24h-payday

Posts Tagged ‘data retention’

Breaking News: Over $12 million in Attorney Fees Awarded in Patent Case Involving Predictive Coding

Thursday, February 14th, 2013

A federal judge for the Southern District of California rang in the month of February by ordering plaintiffs in a patent related case to pay a whopping $12 million in attorney fees. The award included more than $2.8 million in “computer assisted” review fees and to add insult to injury, the judge tacked on an additional $64,316.50 in Rule 11 sanctions against defendants’ local counsel. Plaintiffs filed a notice of appeal on February 13th, but regardless of the final outcome, the case is chock-full of important lessons about patent litigation, eDiscovery and the use of predictive coding technology.

The Lawsuit

In Gabriel Technologies Corp. v. Qualcomm Inc., plaintiffs filed a lawsuit seeking over $1 billion in damages. Among its eleven causes of action were claims for patent infringement and misappropriation of trade secrets.  The Court eventually dismissed or granted summary judgment in defendants’ favor as to all of plaintiffs’ claims making defendants the prevailing party and prompting Defendants’ subsequent request for attorneys’ fees.

In response to defendants’ motion for attorney fees, U. S. District Judge Anthony J. Battaglia relied on plaintiffs’ repeated email references to “the utter lack of a case” and their inability to identify the alleged patent inventors to support his finding that their claims were brought in “subjective bad faith” and were “objectively baseless.” Given these findings, Judge Battaglia determined that an award of attorney fees was warranted.

The Attorney Fees Award

The judge then turned to the issue of whether or not defendants’ fee request for $13,465,331.01 was reasonable. He began by considering how defendants itemized their fees which were broken down as follows:

  • $10,244,053 for its outside counsel Cooley LLP (“Cooley”);
  • $391,928.91 for document review performed by Black Letter Discovery, Inc. (“Black Letter”); and
  • $2,829,349.10 for a document review algorithm generated by outside vendor H5.

The court also considered defendants’ request that plaintiffs’ local counsel be held jointly and severally liable for the entire fee award based on the premise that local counsel is required to certify that all pleadings are legally tenable and “well-grounded in fact” under Federal Rule of Civil Procedure 11.

Following a brief analysis, Judge Battaglia found the overall request “reasonable,” but reduced the fee award by $1 million. In lieu of holding local counsel jointly liable, the court chose to sanction local counsel in the amount of $64,316.50 (identical to the amount of local counsel’s fees) for failing to “undertake a reasonable investigation into the merits of the case.”

Three Lessons Learned

The case is important on many fronts. First, the decision makes clear that filing baseless patent claims can lead to financial consequences more severe than many lawyers might expect. If reviewed and upheld on appeal, counsel in the Ninth Circuit accustomed to fending off unsubstantiated patent or misappropriation claims will be armed with an important new tool to ward off would-be patent trolls.

Second, Judge Battaglia’s decision to order Rule 11 sanctions should serve as a wake-up call for local counsel. The ruling reinforces the fact that merely rubber-stamping filings and passively monitoring cases is a risky proposition. Gabriel Technologies illustrates the importance of properly monitoring lead counsel and the consequences of not complying with the mandate of Rule 11 whether serving as lead or local counsel.

The final lesson relates to curbing the costs of eDiscovery and the importance of understanding tools like predictive coding technology. The court left the barn door wide open for plaintiffs to attack defendants’ predictive coding and other fees as “unreasonable,” but plaintiffs didn’t bite. In evaluating H5’s costs, the court determined that Cooley’s review fees were reasonable because Cooley used H5’s “computer-assisted” review services to apparently cull down 12 million documents to a more reasonable number of documents prior to manual review. Although one would expect this approach to be less expensive than paying attorneys to review all 12 million documents, $2,829,349.10 is still an extremely high price to pay for technology that is expected to help cut traditional document review costs by as much as 90 percent.

Plaintiffs were well-positioned to argue that predictive coding technology should be far less expensive because the technology allows a fraction of documents to be reviewed at a fraction of the cost compared to traditional manual review. These savings are possible because a computer is used to evaluate how human reviewers categorize a small subset of documents in order to construct and apply an algorithm that ranks the remaining documents by degree of responsiveness automatically. There are many tools on the market that vary drastically in quality and price, but a price tag approaching $3 million is extravagant and should certainly raise a few eyebrows in today’s predictive coding market. Whether or not plaintiffs missed an opportunity to challenge the reasonableness of defendants’ document review approach may never be known. Stay tuned to see if these and other arguments surface on appeal.

Q&A with Allison Walton of Symantec and Laura Zubulake, Author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice

Monday, February 4th, 2013

The following is my Q&A with Laura Zubulake, Author of Zubulake’s e-Discovery: The Untold Story of my Quest for Justice.

Q: Given your case began in 2003, and the state of information governance today, do you believe that adoption to has been too slow? Do you think organizations in 2013, ten years later, have come far enough in managing their information?

A: From a technology standpoint, the advancements have been significant. The IT industry has come a long way with regard to the tools available to conduct eDiscovery. Alternatively, surveys indicate a significant percentage of organizations do not prioritize information management and have not established eDiscovery policies and procedures. This is disappointing. The fact that organizations apparently do not understand the value of proactively managing information only puts them at a competitive disadvantage and at increased risk.

 Q: Gartner predicts that the market will be $2.9 billion by 2017. Given this prediction, don’t you think eDiscovery is basically going to be absorbed as a business process and not something so distinct as to require outside 3rd party help? 

A: First, as a former financial executive those predictions, if realized, are reasonably attractive. Any business that can generate double-digit revenue growth until 2017, in this economy and interest rate environment, is worthy of note (assuming costs are controlled). Second, here I would like to distinguish between information governance and eDiscovery. I view eDiscovery as a subset of a broader information governance effort. My case while renowned for eDiscovery, at its essence, was about information. I insisted on searching for electronic documents because I understood the value and purpose of information. I could not make strategic decisions without, what I refer to as, “full” information. The Zubulake opinions were a result of my desire for information, not the other way around. I believe corporations will increasingly recognize the need to proactively manage information for business, cost, legal, and risk purposes. As such, I think information governance will become more of a business process, just like any management, operational, product, and finance process.

With regard to eDiscovery, I think there will continue to be a market for outside third-party assistance. eDiscovery requires specific skills and technologies. Companies lacking financial resources and expertise, and requiring assistance to address the volume of data will likely deem it economical to outsource eDiscovery efforts. As with any industry, eDiscovery will evolve.  The sector has grown quickly. There will be consolidation. Eventually, the fittest will survive.

Q: What do you think about the proposed changes to the FRCP regarding preservation? 

A: As a former plaintiff (non-attorney), eDiscovery was (to me) about preservation. Very simply, documents could not be collected, reviewed, and produced if they had not been preserved. Any effort to clarify preservation rules would benefit all parties—uncertainty created challenges. Of course, there needs to be a balance between overwhelming corporations with legal requirements and costs versus protecting a party’s rights to evidence. Apparently, the current proposals do not specifically pertain to preservation. They concern the scope of discovery and proportionality and thus indirectly address the issue of preservation. While this would be helpful, it is not ideal. Scope is, in part, a function of relevance – a frequently debated concept. What was relevant to me might not have been relevant to others. Regarding proportionality, my concern is perspective.  Too often I find discussions about proportionality, stem from the defendant’s perspective. Rarely, do I hear the viewpoint of the plaintiff represented. Although not all plaintiffs are individuals, often the plaintiff is the relatively under-resourced party. Deciding whether the burden of proposed discovery outweighs its likely benefits is not a science. As I wrote in my book:

Imagine if the Court were to have agreed with [the Defendant’s] argument and determined the burden of expense of the proposed discovery in my case outweighed its likely benefit. Not only would the Zubulake opinions not have come to fruition, but also I would have been denied my opportunity to prove my claims. 

Q: Lastly, what other trends are you see in in the area of eDiscovery and what predictions do you have for the market in 2013? 

A: eDiscovery Morphs. Organizations will realize that eDiscovery should be part of a broader information governance effort. Information governance will become a division within a corporation with separate accountable management from which operations, legal, IT, and HR professionals can source and utilize information to achieve goals. Financial markets will increasingly reward companies (with higher multiples) who proactively manage information.

Reorganization. Organizations will recognize while information is their most valuable asset it is fearless— crossing functions, divisions, borders and not caring if it overwhelms an entity with volume, costs, and risks. Organizational structures will need to adapt and accommodate the ubiquitous nature of information. A systems thinking framework (understanding how processes influence one another within a whole) will increasingly replace a business silo structure. Information and communication managed proactively and globally, will improve efficiency, enhance profitability, reduces costs, increase compliance, and mitigate risks.

Search. Algorithms become an accepted search tool. Although keyword, concept, cluster, etc. searches will still play a role. For years, law enforcement, government, and Wall Street have used algorithms—the concept is not new and not without peril (significant market corrections were the result of algorithms gone wrong). Parties confronted with volumes of data and limited resources will have no choice but to agree to computer assistance. However, negative perceptions and concerns about algorithms will only change when there is a case where the parties initiate and voluntarily agree to their use.

Education. Within information governance efforts, organizations will increasingly establish training for employees. Employees need to be educated about the origination, maintenance, use, disposal, risks, rules, and regulations associated with ESI. A goal should be to lessen the growth of data and encourage smart and efficient communications. Education is a cost-control and risk-mitigating effort.

BYOD Reconsidered. Thinking a BYOD to work policy is cost-effective will be questioned and should be evaluated on a risk-adjusted basis. When companies analyze the costs (cash outlay) of providing employees with devices versus the unquantifiable costs associated with the lack of control, disorganization, and increased risks – it will become clear BYOD has the potential to be very expensive.

Government Focus. I had the privilege of addressing the Dept. of Justice’s Civil E-Discovery training program. It was evident to me that eDiscovery is one of the department’s focuses. With recent headlines concerning emails uncovering evidence (e.g. Fast and Furious), government entities (state and federal) will increasingly adopt rules, procedures, and training to address ESI. This brings me back to your first question—have organizations come far enough in managing their information? Government efforts to focus on eDiscovery will incentivize more corporations to (finally) address eDiscovery and information governance challenges.

Stay tuned for more breaking news coverage with industry luminaries.

For Westerners Seeking Discovery From China, Fortune Cookie Reads: Discovery is Uncertain, and Will Likely Be Hard

Monday, January 7th, 2013

In a recent Inside Counsel article, we explored the eDiscovery climate in China and some of the most important differences between the Chinese and U.S. legal systems. There is an increased interest in China and the legal considerations surrounding doing business with Chinese organizations, which we also covered on this Inside Counsel webcast.

 Five highlights from this series include:

1.  Conflicting Corporate Cultures- In general, business in China is done in a way that relies heavily on relationships. This can easily cause a conflict of interest for organizations and put them at risk for violations under the FCPA and UK Bribery Act. The concept that “relationships are gold” or Guanxi is crucial to conducting successful business in China. However, a fine line exists for organizations, necessitating a need for strong local counsel and guidance. Moreover, Chinese businesses don’t share the same definitions the Western world does for concepts like: information governance, legal hold or privacy.

 2.   FCPA and the UK Bribery Act- Both of these regulations are very troublesome for those doing business in China, yet necessary for regulating white-collar crime. In order to do business in China one must walk a fine line developing close relationships, without going too far and participating in bribery or other illegal acts. There are increased levels of prosecution under both of these statutes as businesses globalize.

3.  Drastically Different Legal Systems- The Chinese legal system is very different than those of common law jurisdictions. China’s legal system is based on civil law and there is no requirement for formal pre-litigation discovery. For this reason, litigants may find it very difficult to successfully procure discovery from Chinese parties. Chinese companies have been historically slow to cooperate with U.S. regulatory bodies and many discovery requests in civil litigation can take up to a year for a response. A copy of our eDiscovery passport on China can be found here, along with other important countries.

4.  State Secrets- In addition to the differences between common and civil law jurisdictions, China has strict laws protecting state secrets. Anything deemed a state secret would not be discoverable, and an attempt to remove state secrets from China could result in criminal prosecution. The definition of a state secret under People’s Republic of China law includes a wide range of information and is more ambiguous than Western definitions about national security (for example, the Chinese definitions are less defined than those in the U.S. Patriot Act). Politically sensitive data is susceptible to the government’s scrutiny and protection, regardless of whether it is possessed by PRC citizens or officials working for foreign corporations- there is no distinction or exception for civil discovery.

5.  Globalization- Finally, it is no secret that the world has become one huge marketplace. The rapid proliferation of information creation as well as the clashing of disparate legal systems creates real discovery challenges. However, there are also abundant opportunities for lawyers that become specialized in the Asia Pacific region today. Lawyers that are particularly adept in eDiscovery and Asia will flourish for years to come.

For more, read here…

Legal Tech 2013 Sessions: Symantec explores eDiscovery beyond the EDRM

Wednesday, December 19th, 2012

Having previously predicted the ‘happenings-to-be’ as well as recommended the ‘what not to do’ at LegalTech New York, the veteran LTNY team here at Symantec has decided to build anticipation for the 2013 event via a video series starring the LTNY un-baptized associate.  Get introduced to our eDiscovery-challenged protagonist in the first of our videos (above).

As for this year’s show we’re pleased to expand our presence and are very excited to introduce eDiscovery without limits, along with a LegalTech that promises sessions, social events and opportunities for attendees in the same vein.   In regards to the first aspect – the sessions – the team of Symantec eDiscovery counsels will moderate panelist sessions on topics ranging across and beyond the EDRM.  Joined by distinguished industry representatives they’ll push the discussion deeper in 5 sessions with a potential 6 hours of CLE credits offered to the attendees.

Matt Nelson, resident author of Predictive Coding for Dummies will moderate “How good is your predictive coding poker face?” where panelists tackle the recently controversial subjects of disclosing the use of Predictive Coding technology, statistical sampling and the production of training sets to the opposition.

Allison Walton will moderate, “eDiscovery in 3D: The New Generation of Early Case Assessment Techniques” where panelists will enlighten the crowd on taking ECA upstream into the information creation and retention stages and implementing an executable information governance workflow.  Allison will also moderate “You’re Doing it Wrong!!! How To Avoid Discovery Sanctions Due to a Flawed Legal Hold Process” where panelists recommend best practices towards a defensible legal hold process in light of potential changes in the FRCP and increased judicial scrutiny of preservation efforts.

Phil Favro will moderate “Protecting Your ESI Blindside: Why a “Defensible Deletion” Offense is the Best eDiscovery Defense” where panelists debate the viability of defensible deletion in the enterprise, the related court decisions to consider and quantifying the ROI to support a deletion strategy.

Chris Talbott will moderate a session on “Bringing eDiscovery back to Basics with the Clearwell eDiscovery Platform”, where engineer Anna Simpson will demonstrate Clearwell technology in the context of our panelist’s everyday use on cases ranging from FCPA inquires to IP litigation.

Please browse our microsite for complete supersession descriptions and a look at Symantec’s LTNY 2013 presence.  We hope you stay tuned to eDiscovery 2.0 throughout January to hear what Symantec has planned for the plenary session, our special event, contest giveaways and product announcements.

Symantec Positioned Highest in Execution and Vision in Gartner Archiving MQ

Tuesday, December 18th, 2012

Once again Gartner has named Symantec as a leader in the Enterprise Information Archiving magic quadrant.  We’ve continued to invest significantly in this market and it is gratifying to see the recognition for the continued effort we put into archiving both in the cloud and on premises with our Enterprise Vault.cloud and Enterprise Vault products. Symantec has now been rated a leader 9 years in a row.

 

This graphic was published by Gartner, Inc. as part of a larger research document and should be evaluated in the context of the entire document. The Gartner document is available upon request from Symantec.

Gartner does not endorse any vendor, product or service depicted in the Magic Quadrant, and does not advise technology users to select only those vendors with the highest ratings. Gartner research publications consist of the opinions of Gartner’s research organization and should not be construed as statements of fact. Gartner disclaims all warranties, expressed or implied, with respect to this research, including any warranties of merchantability or fitness for a particular purpose.

 This year marks a transition in a couple of regards.  We are seeing an acceleration of customers looking for the convenience and simplicity of SaaS based archiving solution. The caveat being that they want the security and trust that only a vendor like Symantec can deliver.

Similarly the market has continued to ask for integrated solutions that deliver information archiving and eDiscovery to quickly address often complex and time sensitive process of litigation and regulatory requests.  The deep integration we offer between our archiving solutions – Enterprise Vault and Enterprise Vault.cloud – and the Clearwell eDiscovery Platform has led many customers to deploy these together to streamline their eDiscovery workflow.

An archive is inherently deployed with the long term in mind.  Over the history of Gartner’s Enterprise Information Archiving MQ, only Symantec has provided a consistent solution to customers by investing and innovating with Enterprise Vault to lead the industry in performance, functionality, and support without painful migrations or changes. 

We’re excited about what we have planned next for Enterprise Vault and Enterprise Vault.cloud and intend to maintain our leadership in the years to come. Our customers will continue to be able to manage their critical information assets and meet their needs for eDiscovery and Information Governance as we improve our products year after year.

Spotlighting the Top Electronic Discovery Cases from 2012

Friday, December 14th, 2012

With the New Year quickly approaching, it is worth reflecting on some of the key eDiscovery developments that have occurred during 2012. While legislative, regulatory and rulemaking bodies have undoubtedly impacted eDiscovery, the judiciary has once again played the most dramatic role.  There are several lessons from the top 2012 court cases that, if followed, will likely help organizations reduce the costs and risks associated with eDiscovery. These cases also spotlight the expectations that courts will likely have for organizations in 2013 and beyond.

Implementing a Defensible Deletion Strategy

Case: Brigham Young University v. Pfizer, 282 F.R.D. 566 (D. Utah 2012)

In Brigham Young, the plaintiff university had pressed for sanctions as a result of Pfizer’s destruction of key documents pursuant to its information retention policies. The court rejected that argument because such a position failed to appreciate the basic workings of a valid corporate retention schedule. As the court reasoned, “[e]vidence may simply be discarded as a result of good faith business procedures.” When those procedures operate to inadvertently destroy evidence before the duty to preserve is triggered, the court held that sanctions should not issue: “The Federal Rules protect from sanctions those who lack control over the requested materials or who have discarded them as a result of good faith business procedures.”

Summary: The Brigham Young case is significant since it emphasizes that organizations should implement a defensible deletion strategy to rid themselves of data stockpiles. Absent a preservation duty or other exceptional circumstances, organizations that pare back ESI pursuant to “good faith business procedures” (such as a neutral retention policy) will be protected from sanctions.

**Another Must-Read Case: Danny Lynn Elec. v. Veolia Es Solid Waste (M.D. Ala. Mar. 9, 2012)

Issuing a Timely and Comprehensive Litigation Hold

Case: Apple, Inc. v. Samsung Electronics Co., Ltd, — F. Supp. 2d. — (N.D. Cal. 2012)

Summary: The court first issued an adverse inference instruction against Samsung to address spoliation charges brought by Apple. In particular, the court faulted Samsung for failing to circulate a comprehensive litigation hold instruction when it first anticipated litigation. This eventually culminated in the loss of emails from several key Samsung custodians, inviting the court’s adverse inference sanction.

Ironically, however, Apple was subsequently sanctioned for failing to issue a proper hold notice. Just like Samsung, Apple failed to distribute a hold until several months after litigation was reasonably foreseeable. The tardy hold instruction, coupled with evidence suggesting that Apple employees were “encouraged to keep the size of their email accounts below certain limits,” ultimately led the court to conclude that Apple destroyed documents after its preservation duty ripened.

The Lesson for 2013: The Apple case underscores the importance of issuing a timely and comprehensive litigation hold notice. For organizations, this likely means identifying the key players and data sources that may have relevant information and then distributing an intelligible hold instruction. It may also require suspending aspects of information retention policies to preserve relevant ESI. By following these best practices, organizations can better avoid the sanctions bogeyman that haunts so many litigants in eDiscovery.

**Another Must-Read Case: Chin v. Port Authority of New York, 685 F.3d 135 (2nd Cir. 2012)

Judicial Approval of Predictive Coding

Case: Da Silva Moore v. Publicis Groupe, — F.R.D. — (S.D.N.Y. Feb. 24, 2012)

Summary: The court entered an order that turned out to be the first of its kind: approving the use of predictive coding technology in the discovery phase of litigation. That order was entered pursuant to the parties’ stipulation, which provided that defendant MSL Group could use predictive coding in connection with its obligation to produce relevant documents. Pursuant to that order, the parties methodically (yet at times acrimoniously) worked over several months to fine tune the originally developed protocol to better ensure the production of relevant documents by defendant MSL.

The Lesson for 2013: The court declared in its order that predictive coding “is an acceptable way to search for relevant ESI in appropriate cases.” Nevertheless, the court also made clear that this technology is not the exclusive method now for conducting document review. Instead, predictive coding should be viewed as one of many different types of tools that often can and should be used together.

**Another Must-Read Case: In Re: Actos (Pioglitazone) Prods. Liab. Litig. (W.D. La. July 10, 2012)

Proportionality and Cooperation are Inextricably Intertwined

Case: Pippins v. KPMG LLP, 279 F.R.D. 245 (S.D.N.Y. 2012)

Summary: The court ordered the defendant accounting firm (KPMG) to preserve thousands of employee hard drives. The firm had argued that the high cost of preserving the drives was disproportionate to the value of the ESI stored on the drives. Instead of preserving all of the drives, the firm hoped to maintain a reduced sample, asserting that the ESI on the sample drives would satisfy the evidentiary demands of the plaintiffs’ class action claims.

The court rejected the proportionality argument primarily because the firm refused to permit plaintiffs or the court to analyze the ESI found on the drives. Without any transparency into the contents of the drives, the court could not weigh the benefits of the discovery against the alleged burdens of preservation. The court was thus left to speculate about the nature of the ESI on the drives, reasoning that it went to the heart of plaintiffs’ class action claims. As the district court observed, the firm may very well have obtained the relief it requested had it engaged in “good faith negotiations” with the plaintiffs over the preservation of the drives.

The Lesson for 2013: The Pippins decision reinforces a common refrain that parties seeking the protection of proportionality principles must engage in reasonable, cooperative discovery conduct. Staking out uncooperative positions in the name of zealous advocacy stands in sharp contrast to proportionality standards and the cost cutting mandate of Rule 1. Moreover, such a tactic may very well foreclose proportionality considerations, just as it did in Pippins.

**Another Must-Read Case: Kleen Products LLC v. Packaging Corp. of America (N.D. Ill. Sept. 28, 2012)

Conclusion

There were any number of other significant cases from 2012 that could have made this list.  We invite you to share your favorites in the comments section or contact us directly with your feedback.

December Symantec SharePoint Governance Twitter Chat

Thursday, December 13th, 2012

Join hashtag #IGChat and learn about SharePoint governance and creating effective governance plans

Over the years, SharePoint has become a favorite among organizations as a place to share and manage content. As SharePoint adoption increases – storage, performance and on-going maintenance become major challenges, and SharePoint governance becomes essential. Archiving and eDiscovery solutions provide a key part in any effective and lasting governance strategy for SharePoint.  

In a 2012 survey conducted by Osterman research, the results showed that 39 percent of all SharePoint implementations still don’t have a governance plan. This is due to the fact that implementing governance plans can be difficult.

During this Twitter Chat we will discuss the reasons why organizations need SharePoint governance and the role of archiving and eDiscovery in governance plans. Please join Symantec’s archiving/eDiscovery and SharePoint experts, Dave Scott (@DScottyt) and Rob Mossi (@RMossi24) next Tuesday, December 18 at 10 am PT to chat.

Dave Scott: Dave Scott is a Group Product Manager at Symantec specializing in social media and SharePoint archiving and eDiscovery. He has contributed articles to a number of leading industry publications and is a frequent contributor to Connect.symantec.com. 

Rob Mossi: Rob Mossi is a Sr. Product Marketing Manager with Symantec’s Enterprise Vault product team. With a focus on SharePoint, Rob actively participates in SharePoint archiving and information governance thought leadership activities, including research, conferences and social media. 

 Twitter Chat: SharePoint Governance #IGChat

 Date: Tuesday, December 18, 2012

 Time: 10 am PT

 Length: 1 hour

 Where: Twitter – follow the hashtag #IGChat

 Moderator: Symantec’s Dave Scott (@DScottyt)

Predictive Coding 101 & the Litigator’s Toolbelt

Wednesday, December 5th, 2012

Query your average litigation attorney about the difference between predictive coding technology and other more traditional litigation tools and you are likely to receive a wide range of responses. The fact that “predictive coding” goes by many names, including “computer-assisted review” (CAR) and “technology-assisted review” (TAR) illustrates a fundamental problem: what is predictive coding and how is it different from other tools in the litigator’s technology toolbelt™?

 Predictive coding is a type of machine-learning technology that enables a computer to “predict” how documents should be classified by relying on input (or “training”) from human reviewers. The technology is exciting for organizations attempting to manage skyrocketing eDiscovery costs because the ability to expedite the document review process and find key documents faster has the potential to save organizations thousands of hours of time. In a profession where the cost of reviewing a single gigabyte of data has been estimated to be around $18,000, narrowing days, weeks, or even months of tedious document review into more reasonable time frames means massive savings for thousands of organizations struggling to keep litigation expenditures in check.

 Unfortunately, widespread adoption of predictive coding technology has been relatively slow due to confusion about how predictive coding differs from other types of CAR or TAR tools that have been available for years. Predictive coding, unlike other tools that automatically extract patterns and identify relationships between documents with minimal human intervention, requires a deeper level of human interaction. That interaction involves significant reliance on humans to train and fine-tune the system through an iterative, hands-on process. Some common TAR tools used in eDiscovery that do not include this same level of interaction are described below:

  •  Keyword search: Involves inputting a word or words into a computer which then retrieves documents within the collection containing the same words. Also known as Boolean searching, keyword search tools typically include enhanced capabilities to identify word combinations and derivatives of root words among other things.
  •  Concept search: Involves the use of linguistic and statistical algorithms to determine whether a document is responsive to a particular search query. This technology typically analyzes variables such as the proximity and frequency of words as they appear in relationship to a keyword search. The technology can retrieve more documents than keyword searches because conceptually related documents are identified, whether or not those documents contain the original keyword search terms.
  •  Discussion threading: Utilizes algorithms to dynamically link together related documents (most commonly e-mail messages) into chronological threads that reveal entire discussions. This simplifies the process of identifying participants to a conversation and understanding the substance of the conversation.
  •  Clustering: Involves the use of algorithms to automatically organize a large collection of documents into different topical categories based on similarities between documents. Reviewing documents organized categorically can help increase the speed and efficiency of document review. 
  •  Find similar: Enables the automated retrieval of other documents related to a particular document of interest. Reviewing similar documents together accelerates the review process, provides full context for the document under review, and ensures greater coding consistency.
  •  Near-duplicate identification: Allows reviewers to easily identify, view, and code near-duplicate e-mails, attachments, and loose files. Some systems can highlight differences between near-duplicate documents to help simplify document review.

Unlike the TAR tools listed above, predictive coding technology relies on humans to review a small fraction of the overall document population, which ultimately results in a fraction of the review costs. The process entails feeding decisions about how to classify a small number of case documents called a training set into a computer system. The computer then relies on the human training decisions to generate a model that is used to predict how the remaining documents should be classified. The information generated by the model can be used to rank, analyze, and review the documents quickly and efficiently. Although documents can be coded with multiple designations that relate to various issues in the case during eDiscovery, many times predictive coding technology is simply used to segregate responsive and privileged documents from non-responsive documents in order to expedite and simplify the document review process.

 Training the predictive coding system is an iterative process that requires attorneys and their legal teams to evaluate the accuracy of the computer’s document prediction scores at each stage. A prediction score is simply a percentage value assigned to each document that is used to rank all the documents by degree of responsiveness. If the accuracy of the computer-generated predictions is insufficient, additional training documents can be selected and reviewed to help improve the system’s performance. Multiple training sets are commonly reviewed and coded until the desired performance levels are achieved. Once the desired performance levels are achieved, informed decisions can be made about which documents to produce.

 For example, if the legal team’s analysis of the computer’s predictions reveals that within a population of 1 million documents, only those with prediction scores in the 70 percent range and higher appear to be responsive, the team may elect to produce only those 300,000 documents to the requesting party. The financial consequences of this approach are significant because a majority of the documents can be excluded from expensive manual review by humans. The simple rule of thumb in eDiscovery is that the fewer documents requiring human review, the more money saved since document review is typically the most expensive facet of eDiscovery.

 Hype and confusion surrounding the promise of predictive coding technology has led some to believe that the technology renders other TAR tools obsolete. To the contrary, predictive coding technology should be viewed as one of many different types of tools in the litigator’s technology toolbelt™ that often can and should be used together. Choosing which of these tools to use and how to use them depends on the case and requires balancing factors such as discovery deadlines, cost, and complexity. Many believe the choice about which tools should be used for a particular matter, however, should be left to producing party as long as the tools are used properly and in a manner that is “just” for both parties as mandated by Rule 1 of the Federal Rules of Civil Procedure

 The notion that parties should be able to choose which tools they use during discovery recently garnered support in the 7th Federal Circuit. In Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al., Judge Nolan was faced with exploring plaintiffs’ claim that the defendants’ should be required to supplement their use of keyword searching tools with more advanced tools in order to better comply with their duty to produce documents. Plaintiffs’ argument hinged largely on the assumption that using more advanced tools would result in a more thorough document production. In response to this argument, Judge Nolan referenced Sedona Best Practices Recommendations & Principles for Addressing Electronic Document Production during a hearing between the parties to suggest that carpenter (end user) is best equipped to select the appropriate tool during discovery. Sedona Principle 6 states that:

“[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

Even though the parties in Kleen Products ultimately postponed further discussion about whether tools like predictive coding technology should be used when possible during discovery, the issue remains important because it is likely to resurface again and again as predictive coding momentum continues to grow. Some will argue that parties who fail to leverage modern technology tools like predictive coding are attempting to game the legal system to avoid thorough document productions.  In some instances, that argument could be valid, but it should not be a foregone conclusion.

Although there will likely come a day where predictive coding technology is the status quo for managing large scale document review, that day has not yet arrived. Predictive coding technology is a type of machine learning technology that has been used in other disciplines for decades. However, predictive coding tools are still very new to the field of law. As a result, most predictive coding tools lack transparency because they provide little if any information about the underlying statistical methodologies they apply. The issue is important because the misapplication of statistics could have a dramatic effect on the thoroughness of document productions. Unfortunately, these nuanced issues are sometimes misunderstood or overlooked by predictive coding proponents –a problem that could ultimately result in unfairness to requesting parties and stall broader adoption of otherwise promising technology. 

Further complicating matters is the fact that several solution providers have introduced new predictive coding tools in recent months to try and capture market share. In the long term, competition is good for consumers and the industry as a whole. In the short term, however, most of these tools are largely untested and vary in quality and ease of use, thereby adding more confusion to would-be consumers. The unfortunate end result is that many lawyers are shying away from using predictive coding technology until the pros and cons of various technology solutions and their providers are better understood.  Market confusion is often one of the biggest stumbling blocks to faster adoption of technology that could save organizations millions and the current predictive coding landscape is a testament to this fact.

Eliminating much of the current confusion through education is the precise goal of Symantec’s Predictive Coding for Dummies book. The book addresses everything from predictive coding case law and defensible workflows, to key factors that should be considered when evaluating different predictive coding tools. The book strives to provide attorneys and legal staff accustomed to using traditional TAR tools like keyword searching with a baseline understanding of a new technological approach that many find confusing. We believe providing the industry with this basic level of understanding will help ensure that predictive coding technology and related best practices standards will evolve in a manner that is fair to both parties –ultimately, expediting rather than slowing broader adoption of this promising new technology. To learn more, download a free copy of Predictive Coding for Dummies and feel free to share your feedback and comments below.

What Abraham Lincoln Teaches about Defensible Deletion of ESI

Monday, November 19th, 2012

The reviews are in and movie critics are universally acclaiming Lincoln, the most recent Hollywood rendition regarding the sixteenth president of the United States. While viewers may or may not enjoy the movie, the focus on Abraham Lincoln brings to mind a rather key insight for organizations seeking to strengthen their defensible deletion process.

Lincoln has long been admired for his astute handling of the U.S. Civil War and for his inventive genius (he remains the only U.S. President who patented an invention). Nevertheless, it is Lincoln’s magnanimous, yet shrewd treatment of his rivals that provides the key lesson for organizations today. With a strategy that inexplicably escapes many organizations, Lincoln intelligently organized his documents and other materials so that he could timely retrieve them to help keep his political enemies in check.

This strategy was particularly successful with his Secretary of the Treasury, Salmon Chase, who constantly undermined Lincoln in an effort to bolster his own presidential aspirations. To blunt the effect of Chase’s treachery, Lincoln successfully wielded the weapon of information: Chase’s letters to Lincoln that were filled with problematic admissions. Doris Kearns Goodwin chronicled in her Pulitzer Prize winning book, Team of Rivals, how Lincoln always seemed to access that information at a moment’s notice to save him from Chase’s duplicity.

Lincoln’s tactics reinforce the value of retaining and retrieving important information in a time of need. Lacking the organizational and technological capacity to do so may prevent companies from pulling up information at a crucial moment, be it for business, legal or regulatory purposes. For this and many other reasons, industry experts are recommending that organizations implement a defensible deletion strategy.

Defensible Deletion Requires Deletion                    

Such a strategy could have some success if it is powered by the latest in effective retention technologies such as data classification and automated legal hold. Such innovations will better enable organizations to segregate and preserve business critical ESI.

And yet, it is not enough to just adopt the preservation side of this strategy, for the heart of defensible deletion requires just that – deleting large classes of superfluous, duplicative and harmful data – if its benefits are ever to be realized. Companies that fail to delete such ESI will likely never come off conqueror in the “battle of the data bulge.” Indeed, such a growing waistline of data is problematic for three reasons. First, it can place undue pressure on an organization’s storage infrastructure and needlessly increase the cost of data retention. It can also result in higher eDiscovery costs as the organization is forced to review and analyze all of that ESI largesse. Finally, a potentially fatal risk of producing harmful materials – kept beyond the time required by law – in eDiscovery will unnecessarily increase. All of which could have been obviated had the enterprise observed the rule of “good corporate housekeeping” by eliminating ESI in a manner approved by courts and the rules makers.

For organizations willing to get rid of their digital clutter, defensible deletion offers just what they need so as to reduce the costs and risks of bloated ESI retention. Doing so will help companies make better use that information so, like Honest Abe, they can stave off troublesome challenges threatening the enterprise.

Where There’s Smoke There’s Fire: Powering eDiscovery with Data Loss Prevention

Monday, November 12th, 2012

New technologies are being repurposed for Early Case Assessment (ECA) in this ever-changing global economy chockfull of intellectual property theft and cybertheft. These increasingly hot issues are now compelling lawyers to become savvier about how the technologies they use to identify IP theft and related issues in eDiscovery. One of the more useful, but often overlooked tools in this regard is Data Loss Prevention (DLP) technology. Traditionally a data breach and security tool, DLP has emerged as yet another tool in the Litigator’s Tool Belt™ that can be applied in eDiscovery.

DLP technology utilizes Vector Machine Learning (VML) to detect intellectual property, such as product designs, source code and trademarked language that are deemed proprietary and confidential. This technology eliminates the need for developing laborious keyword-based policies or fingerprinting documents. While a corporation can certainly customize these policies, there are off the shelf materials that make the technology easy to deploy.

An exemplary use case that spotlights how DLP could have been deployed in the eDiscovery context is the case of E.I. Du Pont de Nemours v. Kolon Industries. In DuPont, a jury issued a $919 million verdict after finding that the defendant manufacturer stole critical elements of the formula for Kevlar, a closely guarded and highly profitable DuPont trade secret. Despite the measures that were taken to protect the trade secret, a former DuPont consultant successfully copied key information relating to Kevlar on to a CD that was later disseminated to the manufacturer’s executives. All of this came to light in the recently unsealed criminal indictments the U.S. Department of Justice obtained against the manufacturer and several of its executives.

Perhaps all of this could have been avoided had a DLP tool been deployed. A properly implemented DLP solution in the DuPont case might have detected the misappropriation that occurred and perhaps prompted an internal investigation. At the very least, DLP could possibly have mitigated the harmful effects of the trade secret theft. DLP technology could potentially have detected the departure/copying of proprietary information and any other suspicious behavior regarding sensitive IP.

As the DuPont case teaches, DLP can be utilized to detect IP theft and data breaches. In addition, it can act as an early case assessment (ECA) tool for lawyers in both civil and criminal actions. With data breaches, where there is smoke (breach) there is generally fire (litigation). A DLP incident report can be used as a basis for an investigation, and essentially reverse engineer the ECA process with hard evidence underlying the data breach. Thus, instead of beginning an investigation with a hunch or tangential lead, DLP gives hard facts to lawyers, and ultimately serves as a roadmap for effective legal hold implementation for the communications of custodians. Instead of discovering data breaches during the discovery process, DLP allows lawyers to start with this information, making the entire matter more efficient and targeted.

From an information governance point of view, DLP also has a relationship with the left proactive side of the Electronic Discovery Reference Model. The DLP technology can also be repurposed as Data Classification Services for automated document retention. The policy and technology combination of DCS/DLP speak to each other in harmony to accomplish appropriate document retention as well as breach prevention and notification. It follows that there would be similar identifiers for both policy consoles in DCS/DLP, and that these indicators enable the technology to make intelligent decisions.

Given this backdrop, it behooves both firm lawyers and corporate counsel to consider getting up to speed on the capabilities of DLP tools. The benefits DLP offers in eDiscovery are too important to be ignored.