;
• to cease the deletion of email or to preserve the records of former employees that are in a party’s possession, custody, or control;
• and to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.”

Why it’s (still) important: First of all, Pension Committee is written by Judge Scheindlin, who is the most famous electronic discovery jurist on the planet. Next, since she’s in the Southern District of New York, it means that folks even in other jurisdiction that aren’t bound by her opinions still must take heed given the fact that New York is home to so many multinational organizations. Finally, her opinion is the clearest (even if disputed) articulation regarding the standard of care for the issuance of legal holds and the duty to preserve ESI. She attempts to categorically define conduct that is grossly negligent and therefore susceptible to extreme sanctions, including spoliation inferences and terminating sanctions. Fortunately, she recognizes the numerous challenges associated with electronic discovery. And, so as to blend in a healthy dose of reality Judge Scheindlin also said: “In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection.”

In the end, Pension Committee, was the case of the year in 2010 and even in 2011 it’s generating an unprecedented level of retrospectives (here and here). It may be because Judge Scheindlin’s relatively bright line standard has created so much debate, but in the end the Pension Committee discussion will likely continue for the foreseeable future (perhaps only ending when/if the culpability rules are amended to create a unified national standard).

Preservation: Why Preserve in Place is Risky?

Case: Wilson v. Thorn Energy, LLC, (S.D.N.Y. 2010).

Summary: In Wilson, the defendant corporation identified a flash drive that contained relevant ESI, but rather than copying that data safely to a centralized evidence repository, the defendant’s employee chose to hold on to the drive, putting it instead into a desk drawer. When the files were requested for review and production, the files could not be read from the drive. The defendant’s employee attempted to recover the ESI contained on it, but those efforts failed. Granting plaintiffs’ motion for sanctions, the court ordered that defendants would be precluded from offering evidence at trial concerning the data contained on the discarded drive.

Why it’s important: In today’s e-discovery world, many organizations are instituting hold processes via manual solutions and then waiting weeks or months to ultimately collect the ESI. Wilson shows the danger of simply preserving data and makes the argument that you should either “collect to preserve” or collect very shortly after the litigation hold notice goes out. While focusing on a certain media type (flash drive), this analysis can be extended to any digital system containing ESI that inherently has some set failure rates or can be imagined to fail without express, conscious action (due to loss, theft, recycling, etc.).

Identification & Collection: “Manual” Collections Come Under Fire

Case: Green v. Blitz U.S.A. (E.D. Tex. Mar. 1, 2011)

Summary: In this case, Plaintiff sought to re-open her lawsuit despite prior settlement upon learning that defendant had failed to produce relevant documents. Finding that defendant had committed discovery abuses, including failing to disclose relevant evidence and failing to issue a litigation hold, the court ordered defendant to pay plaintiff $250,000, to provide a copy of the court’s order to plaintiffs “in every lawsuit proceeding against it” for the past two years and to file the court’s order in every case that defendant is involved in for the next 5 years. It was revealed that the employee “solely responsible for searching for and collecting documents relevant to litigation” issued no litigation hold, conducted no electronic word searches for emails, and made no effort to speak with defendant’s IT department regarding how to search for electronic documents.

Why it’s important: Green is the latest in a line of cases [See also Ford Motor Co. v. Edgewood Properties Inc., 257 F.R.D. 418 (D.N.J. 2009) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009) ] that have been highly critical of manual (or self) collection efforts by the individual custodians. Historically, if the custodians were monitored/supervised enough by counsel, this manual collection process was largely deemed defensible, but it looks like this behavior is simply too risky for any conservative enterprise. The better practice is to leverage the custodians to point out where relevant ESI might exist and utilize software tools to conduct broad collections from key players. While it’s not necessary to use IT tools to collect data immediately for all custodians who have received a litigation hold notice, it’s probably unreasonable to not quickly collect ESI (via formal, IT based methods) from at least some subset of key players. The main point is that this isn’t an all or nothing calculation. Costs, risks and benefits should all be carefully evaluated and documented, in case there’s a downstream challenge.

Analysis & Review: Failure to Test Keywords and Sample

Case: Mt. Hawley Ins. Co. v. Felman Prod., Inc., (S.D. W. Va., 2010).

Summary: In this case the court examined the reasonableness of plaintiff’s precautions to prevent disclosure of email, which was inadvertently produced by the plaintiff amidst “a massive disclosure of e-discovery.” The Mt. Hawley court applied the five-factor test established in Victor Stanley, Inc. v. Creative Pipe, Inc. (D. Md. 2008) and found that the producing party had not taken reasonable steps during discovery. In particular, the court was unwilling to find that the inadvertent production of 377 privileged documents was “solely attributable” to a technological glitch and instead found that plaintiff and counsel “failed to perform critical quality control sampling to determine whether their production was appropriate and neither over inclusive nor under-inclusive.” This finding meant that their attorney client privilege was waived as to the subject documents.

Why it’s important: Mt. Hawley demonstrates why sampling and keyword search term formulation is critically important to any defensible discovery effort. In many instances where “blind” keyword strategies are used, the producing party is taking on an undue risk, in essence flirting with the “3^rd rail” of electronic discovery (inadvertent production). Blind keyword searching (followed by brute force review and production) is sadly still a very common practice today. My hope is that cases like Mt. Hawley will force the blissfully ignorant practicioners to take stock of their risky practices and get with contemporary best practices like ECA, sampling, iterative search and the like.

Conclusion

Simply by creating such a list, I’m sure to leave off cases other folks think are more buzz worthy. But, for me, having a few good legal chestnuts is better than trying to boil the ocean and synthesize all the available case law. If you have any comments I’d be eager to hear (good, bad or indifferent).

In past blogs I’ve discussed a number of cases that have expressed skepticism over the self collection of electronically stored information (ESI) in the electronic discovery process.  In many of these cases, the reviewing judge or magistrate has looked at this process with an increasingly jaundiced eye, in some cases using the self collection component as part of its rationale for sanctions.

My conclusion up until now has been that this collection methodology (where employees manually select and potentially harvest their own data) could be defensible if properly executed; meaning with the requisite level of attorney guidance and oversight.  And, while this is still technically accurate, I think the pendulum has swung far enough to proclaim that this approach is simply far too dangerous for most enterprises, except perhaps those that are extremely risk tolerant.

While there was no particular straw that broke the camel’s back, the trend in the case law now seems to be moving inextricably in one direction – i.e., that self (or manual) collection is no longer safe enough for average enterprises.  Just like tight rope walking without a safety net, self collection protocols aren’t inherently doomed to failure, but there isn’t much (probably any) margin for error.

In the recent case of Green v. Blitz U.S.A., (E.D. Tex. Mar. 1, 2011) we see yet another example of self collections gone awry.  In Green the Plaintiff sought to re-open her lawsuit despite a prior settlement, once she suspected that the defendant had failed to produce relevant ESI.  Finding that defendant had committed numerous discovery abuses, including not disclosing relevant evidence and failing to properly issue a litigation hold, the court put the hammer down, issuing a wide range of sanctions:

• Defendant had to pay plaintiff $250,000
• Defendant had to provide a copy of the court’s order to plaintiffs “in every lawsuit proceeding against it” for the past two years
• Defendant had to file the court’s order in every case that it is involved in for the next 5 years.

Self collection was again a material culprit in the culpable behavior.  It was revealed that the employee “solely responsible for searching for and collecting documents relevant to litigation” issued no litigation hold, conducted no electronic word searches for emails, and made no effort to speak with defendant’s IT department regarding how to search for electronic documents.  To exacerbate matters, the main individual in charge of collections was also closely tied to the research and development of the “flame arresters” that were at issue in this exploding gas can case.

Adding fuel to the fire (pun intended) was the fact that the responding company failed to locate or collect emails with the search term “flame arrester.”  The court went on to note that some of the smoking gun emails not only contained this “most obvious term to search for in electronic documents in this case”, but in fact “flame arrester” was used in the title of certain emails.

While folks have called this practice an example of a “fox guarding the henhouse,” in my mind it’s less that custodial bias renders self collection too risky for prime time.  While there are certainly examples like the Green case where bias likely was an issue, the bigger problem is that any significant reliance on custodians to direct a collection process (even a well supervised one) has too many failure points.  The most obvious (and innocent) scenario is where custodians simply can’t remember if they had responsive ESI or where such information might reside.  This problem can be particularly acute given the fact that litigation is almost always conducted in the rear view mirror.  Since I often can’t remember what I had for breakfast I don’t find it surprising that a custodian might not recall if they had data relating to a discrete issue 4-5 years ago.

As such, the contemporary “best practice” for the collection of ESI is quickly evolving past the old manual collection workflow.  Technology is rapidly making it quick and painless to conduct searches for blatantly relevant ESI (like emails with “flame arrester” in the title).  Not only can you conduct basic searches with existing technologies, but recent advancements around concept search and other analytical tools makes the failure to leverage these technologies seem that much more unreasonable.  For example, in the recent case of Northington v. H&M Int., (N.D. Ill. Jan. 12, 2011) the defendant was sanctioned, in part, because they didn’t search for minor misspellings of the plaintiff’s name.

When a court sees manual blunders like that in the Green case it’s not surprising to see such missteps cast as at least negligent and perhaps even more culpable.  This conclusion is made even easier when organizations like the Sedona Conference (in its Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery) state:  “[i]n many settings involving electronically stored information, reliance solely on a manual search process for the purpose of finding responsive documents may be infeasible or unwarranted. In such cases, the use of automated search methods should be viewed as reasonable, valuable, and even necessary.”

Green is now the latest in a line of cases [See also, Ford Motor Co. v. Edgewood Properties Inc., (D.N.J. 2009) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., (D. Utah 2009)] that have been highly critical of self collection efforts by individual custodians.  The better practice is to utilize technology to conduct collections from key players and perhaps leverage the custodians (and technology) to point out where relevant ESI might exist.  As such, a belt and suspenders approach is undoubtedly the safer way to go.  In this “dual protection” scenario “key custodians still search, identify, and self-collect what they think are relevant emails, but, as a fail safe, IT also collects all of the key custodians’ emails. Then attorneys search and identify relevant documents from this full, uncensored, unfiltered, collection. This double effort guards against the intentional and unintentional mistakes that can sometimes arise in self-collection.”

We know that electronic discovery is never going to be a perfect process, but self collections simply inject too much risk into an already complicated process.  Now is the time to change tactics and stop tight rope walking without a safety net.  After all, no enterprise wants to be the next to endure a highly publicized fall.

At Clearwell, we’re constantly ruminating on innovative ways to help make our customers’ e-discovery process more efficient. Given the astronomical growth of social gaming, we began asking ourselves, “How can we harness the power and passion of millions of social gamers for the greater good?”

Questions like this really get our engineers cooking, and what they came back with is, to steal a word from one of our most popular product launches a year ago, simply “magical”.

Starting today, Clearwell’s eDiscovery World leverages the red-hot consumer social gaming trend to provide dramatic and previously unattainable increases in e-discovery technology training and productivity. In fact, the promise of eDiscovery World is so great that we have added social gaming as a core part of our product architecture across all Clearwell modules, from legal hold through production.

And we’re not stopping there. We believe that strategic social gaming delivers such powerful benefits to a best practices e-discovery process, that we’ve proposed modifying the EDRM diagram to account for this critical new requirement for truly end-to-end discovery.

Prior to today, unstructured obsession with social gaming has actually been an obstacle keeping end-to-end e-discovery from becoming a reality in many organizations. Interviews conducted across law firms, service providers, and every major enterprise vertical indicate that the time spent protecting crops from withering and urban blight from descending upon virtual cities has left insufficient hours with which to implement next-generation electronic discovery technology. As a result, legal costs have continued to rise and the risk of sanctions has grown substantially. One Director of E-Discovery at a Fortune 100 company, when grilled about his organization’s failure to implement a robust legal hold process, pleaded, “Can you spare some Facebook credits so I can buy a chicken?”

Now, Clearwell has turned this challenge into a tremendous opportunity. In eDiscovery World, we provide an alternative to traditional social gaming that allows users to perform end-to-end e-discovery in a virtual environment – first in training mode to gain e-discovery process knowledge and experience, and then working with live documents and high-stakes cases. All stages of the e-discovery process are functional in the eDiscovery World environment, which is backed by a robust cloud computing platform able to support the largest and most complex cases. Best of all, in addition to the substantial productivity gains our beta customers have already achieved, many have even found their employees clamoring to forego significant portions of their salaries in order to earn precious Facebook credits, thus delivering dramatic cost savings for the organization.

eDiscovery World is truly a win-win, and we couldn’t be more excited about it. Enjoy!

In many ways sanctions cases are the lifeblood of the electronic discovery industry.  While the FRCP, Sedona Conference and EDRM are all out there as shining examples of what to do, it seems like more practitioners learn from the scared straight cases like Zubulake, Morgan Stanley, Pension Committee, etc.  Well, if you liked those horror stories, Philips Elecs. N. Am. Corp. v. BC Tech., may certainly keep you up at night.

In this intellectual property (IP) case with copyright infringement, misappropriation of trade secrets, and associated claims, the court entered a number of discovery orders compelling both production and preservation. The court found that, despite these orders, a proper litigation hold was not issued until 19 months after the duty to preserve arose and thousands of files were deliberately deleted from five key players’ computers. Not surprisingly, the plaintiff moved for a finding of contempt and for terminating sanctions.

In this decision, Magistrate Judge Samuel Alba goes the extra mile in his initial opinion (which was upheld on appeal) to detail the defendant’s significant errors.  While it doesn’t quite rise to the maliciousness demonstrated in Victor Stanley 2 (by the “gang that couldn’t spoliate straight”), it still provides a textbook example of “worst” practices.

To begin, Magistrate Alba cites Pension Committee for the general notion that “[c]ourts cannot and do not expect that any party can meet a standard of perfection. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party.”  Despite the early recognition that the electronic discovery process need not be perfect, he then uses most of the 48 page opinion to detail the parade of horrors committed by the defendant:

“BCT’s behavior, such as failing to timely issue a litigation hold, failing to follow up on that litigation hold, failing to request discovery documents from key employees, and so forth, reveals its intentional failure to meet discovery obligations and its flagrant disregard of the obvious great risk that it was highly probable the destruction of relevant documents would result from its behavior, and BCT’s conscious indifference to the consequences of that risk.”

Magistrate Alba honed in on the culpability analysis because terminating sanctions were being sought and the case law requires the judge to consider lesser sanctions before dismissing a case (“Because dismissal with prejudice ‘defeats altogether a litigant’s right to access to the courts,’ it should be used as ‘a weapon of last, rather than first, resort.’”).  The Defendant not surprisingly proffered a host of unpersuasive arguments about their behavior, attempting to portray many of the key player’s actions as merely inept and rogue.  Examples include:

• Employee “deleted files and folders for over 5 1/2 hours” and then started “loading five movies onto his computer” which comprised approximately twenty gigabytes of data, permanently overwriting the files recently deleted, eliminating the possibility of forensic recovery.
• Employee “deleted and intentionally wiped files from his computer” the day after Philips demanded his laptop be turned over.  He also “twice ran a Microsoft program called “’Cipher.exe’.”
• Employee deleted 97,000 files from his My Documents file, of that 41,000 were lost files covered up by AbsoluteShield (a file wiping program).

But, Magistrate Alba found the requisite scienter anyway, despite lacking express malice.  He held: “[b]ad faith, or culpability, ‘may not mean evil intent, but may simply signify responsibility and control.’” This control component was critical since the defendant attempted to convince the court that it did not have sufficient power over its employees during the legal hold and preservation process.

“BCT argues that it is not responsible for the ESI’s destruction because the executives and employees who destroyed the documents were acting individually and contrary to BCT’s express directives not to delete documents from their laptops.”

Magistrate Alba was not convinced:

“Also, other commonsense actions were not taken to preserve evidence, such as interviewing key employees, or even asking them to produce discoverable information. BCT appears to have been merely going through the motions rather than genuinely trying to preserve evidence since this method of communication was known to be unreliable and ineffective within the company; thus, BCT was not fulfilling its responsibility to diligently and thoroughly ensure that relevant documents were preserved. …  BCT’s sparse and ineffective communication with its employees does not relieve it of its responsibility of its employees’ actions in disobeying direct court orders and destroying massive numbers of electronic documents…. BCT is the party; it has the responsibility; it must follow the court’s orders. The justice system would break down if company employees could claim that they did not know about the court orders and simply disregard them.”

To further complicate the spoliation allegations, the timing of the deletions were extremely suspect (“almost all of the deletions took place a day or two before the BCT laptop computers in question were sent to be imaged”).  And, the number of the deletions were significant as well, with thousands of files that were forensically unrecoverable.

At the end of the day, the Defendants’ underlying incompetence was compounded by attempts to obscure the facts, ultimately dooming any shred of credibility.

“BCT’s dishonesty and efforts (perhaps even strategy) to hide and destroy ESI shred BCT’s credibility and reveal BCT’s overall contumacious and dishonest attitude toward this case, this court, and the system of justice. This inexcusable behavior and attitude greatly contribute to this court’s finding of bad faith. BCT must be excoriated for filing false sworn declarations, giving testimony riddled with lies and deceit, and making false representations to this court.”

These repeat offenses shut the door on any potential “do-over” with the Magistrate noting that the integrity of the judicial process cannot function when litigants so blatantly disregard their obligations.

“Civil litigation and discovery demand a level of integrity from the parties in order to properly function. When parties disregard that responsibility and/or ignore the court’s mandates, there must be strong consequences. Having examined the degree of prejudice to Philips, the interference with the judicial process, BCT’s culpability, whether BCT was warned in advance that its non-compliance may result in dismissal, and the efficacy of lesser sanctions, the court concludes that extreme sanctions are warranted in this case where discovery abuses of a serious magnitude involving bad faith and willful disregard of two direct court orders occurred.”

And, to pour further salt on the Defendant’s wound, the Magistrate recommended perjury sanctions for lying under oath:  “[I]n light of the above findings, the court recommends that this matter be referred to the United States Attorney’s Office for investigation and criminal prosecution.”

Searching for a singular takeaway amongst all the culpable behavior is a bit hard.  But certainly it is easy to point out that the Defendant’s legal hold process (and technology) was woefully behind the times.  If a litigant is going to utilize a manual, custodian based litigation hold process it needs to recognize the risks.  This isn’t to say that this type of approach won’t work, but an unsupervised process (via outside counsel) means that internal employees who may have something to hide can easily put their employer in the cross hairs, as was seen in Phillips.  Once files are destroyed, it’s not surprising to see an ensuing cover-up, and then terminating sanctions aren’t far behind.  We’ll see how many folks are scared straight by this latest horror story.

Surprisingly, a large percentage of the population has been captivated by what many characterize as a public melt down by Two and a Half Men star, Charlie Sheen. Following his well-publicized split with the show’s executive producer, Chuck Lorre, Sheen’s media interviews have been harder to avoid than cowboy hats at a Kenny Rogers concert. Regardless of whether or not you’re a pop-media junkie, fan of Two and a Half Men, or completely disinterested in the entire saga, it’s clear that many of Mr. Sheen’s ramblings have stirred controversy.

What do all Mr. Sheen’s seemingly random musings mean? Has he lost his mind? Is he pulling the wool over the eyes of the media by flawlessly executing the biggest Hollywood hoax in history? Maybe, just maybe, Mr. Sheen is a stealth e-discovery expert, secretly providing the legal community with a guide for handling litigation. Don’t agree? Well, maybe you’ll be a believer after reading my interpretation of how some of Mr. Sheen’s most popular quotes can serve as an e-discovery 101 guidebook.

“It was so gnarly I can’t remember.”

It’s hard to remember that the first Zubulake decision was penned by Judge Scheindlin long ago in 2003, but the gnarly $29.2 million jury verdict against UBS Warburg by a single plaintiff, in a fairly routine employment lawsuit, is one that most legal departments in Corporate America won’t soon forget.[1] Many industry experts feel the jury’s massive verdict could have been avoided if it wasn’t for repeated electronic discovery errors that resulted in the jury receiving an adverse jury instruction about UBS Warburg’s failure to produce emails. Eight years later, the incredible growth of electronic information continues to present e-discovery challenges for organizations, even though clearer guidelines have evolved.

“Sorry man, didn’t make the rules.”

Prior to Zubulake, the Federal Rules of Civil Procedure (FRCP) did not squarely address the unique challenges of electronic evidence. Although she didn’t actually make the rules, Judge Scheindlin served as a member of the committee that helped draft the 2006 amendments to the FRCP. The amendments address many electronic evidence challenges faced by legal departments, and topics such as data sampling, proportionality, and data accessibility that were tackled in Zubulake, ultimately made their way into the notes or text of the amendments.

The amendments seek to minimize discovery disputes and provide clarity by, among other things, requiring parties to “discuss any issues about preserving discoverable information” and by outlining a protocol for dealing with electronically stored information (ESI) characterized as “not reasonably accessible because of undue burden or cost.”[2] Despite these guidelines, the rules are not always bright line instructions so the conduct of the parties is typically evaluated based on “reasonableness” standards when a discovery dispute arises. Some are lobbying for further clarification regarding issues such as when the duty to preserve electronic evidence is triggered and there seems to be a movement afoot that could lead to additional Rule amendments as evidenced by last year’s Civil Litigation Review Conference at Duke University.[3]

“Your perimeter’s been breached.  You got work to do bro.”

No lawyer wants to be responsible for having the organization’s perimeter breached as a result of data spoliation. However, failing to take proper data preservation steps continues to be the number one reason organization’s face e-discovery sanctions.[4] In Zubulake IV, Judge Scheindlin explained that an organization has work to do when it “reasonably anticipates” litigation since the anticipation of litigation is enough to trigger counsel’s duty to issue a litigation hold notice to employees.[5] The duty is easy to understand, but determining the “triggering” event and the best approach for preserving data can be challenging. To minimize the risk of spoliation, many organizations are moving away from using email notifications and spreadsheets to track when, who, how, and why employees are notified of a litigation hold in favor of more automated solutions and repeatable workflows. Automated solutions allow notices, reminders, and surveys to be created with easy-to-use templates and the “reasonableness” of the entire litigation hold process can be illustrated since reports can be automatically generated with the click of a button.

“I’ve got tiger blood and Adonis DNA”

Although the line between “reasonable” and “unreasonable” conduct can be very blurry in some cases, in other situations the offending party simply chooses to flagrantly disregard the rules as if they have tiger blood and Adonis DNA. For example, in Daylight, LLC v. Mobilight Inc., the Utah Appellate court upheld the lower court’s entry of a default judgment after defendants threw a laptop off a building, ran it over with a vehicle and stated: “if this gets us into trouble, I hope we’re prison buddies.”[6] Uh, sorry Charlie….

Typically, most parties are not so cavalier about disregarding their legal obligations and the judge’s decision to issue sanctions when evidence is lost or deleted is not a slam dunk. One challenge is that the 2006 FRCP Amendments allow litigants to request any “Electronically Stored Information” stored in “any medium” that is reasonably calculated to lead to the discovery of admissible evidence.[7] That means the scope of the duty to preserve, collect, and produce information as part of litigation may be very broad and very complicated, even though data growth continues to increase exponentially and corporate information technology systems continue to become increasingly complex.

To meet these burdens, many organizations are demanding technology solutions that do more than manage the legal hold process because they also need to collect, analyze, and review ESI to evaluate the case. The holy grail of e-discovery is being able to leverage a single technology solution to manage all these tasks as well as the litigation hold process. The value is twofold. First, automating e-discovery steps related to preservation and collection that have traditionally been managed manually minimizes the risk of human error and makes it easier to demonstrate a repeatable process that is defensible. Second, using the same technology solution to filter, analyze, and review key documents faster results in significant cost savings and strategic advantages.

“You make a choice to win, and you win”

Despite the fact that organizations continue to make e-discovery mistakes, smart organizations choose to leverage a combination of repeatable workflows and legal technology solutions to help them win. Although the new technological era we live in has created new discovery challenges, legal technology can be used to streamline data preservation, collection, processing, and review. Legal technology can also be used to quickly find important documentary evidence earlier in the case, thereby resulting in strategic advantages so smart organizations can “just keep winning.”

[2] See Fed. R. Civ. P. 26(f)(2) and Fed. R. Civ. P. 26(b)(2)

[3] John G. Koeltl, 2010 Civil Litigation Review Conference Introduction: Progress in the Spirit of Rule 1, 60 Duke L.J. 537 (2010).

[4] See Dan H. Willoughby, Jr., Rose Hunter Jones, and Gregory R. Antine, SANCTIONS FOR E-DISCOVERY VIOLATIONS: BY THE NUMBERS, 60 Duke L.J. 789 (2010), at 803 stating (“FAILURE TO PRESERVE ESI IS THE MOST PREVALENT SANCTIONABLE CONDUCT”

[5] Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)

[6] Daylight, LLC v. Mobilight Inc., 2011 UT App. 28 (2011)

[7] Fed. R. Civ. P. 34(a)(1)(A).