e-discovery 2.0

Symantec today issued the findings of its second annual Information Retention and eDiscovery Survey, which examined how enterprises are coping with the tsunami of electronically stored information (ESI) that we see expanding by the minute.  Perhaps counter intuitively, the survey of legal and IT personnel at 2,000 enterprises found that email is no longer the primary source of ESI companies produced in response to eDiscovery requests.  In fact, email came in third place (58%) to files/documents (67%) and database/application data (61%).  Marking a departure from the landscape as recently as a few years ago, the survey reveals that email does not axiomatically equal eDiscovery any longer.

Some may react incredulously to these results. For instance, noted eDiscovery expert Ralph Losey continues to stress the paramount importance of email: “In the world of employment litigation it is all about email and attachments and other informal communications. That is not to say databases aren’t also sometimes important. They can be, especially in class actions. But, the focus of eDiscovery remains squarely on email.”   While it’s hard to argue with Ralph, the real takeaway should be less about the relative descent of email’s importance, and more about the ascendency of other data types (including social media), which now have an unquestioned seat at the table.

The primary ramification is that organizations need to prepare for eDiscovery and governmental inquires by casting a wider ESI net, including social media, cloud data, instant messaging and structured data systems.  Forward-thinking companies should map out where all ESI resides company-wide so that these important sources do not go unrecognized.  Once these sources of potentially responsive ESI are accounted for, the right eDiscovery tools need to be deployed so that these disparate types of ESI can be defensibly collected and processed for review in a singular, efficient and auditable environment.

The survey also found that companies which employ best practices such as implementing information retention plans, automating the enforcement of legal holds and leveraging archiving tools instead of relying on backups, fare dramatically better when it comes to responding to eDiscovery requests. Companies in the survey with good information governance hygiene were:

• 81% more likely to have a formal retention plan in place
• 63% more likely to automate legal holds
• 50% more likely to use a formal archiving tool

These top-tier companies in the survey were able to respond much faster and more successfully to an eDiscovery request, often suffering fewer negative consequences:

• 78% less likely to be sanctioned
• 47% less likely to lead to a compromised legal position
• 45% less likely to disclose too much information

This last bullet (disclosing too much information) has a number of negative ramifications beyond just giving the opposition more ammo than is strictly necessary.  Since much of the eDiscovery process is volume-based, particularly the eyes-on review component, every extra gigabyte of produced information costs the organization in both seen and unseen ways.  Some have estimated that it costs between $3-5 a document for manual attorney review – and at 50,000 pages to a gigabyte, these data-related expenses can really add up quickly.

On the other side of the coin, there were those companies with bad information governance hygiene.  While this isn’t terribly surprising, it is shocking to see how many entities fail to connect the dots between information governance and risk reduction.  Despite the numerous risks, the survey found nearly half of the respondents did not have an information retention plan in place, and of this group, only 30% were discussing how to do so.  Most shockingly, 14% appear to be ostriches with their heads in the sand and have no plans to implement any retention plan whatsoever.  When asked why folks weren’t taking action, respondents indicated lack of need (41%), too costly (38%), nobody has been chartered with that responsibility (27%), don’t have time (26%) and lack of expertise (21%) as top reasons.  While I get the cost issue, particularly in these tough economic times, it’s bewildering to think that so many companies feel immune from the requirements of having even a basic retention plan.

As the saying goes, “You don’t need to be a weatherman to tell which way the wind blows.”  And, the winds of change are upon us.  Treating eDiscovery as a repeatable business process isn’t a Herculean task, but it is one that cannot be accomplished without good information governance hygiene and the profound recognition that email isn’t the only game in town.

For more information regarding good records management hygiene, check out this informative video blog and Contoural article.

Next week, as most of you know, is the Superbowl of legal technology events.  And, so if this is a newsflash, you’ve probably found this blog by searching for the European Cockpit Association (“ECA”).  If on the other hand you have an unnatural affinity for the other ECA – early case assessment — then you’ve probably been planning to head to this year’s LegalTech show immediately after the last one ended.

For fear of gratuitous self promotion, I will be moderating several panels with e-discovery pundits on the first day. Akin to the upcoming Superbowl, these “Supersessions” will be chockablock with EDD luminaries and it’ll be all I can do to get a word in edgewise.  Below is the schedule. Feel free to pre-register since we expect a packed house.

1:00 – 2:00 pm: The E-Discovery Expert Panel.  This session will discuss best practices in e-discovery. Panelists include:

• Jay Brudz, senior counsel, legal technology at GE;
• Ron Best, director of legal information systems at Munger, Tolles and Olson, LLP, and
• Brian Hill, senior analyst at Forrester Research, Inc.

2:15 – 3:15 pm: Strategies for Transparency and Cooperation in E-Discovery. This session will discuss how to move toward a more cooperative resolution of legal disputes.  Speakers include:

• Sean Gallagher, partner at Hogan & Hartson, LLP and
• Lauren Schwartzreich, associate at Outten and Golden, LLP

3:30 – 4:30 pm: Ask the E-Discovery Doctors. The “doctors” will take questions from the audience and provide their prescriptions for a wide-range of e-discovery topics.

• Craig Ball, attorney and president, Craig D. Ball, P.C.
• Ralph Losey, attorney and co-chair of E-Discovery Practice Group, Akerman Senterfitt,
• George Socha, attorney and president, Socha Consulting, LLC

While it’s probably not fair to pick a favorite session, my sense is that the last one will be the most anarchical, chaotic, and stimulating, assuming that the speakers don’t take the faux Doctor thing too far (yes, they will be in scrubs).

Please come by to get your recommended daily dose of e-discovery insights.

Learn More On Electronic Discovery Litigation.

In continuing my Five e-Discovery Questions series, I had the pleasure of sitting down with and interviewing (ok, e-mailing five questions to) Ralph Losey, electronic discovery expert extraordinaire.

Ralph is the writer, lawyer, and educator behind the e-Discovery Team blog. He has been practicing law since 1980 and playing with computers and cyber-communications since 1978. He holds the highest AV peer rating by Martindale Hubbell and is identified as a SuperLawyer in the field of IT.

The questions I posed to Ralph were:

1. We have always loved the name of your Blog -”e-Discovery Team.” It succinctly sums up your overall approach and philosophy of e-discovery. What’s the current state of the “e-discovery team” in most organizations? How has it progressed over the last few years? Where does it need to go to next?

2. Should there be an adverse inference distinction between cases where e-discovery may have been conducted in a sloppy, incomplete fashion, but without malice, versus one in which the party actively sought to hide or suppress documents in the case?

3. Are judges equipped with enough information to be able to make this distinction (between intentional and accidental destruction)?

4. What is the biggest gap today between e-discovery vendor offerings and what legal end-users need?

5. How much time does it really take you to crank out one of your blog posts? Does the hot Florida sun keep you indoors typing away at your computer? Or do you have some sort of waterproof laptop that allows you to write while floating in your screened in pool?

To read Ralph Losey’s answers and more, read the full version (complete with all cinematic references in video) at his e-Discovery Team blog article, “Five Easy Pieces – An Interview Without Toast.”

Ralph Losey, never one to mince words, recently analyzed a recent litigation survey from the elite Fellows of the American College of Trial Lawyers. The survey highlights the fact that one of the main problems facing the U.S. legal system today is (surprise!) e-discovery. Also (not) a surprise is that the study “places the blame squarely on poor rules, bad law, and judges”, while overlooking the role that lawyers play in the problem.

In his analysis, Ralph makes a number of insightful observations that should help lawyers move from being e-discovery troublemakers to being part of the solution. However, one of his key critiques is targeted not at lawyers but rather at the vendor community: “[E-discovery] is too expensive because lawyers and judges do not know what they are doing, and do not know how to properly cull and review email, and because clients are disorganized pack-rats. Many of the e-discovery vendors are also misinformed, but often they do know better; they just have no pecuniary interest in aggressive culling. Some may even seek to line their own pockets in inflated discoveries.”

As Ralph bluntly points out, pecuniary interests (translation: money) plays a big role here, but so does risk reduction. Imagine you’re given the opportunity to process a 2 terabyte case all the way through to review. With the “funnel” of e-discovery costs placing the highest dollar per gigabyte value on the end of the process (i.e. review), what’s your incentive to cull aggressively at the beginning? Not much from a revenue perspective, certainly, but also not much from a risk perspective: particularly when you have sanctions and lawsuits on your mind and are thinking about the potential liability that you incur by excluding potentially relevant documents by using too broad a brush (or pair of garden clippers) in your pruning.

How do we move forward? As document volumes continue to grow, it’s clear that aggressive culling (with a few caveats which we’ll get to in a minute) is a critical tool for managing costs and improving case outcomes (let’s go out on a limb and define “improving” as producing fairer and more equitable rulings). However, in order to adopt more aggressive culling as a standard part of the electronic discovery process, the community has to come to terms with three things:

• The Myth of Perfection: There may be perfect abs, but there is no perfect e-discovery. Organizations like the E-Discovery Institute are doing fantastic work to measure and improve the accuracy of electronic discovery efforts, but in the end it’s tough to make the argument that having 100 contract attorneys manually reviewing 10 million documents will necessarily produce a better overall e-discovery outcome than  10 specialized attorneys reviewing 200,000 documents that were aggressively (but thoughtfully) culled from initial 10 million document set. There simply is no black and white set of rules that will lead to a perfect process.
• The Benefit of Cost Control: Given that, it is in the best interest of everyone involved (yes, even vendors) to choose the most cost-effective process that provides a high likelihood of producing the information relevant to the case.  This means “saving your bullets” by not spending all of your e-discovery dollars up front in a case pursing the perfection myth, but instead approaching discovery in an incremental fashion which can adapt to changing facts and circumstances as the matter unfolds. How, you may ask, do vendors benefit? They can become more strategic e-discovery advisors by working with counsel over the full lifecycle of a case, providing higher-value (and, by the way, more interesting and intellectually challenging) consulting services to help incrementally adjust and adapt the course of e-discovery. As Ralph puts it: “…Trial lawyers should accept that specialists in the field of e-discovery are a necessary evil. If an e-discovery specialist knows the field, they can save you money and take you out of the e-discovery morass faster and more reliably than a dozen new rules. The world today is too complex for one man or woman to do it all.”
• The Value of Defensibility: Many of you likely winced at the term “high likelihood” in the previous point. “Sacrilege!” you cried. “I demand certainty!” First, go back and re-read the first point about the Myth of Perfection. Then, consider that a better way forward may be an approach to e-discovery that involves more aggressive culling early in the process to focus on the most important documents first, more iterations to adapt to changing facts and circumstances, and, all along the way, a complete audit trail that provides defensibility in the event that any aspect of the process is ever questioned. Such defensibility would include specific documentation about the culling decisions that were made, down to the keyword and “sub-keyword” (i.e. wildcard expansion) level, so all the cards are on the table for everyone to see.  The value of defensibility when performing aggressive culling is enormous, in that it adds an additional measure of safety and trust to the process, minimizing the amount of doubt and second-guessing that so often plagues e-discovery negotiations.

By coming to terms with the fundamental imperfections of the e-discovery process and embracing the promise of lower costs and the agility and responsiveness that can be gained with a more iterative approach, everyone stands to gain from the safe and controlled adoption of aggressive culling – yes, even the vendors (at least the smart ones) and their ever-present pecuniary interests.