e-discovery 2.0

The eDiscovery world is atwitter with two new developments – one is Judge Laster’s opinion in the EORHB case where he required both parties to use predictive coding. The other is the new EDBP model, created by Ralph Losey (and team) to “provide a model of best practices for use by law firms and corporate law departments.” Ralph was kind enough to answer a few questions for eDiscovery 2.0:

1. While perhaps not fair, I’ve already heard the EDBP referred to as the “new EDRM.” If busy folks could only read one paragraph on the distinction, could you set them straight?

“EDRM, the Electronic Discovery Reference Model, covers the whole gamut of an e-discovery project. The model provides a well-established, nine-step workflow that helps beginners understand e-discovery. EDBP, Electronic Discovery Best Practices, is focused solely on the activities of lawyers. The EDBP identifies a ten-step workflow of the rendition of legal services in e-discovery. Moreover, EDBP.com attempts to capture and record what lawyers specializing in the field now consider the best practices for each of these activities.”

“By the way, although I have a copyright on these diagrams, anyone may freely use the diagrams. We encourage that. We are also open to suggestions for best practices from any practicing lawyer. We anticipate that this will be a constantly evolving model and collection of best practices.”

2. Given the lawyer-centric focus, what void are you attempting to fill with the EDBP?

“I was convinced by my friend Jason Baron of the need for standards in the world of e-discovery. It is too much of a wild west out there now, and we need guidance. But as a private lawyer I am also cognizant of the dangers of creating minimum standards for lawyers that could be used as a basis for malpractice suits. It is not an appropriate thing for any private group to do. It is a judicial matter that will arise out of case law and competition. So after a lot of thought we realized that minimum standards should only be articulated for the non-legal-practice part of e-discovery, in other words, standards should be created for vendors only and their non-legal activities. The focus for lawyers should be on establishing best practices, not minimum standards. I created this graphic using the analogy of a full tank of gas to visualize this point and explained it my blog Does Your CAR (“Computer Assisted Review”) Have a Full Tank of Gas?”

“This continuum of competence applies not only to the legal service of Computer Assisted Review (CAR), aka Technology Assisted Review (TAR), but to all legal services. The goal of EDBP is to help lawyers avoid negligence by staying far away from minimum standards and focus instead of the ideals, the best practices.”

3. The EDBP has ten steps. While assuredly unfair, what step contains the most controversy/novelty compared to business as usual in the current e-Discovery world?

“None really. That’s the beauty of it. The EDBP just documents what attorneys already do. The only thing controversial about it, if you want to call it that, is that it established another frame of reference for e-discovery in addition to the EDRM. It does not replace EDRM. It supplements it. Most lawyers specializing in the field will get EDBP right away.”

“I suppose you could say giving Cooperation its very own key place in a lawyer’s work flow might be somewhat controversial, but there is no denying that the rules, and best practices, require lawyers to talk to each other and at least try to cooperate. Failing that, all the judges and experts I have heard suggest that you should initiate early motion practice and not wait until the end. There seems to be widespread consensus in the e-discovery community on the key role of cooperative dialogues with opposing counsel and the court, so I do not think it is really controversial, but may still be news to the larger legal community. In fact, all of these best practices may not be well-known to the average Joe Litigator, which just shows the strong need for an educational resource like EDBP.”

4. Why not use “information governance” instead of “litigation readiness” on the far left hand side of the EDBP?

 “There is far more to getting a client ready for litigation than helping them with their information governance. Plus, remember, this is not a workflow for vendors or management or records managers. It is not a model for an entire e-discovery team. This is a workflow only for what lawyers do.”

5. Given your recent, polarizing article urging law firms to get out of the eDiscovery business, how does the EDBP model either help or hinder that exhortation?

 “This article was part of my attempt to clarify the line between legal e-discovery services and non-legal e-discovery services. EDBP is a part of that effort because it is only concerned with the law. It does not include non-legal services. As a practicing lawyer my core competency is legal advice, not processing ESI and software. Many lawyers agree with me on this, so I don’t think my article was polarizing so much as it is exposing, kind of like the young kid who pointed out that the emperor had no clothes.

The professionals in law firm lit support departments will eventually calm down when they realize no jobs are lost in this kind of outsourcing, and it all stays in the country. The work just moves from law firms, that also do some e-discovery, to businesses, most of whom only do e-discovery. I predict that when this kind of outsourcing catches on, that it will be common for the vendor with the outsourcing contract to hire as many of the law firm’s lit-support professionals as possible.

My Emperor’s no-clothes expose applies to the vendor side of the equation too. Vendors, like law firms, should stick to their core competence and stay away from providing legal advice. UPL is a serious matter. In most states it is a crime. Many vendors may well be competent to provide legal services, but they do not have a license to do so, not to mention their lack of malpractice insurance.

I am trying to help the justice system by clarifying and illuminating the line between law and business. It has become way too blurred to the detriment of both. Much of this fault lies on the lawyer-side as many seem quite content to unethically delegate their legal duties to non-lawyers, rather than learn this new area of law. I am all for the team approach. I have been advocating it for years in e-DiscoveryTeam.com. But each member of the team should know their strengths and limitations and act accordingly. We all have different positions to play on the team. We cannot all be quarterbacks.”

6. [Bonus Question] “EDBP” doesn’t just roll off the tongue. Given your prolific creativity (I seem to recall hamsters on a trapeze at one point in time), did you spend any cycles on a more mellifluous name for the new model?

“There are not many four-letter dot-com domain names out there for purchase, and none for free, and I did not want to settle for dot-net like EDRM did. I am proud, and a tad poorer, to have purchased what I think is a very good four-letter domain name, EDBP.com. After a few years EDBP will flow off your tongue too, after all, if has an internal rhyme – ED BP. Just add a slight pause to the name, ED … BP, and it flows pretty well thank you.”

Thanks Ralph.  We look forward to seeing how this new model gains traction. Best of luck.

Gartner recently released a report that spotlights the importance of using email archiving as part of an organization’s defensible deletion strategy. The report – Best Practices for Using Email Archiving to Eliminate PST and Mailbox Quota Headaches (Alan Dayley, September 21, 2012) – specifically focuses on the information retention and eDiscovery challenges associated with email storage on Microsoft Exchange and how email archiving software can help address these issues. As Gartner makes clear in its report, an archiving solution can provide genuine opportunities to reduce the costs and risks of email hoarding.

The Problem: PST Files

The primary challenge that many organizations are experiencing with Microsoft Exchange email is the unchecked growth of messages stored in portable storage tablet (PST) files. Used to bypass storage quotas on Exchange, PST files are problematic because they increase the costs and risks of eDiscovery while circumventing information retention policies.

That the unrestrained growth of PST files could create problems downstream for organizations should come as no surprise. Various court decisions have addressed this issue, with the DuPont v. Kolon Industries litigation foremost among them. In the DuPont case, a $919 million verdict and 20 year product injunction largely stemmed from the defendant’s inability to prevent the destruction of thousands pages of email formerly stored in PST files. That spoliation resulted in a negative inference instruction to the jury and the ensuing verdict against the defendant.

The Solution: Eradicate PSTs with the Help of Archiving Software and Retention Policies

To address the PST problem, Gartner suggests following a three-step process to help manage and then eradicate PSTs from the organization. This includes educating end users regarding both the perils of PSTs and the ease of access to email through archiving software. It also involves disabling the creation of new PSTs, a process that should ultimately culminate with the elimination of existing PSTs.

In connection with this process, Gartner suggests deployment of archiving software with a “PST management tool” to facilitate the eradication process. With the assistance of the archiving tool, existing PSTs can be discovered and migrated into the archive’s central data repository. Once there, email retention policies can begin to expire stale, useless and even harmful messages that were formerly outside the company’s information retention framework.

With respect to the development of retention policies, organizations should consider engaging in a cooperative internal process involving IT, compliance, legal and business units. These key stakeholders must be engaged and collaborate if a workable policies are to be created. The actual retention periods should take into account the types of email generated and received by an organization, along with the enterprise’s business, industry and litigation profile.

To ensure successful implementation of such retention policies and also address the problem of PSTs, an organization should explore whether an on premise or cloud archiving solution is a better fit for its environment. While each method has its advantages, Gartner advises organizations to consider whether certain key features are included with a particular offering:

While perhaps not a panacea for the storage and eDiscovery problems associated with email, on premise or cloud archiving software should provide various benefits to organizations. Indeed, such technologies have the potential to help organizations store, manage and discover their email efficiently, cost effectively and in a defensible manner. Where properly deployed and fully implemented, organizations should be able to reduce the nettlesome costs and risks connected with email.

Ralph Losey, an attorney for Jackson Lewis, reported last week that a Delaware judge took matters into his own hands by proactively requiring both parties to show cause as to why they should not use predictive coding technology to manage electronic discovery. Predictive coding advocates around the globe will eagerly trumpet Judge Laster’s move as another judicial stamp of approval for predictive coding much the same way proponents lauded Judge Peck’s order in in Da Silva Moore, et. al. v. Publicis Groupe, et. al.  In Da Silva Moore, Judge Peck stated that computer-assisted review is “acceptable in appropriate cases.” In stark contrast to Da Silva Moore, the parties in EORHB, Inc., et al v. HOA Holdings, LLC, not only never agreed to use predictive coding technology, there is no indication they ever initiated the discussion with one another let alone with Judge Laster. In addition to attempting to dictate the technology tool to be used, Judge Laster also directed the parties to use the same vendor. Apparently, Judge Laster not only has the looks of Agent 007, he shares James Bonds’ bold demeanor as well.

Although many proponents of predictive coding technology will see Judge Laster’s approach as an important step forward toward broader acceptance of predictive coding technology, the directive may sound alarm bells for others. The approach contradicts the apparent judicial philosophy applied in Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al. — a 7^th Circuit case also addressing the use of predictive coding technology. During one of many hearings between the parties in Kleen, Judge Nan Nolan stated that “the defendant under Sedona 6 has the right to pick the [eDiscovery] method.”  Judge Nolan’s statement is a nod to Principle 6 of the Sedona Best Practices Recommendations & Principles for Addressing Electronic Document Production which states:

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

Many attorneys shudder at the notion that the judiciary should choose (or at least strongly urge) the specific technology tools parties must use during discovery. The concern is based largely on the belief that many judges lack familiarity with the wide range of eDiscovery technology tools that exist today.  For example, keyword search, concept search, and email threading represent only a few of the many technology tools in the litigator’s tool belt that can be used in conjunction with predictive coding tools to accelerate document review and analysis.  The current challenge is that predictive coding technology is relatively new to the legal industry so the technology is much more complex than some of the older tools in the litigator’s tool belt.  Not surprisingly, this complexity combined with an onslaught of new entrants to the predictive coding market has generated a lot of confusion about how to use predictive coding tools properly.

Current market confusion is precisely what Judge Laster and the parties in EORHB must overcome in order to successfully advance the adoption of predictive coding tools within the legal community. Key to the success of this mission is the recognition that predictive coding pitfalls are not always easy to identify– let alone avoid. However, if these pitfalls are properly identified and navigated, then Judge Laster’s mission may be possible.

Identifying pitfalls is challenging because industry momentum has led many to erroneously assume that all predictive coding tools work the same way. The momentum has been driven by the potential for organizations to save millions in document review costs with predictive coding technology. As a result, vendors are racing to market at breakneck speed to offer their own brand of predictive coding technology. Those without their own solutions are rapidly forming partnerships with those who have offerings so they too can capitalize on the predictive coding financial bonanza that many believe is around the corner. This rush to market has left the legal and academic communities with little time to build consensus about the best way to properly vet a wide range of new technology offerings.  More specifically, the predictive coding craze has fostered an environment where there is often a lack of scrutiny related to individual predictive coding tools.

The harsh reality is that all predictive coding tools are not created equally.  For example, some providers erroneously call their solution “predictive coding technology” when the solution they offer is merely a type of clustering and/or concept searching technology that has been commonly used for over a decade. Even among predictive coding tools that are perceived as legitimate, pricing varies so widely that using some tools may not even be economically feasible considering the value of the case at hand. Some solution providers charge a premium to use their predictive coding tools and require additional expenditures in the form of consulting fees, while others tools are integrated within easy-to-use eDiscovery platforms at no additional cost.

If the court and parties decide that using predictive coding technology in EORHB makes economic sense, they must understand the importance of statistics and transparency to insure a fair playing field. The widespread belief that all predictive coding technologies surpass the accuracy of human review is a pervasive misperception that continues to drive confusion in the industry. The assumption is false not only because these tools must be used correctly to yield reliable results, but because the underlying statistical methodology applied by the tools must also be sound for the tools to work properly and exceed the accuracy of human review. (See Predictive Coding for Dummies for a more comprehensive explanation of predictive coding and statistics).

The underlying statistical methodology utilized by most tools today is almost always unclear which should automatically raise red flags for Judge Laster. In fact, this lack of transparency has led many to characterize most predictive coding tools as “black box” technologies – meaning that inadequate information about how the tools apply statistics makes it difficult to trust the results. There are differing schools of thought about the proper application of statistics in predictive coding that have largely been ignored to date.  Hopefully Judge Laster and the parties will use the present case as an opportunity to clarify some of this confusion so that the adoption of predictive coding technology within the legal community is accelerated in a way that involves sufficient scrutiny of the processes and tools used.

Judge Laster and the parties in EORHB are presented with a unique opportunity to address many important issues related to the use of predictive coding technology that are often misunderstood and overlooked. Hopefully the parties use predictive coding technology and engage in a dialogue that highlights the importance of selecting the right predictive coding tool, using that tool correctly, and the proper application of statistics.  If the court and the parties shed light on these three areas, Judge Laster’s predictive coding mission may be possible.

The song “Dazed and Confused,” by legendary rock band Led Zeppelin, has a great stanza:

 Been Dazed and Confused for so long it’s not true.

Wanted a woman, never bargained for you.

Lots of people talk and few of them know, soul of a woman was created below.

As I recently surveyed the definitions for “eDiscovery,” it occurred to me that lots of folks talk as if they know the definition, but few likely appreciate many of the subtle nuances. And, if you forced them to, many wouldn’t be able to write a concise eDiscovery definition.

The first, obvious place to look for an eDiscovery north star is the EDRM, which was originally responsible for creating the lingua franca for the entire industry.

EDRM (Electronic Discovery definition)

• “Discovery documents produced in electronic formats rather than hardcopy. The production may be contained on hard drives, tapes, CDs, DVDs, external hard drives, etc. Once received, these documents are converted to .tif format. It is during the conversion process that metadata can be extracted.
• A process that includes electronic documents and email into a collection of ‘discoverable’ documents for litigation. Usually involves both software and a process that searches and indexes files on hard drives or other electronic media. Extracts metadata automatically for use as an index. May include conversion of electronic documents to an image format as if the document had been printed out and then scanned.
• The discovery of electronic documents and data including e-mail, Web pages, word processing files, computer databases, and virtually anything that is stored on a computer. Technically, documents and data are ‘electronic’ if they exist in a medium that can only be read through the use of computers. Such media include cache memory, magnetic disks (such as computer hard drives or floppy disks), optical disks (such as DVDs or CDs), and magnetic tapes. 
• The process of finding, identifying, locating, retrieving, and reviewing potentially relevant data in designated computer systems.”

Gartner, the large IT analyst firm, proffers a different version.

Gartner (E-discovery definition)

“E-discovery is the identification, preservation, collection, preparation, review and production of electronically stored information associated with legal and government proceedings. The e-discovery market is not unified or simple — significant differences exist among vendors and service providers regarding technologies, specialized markets, overall functionality and service offerings. Content and records management, information access and search, and e-mail archiving and retention technologies provide key foundations to the e-discovery function. More and more enterprises are looking to insource at least part of the e-discovery function, especially records management, identification, preservation and collection of electronic files. E-discovery technology can be provided as a stand-alone application, embedded in other applications or services, or accessed as a hosted offering.”

The Sedona Conference, which is the leading think tank on all things eDiscovery, has the following definition:

Sedona (Electronic Discovery/Discovery definition)

“Electronic Discovery (“E-Discovery”): The process of identifying, preserving, collecting, preparing, reviewing, and producing electronically stored information (“ESI”) in the context of the legal process. See Discovery.”

“Discovery: Discovery is the process of identifying, locating, securing, and producing information and materials for the purpose of obtaining evidence for utilization in the legal process. The term is also used to describe the process of reviewing all materials that may be potentially relevant to the issues at hand and/or that may need to be disclosed to other parties, and of evaluating evidence to prove or disprove facts, theories, or allegations. There are several ways to conduct discovery, the most common of which are interrogatories, requests for production of documents, and depositions.”

Looking at these in concert, a few things come into focus, aside from the vexingly diverse naming conventions.  First, the EDRM definition focuses (as some might expect) on the tactics and practice of eDiscovery. This is a useful starting place, but they’ve missed out on other elements, like the overall market dynamics, which are discussed (again not surprisingly) by Gartner. Gartner likewise addresses how eDiscovery is accomplished, referencing the need for software and the escalating trend of taking eDiscovery tools in house. Sedona (coming from a legal theory perspective) relies heavily on the legal definition of “discovery,” properly referencing its context in the legal process, a fact sometimes lost by practitioners that have expanded eDiscovery into other non-legal avenues.

These definitions are fine in the abstract, but even collectively they nevertheless fail to take into account several key points. First, as eDiscovery is quickly subsumed into the larger information governance umbrella, it’s important to stress the historically reactive nature of eDiscovery. This reactive posture can be nicely contrasted with the upstream concepts of information management and governance, which significantly impact the downstream, reactive elements.

Next, it’s important to recognize the costs/risks inherent in the eDiscovery process. Whether it’s due to spoliation sanctions or simply the costs of eDiscovery (which easily costs $1.5M per matter), the potential impact to the organization can’t be ignored. Without a true grasp on the organizational costs/risks, entities can’t properly begin to deploy either reactive or proactive solutions since they won’t have enough data for comprehensive ROI calculations. Finally, eDiscovery as a term has started to experience scope creep. What used to be firmly tethered to the legal discovery process has recently expanded into use cases where the process is now deployed in a number of similar (but non-legal) scenarios such as internal investigations, governmental inquiries, FOIA requests, FCPA, etc.

These additional aspects are critical for developing a comprehensive understanding of eDiscovery. And, while a comprehensive definition isn’t the final end game to this complex challenge, it’s certainly a better starting place than being “dazed and confused” about the nuances of eDiscovery.  Eliminating unnecessary confusion early in the game is ultimately essential to promoting and not hindering long term initiatives.

The eagerly awaited Directive from The Office of Management and Budget (OMB) and The National Archives and Records Administration (NARA) was released at the end of August. In an attempt to go behind the scenes, we’ve asked the Project Management Office (PMO) and the Chief Records Officer for the NARA to respond to a few key questions. 

We know that the Presidential Mandate was the impetus for the agency self-assessments that were submitted to NARA. Now that NARA and the OMB have distilled those reports, what are the biggest challenges on a go forward basis for the government regarding record keeping, information governance and eDiscovery?

“In each of those areas, the biggest challenge that can be identified is the rapid emergence and deployment of technology. Technology has changed the way Federal agencies carry out their missions and create the records required to document that activity. It has also changed the dynamics in records management. In the past, agencies would maintain central file rooms where records were stored and managed. Now, with distributed computing networks, records are likely to be in a multitude of electronic formats, on a variety of servers, and exist as multiple copies. Records management practices need to move forward to solve that challenge. If done right, good records management (especially of electronic records) can also be of great help in providing a solid foundation for applying best practices in other areas, including in eDiscovery, FOIA, as well as in all aspects of information governance.”    

What is the biggest action item from the Directive for agencies to take away?

“The Directive creates a framework for records management in the 21^st century that emphasizes the primacy of electronic information and directs agencies to being transforming their current process to identify and capture electronic records. One milestone is that by 2016, agencies must be managing their email in an electronically accessible format (with tools that make this possible, not printing out emails to paper). Agencies should begin planning for the transition, where appropriate, from paper-based records management process to those that preserve records in an electronic format.

The Directive also calls on agencies to designate a Senior Agency Official (SAO) for Records Management by November 15, 2012. The SAO is intended to raise the profile of records management in an agency to ensure that each agency commits the resources necessary to carry out the rest of the goals in the Directive. A meeting of SAOs is to be held at the National Archives with the Archivist of the United States convening the meeting by the end of this year. Details about that meeting will be distributed by NARA soon.”

Does the Directive holistically address information governance for the agencies, or is it likely that agencies will continue to deploy different technology even within their own departments?

“In general, as long as agencies are properly managing their records, it does not matter what technologies they are using. However, one of the drivers behind the issuance of the Memorandum and the Directive was identifying ways in which agencies can reduce costs while still meeting all of their records management requirements. The Directive specifies actions (see A3, A4, A5, and B2) in which NARA and agencies can work together to identify effective solutions that can be shared.”

Finally, although FOIA requests have increased and the backlog has decreased, how will litigation and FOIA intersecting in the next say 5 years?  We know from the retracted decision in NDLON that metadata still remains an issue for the government…are we getting to a point where records created electronically will be able to be produced electronically as a matter of course for FOIA litigation/requests?

“In general, an important feature of the Directive is that the Federal government’s record information – most of which is in electronic format – stays in electronic format. Therefore, all of the inherent benefits will remain as well – i.e., metadata being retained, easier and speedier searches to locate records, and efficiencies in compilation, reproduction, transmission, and reduction in the cost of producing the requested information. This all would be expected to have an impact in improving the ability of federal agencies to respond to FOIA requests by producing records in electronic formats.”

Fun Fact- Is NARA really saving every tweet produced?

“Actually, the Library of Congress is the agency that is preserving Twitter. NARA is interested in only preserving those tweets that a) were made or received in the course of government business and b) appraised to have permanent value. We talked about this on our Records Express blog.”

“We think President Barack Obama said it best when he made the following comment on November 28, 2011:

“The current federal records management system is based on an outdated approach involving paper and filing cabinets. Today’s action will move the process into the digital age so the American public can have access to clear and accurate information about the decisions and actions of the Federal Government.” Paul Wester, Chief Records Officer at the National Archives, has stated that this Directive is very exciting for the Federal Records Management community.  In our lifetime none of us has experienced the attention to the challenges that we encounter every day in managing our records management programs like we are now. These are very exciting times to be a records manager in the Federal government. Full implementation of the Directive by the end of this decade will take a lot of hard work, but the government will be better off for doing this and we will be better able to serve the public.”

Special thanks to NARA for the ongoing dialogue that is key to transparent government and the effective practice of eDiscovery, Freedom Of Information Act requests, records management and thought leadership in the government sector. Stay tuned as we continue to cover these crucial issues for the government as they wrestle with important information governance challenges. 

The struggle to stay above the rising tide of information is a constant battle for organizations. Not only are the costs and logistics associated with data storage more troubling than ever, but so are the potential legal consequences. Indeed, the news headlines are constantly filled with horror stories of jury verdicts, court judgments and unreasonable settlements involving organizations that failed to effectively address their data stockpiles.

While there are no quick or easy solutions to these problems, an ever increasing method for effectively dealing with these issues is through an organizational strategy referred to as defensible deletion. A defensible deletion strategy could refer to many items. But at its core, defensible deletion is a comprehensive approach that companies implement to reduce the storage costs and legal risks associated with the retention of electronically stored information (ESI). Organizations that have done so have been successful in avoiding court sanctions while at the same time eliminating ESI that has little or no business value.

The first step to implementing a defensible deletion strategy is for organizations to ensure that they have a top-down plan for addressing data retention. This typically requires that their information governance principals – legal and IT – are cooperating with each other. These departments must also work jointly with records managers and business units to decide what data must be kept and for what length of time. All such stakeholders in information retention must be engaged and collaborate if the organization is to create a workable defensible deletion strategy.

Cooperation between legal and IT naturally leads the organization to establish records retention policies, which carry out the key players’ decisions on data preservation. Such policies should address the particular needs of an organization while balancing them against litigation requirements. Not only will that enable a company to reduce its costs by decreasing data proliferation, it will minimize a company’s litigation risks by allowing it to limit the amount of potentially relevant information available for current and follow-on litigation.

In like manner, legal should work with IT to develop a process for how the organization will address document preservation during litigation. This will likely involve the designation of officials who are responsible for issuing a timely and comprehensive litigation hold to custodians and data sources. This will ultimately help an organization avoid the mistakes that often plague document management during litigation.

The Role of Technology in Defensible Deletion

In the digital age, an essential aspect of a defensible deletion strategy is technology. Indeed, without innovations such as archiving software and automated legal hold acknowledgements, it will be difficult for an organization to achieve its defensible deletion objectives.

On the information management side of defensible deletion, archiving software can help enforce organization retention policies and thereby reduce data volume and related storage costs. This can be accomplished with classification tools, which intelligently analyze and tag data content as it is ingested into the archive. By so doing, organizations may retain information that is significant or that otherwise must be kept for business, legal or regulatory purposes – and nothing else.

An archiving solution can also reduce costs through efficient data storage. By expiring data in accordance with organization retention policies and by using single instance storage to eliminate ESI duplicates, archiving software frees up space on company servers for the retention of other materials and ultimately leads to decreased storage costs. Moreover, it also lessens litigation risks as it removes data available for future litigation.

On the eDiscovery side of defensible deletion, an eDiscovery platform with the latest in legal hold technology is often essential for enabling a workable litigation hold process. Effective platforms enable automated legal hold acknowledgements on various custodians across multiple cases. This allows organizations to confidently place data on hold through a single user action and eliminates concerns that ESI may slip through the proverbial cracks of manual hold practices.

Organizations are experiencing every day the costly mistakes of delaying implementation of a defensible deletion program. This trend can be reversed through a common sense defensible deletion strategy which, when powered by effective, enabling technologies, can help organizations decrease the costs and risks associated with the information explosion.

In a recent Inside Counsel article, I explored the tension between big data and the potentially competing notion of information governance by looking at the 5 Vs of Big Data…

“The Five Vs” of Big Data 

1.  Volume: Volume, not surprisingly, is the hallmark of the big data concept. Since data creation doubles every 18 months, we’ve rapidly moved from a gigabyte world to a universe where terabytes and exabytes rule the day.  In fact, according to a 2011 report from the McKinsey Global Institute, numerous U.S. companies now have more data stored than the U.S. Library of Congress, which has more than 285 terabytes of data (as of early this year). And to complicate matters, this trend is escalating exponentially with no reasonable expectation of abating. 

2. Velocity: According to the analysts firm Gartner, velocity can be thought of in terms of “streams of data, structured record creation, and availability for access and delivery.” In practical terms, this means organizations are having to constantly address a torrential flow of data into/out of their information management systems. Take Twitter, for example, where it’s possible to see more than 400 million tweets per day. As with the first V, data velocity isn’t slowing down anytime either.

3. Variety: Perhaps more vexing than both the volume and velocity issues, the Variety element of big data increases complexity exponentially as organizations must account for data sources/types that are moving in different vectors. Just to name a few variants, most organizations routinely must wrestle with structured data (databases), unstructured data (loose files/documents), email, video, static images, audio files, transactional data, social media, cloud content and more.

4. Value:  A more novel big data concept, value hasn’t typically been part of the typical definition. Here, the critical inquiry is whether the retained information is valuable either individually or in combination with other data elements, which are capable of rendering patterns and insights. Given the rampant existence of spam, non-business data (like fantasy football emails) and duplicative content, it’s easy to see that just because data may have the other 3 Vs, it isn’t inherently valuable from a big data perspective.

5. Veracity: Particularly in an information governance era, it’s vital that the big data elements have the requisite level of veracity (or integrity). In other words, specific controls must be put in place to ensure that the integrity of the data is not impugned. Otherwise, any subsequent usage (particularly for a legal or regulatory proceeding, like e-discovery) may be unnecessarily compromised.”

“Many organizations sadly aren’t cognizant of the lurking tensions associated with the rapid acceleration of big data initiatives and other competing corporate concerns around important constructs like information governance. Latent information risk is a byproduct of keeping too much data and the resulting exposure due to e-discovery costs/sanctions, potential security breaches and regulatory investigations. As evidence of this potential information liability, it costs only $.20 a day to manage 1GB of storage. Yet, according to a recent Rand survey, it costs $18,000 to review that same gigabyte of storage for e-discovery purposes.”

For more on this topic, click here.

The eDiscovery craze that has gripped the U.S. legal system over the past decade has been ignored in much of Europe. This is due in large part to Europe’s discovery rules, which generally forbid categorical document requests and other broad discovery procedures authorized in the U.S. by the Federal Rules of Civil Procedure (FRCP). Without the impetus created by eDiscovery demands, many companies operating in Europe may feel insulated from the need to implement an eDiscovery-oriented defensible deletion strategy. Yet the need for such a strategy – focused on reducing the costs and legal risks of storing electronic data – is universal.

With the opportunity to decrease storage costs and inefficiencies, having a laissez-faire attitude toward defensible deletion is troubling enough. But taking no action to prepare for eDiscovery is worse. That is especially the case for organizations operating in Europe that maintain offices in the United States. They may fall into an increasingly popular “American style” eDiscovery trap for unsuspecting litigants in European legal proceedings. That discovery trap is 28 U.S.C. §1782.

Section 1782 is a U.S. federal statute that enables companies involved in foreign legal proceedings to obtain discovery from parties or non-parties who have offices in the United States. A petitioning litigant under section 1782 need only make a minor threshold showing to a U.S. district court to justify the discovery. The petitioner must establish that the discovery is being sought from a person under its jurisdiction and will be used in foreign legal proceedings. In addition, the requested discovery must not offend the foreign tribunal or otherwise abuse the purposes of section 1782. This typically requires a showing that the discovery cannot be obtained from the foreign tribunal and is not an end-run around the tribunal’s rules or its country’s policies. As the U.S. Court of Appeal for the Seventh Circuit recently confirmed in Heraeus Kulzer GmbH v. Biomet, Inc., the successful petitioner “can obtain as much discovery as it could if the lawsuit had been brought in [the United States] rather than abroad.”

Section 1782 requests are on the rise, as evidenced by recent decisions issued by three separate U.S. Courts of Appeals. In Government of Ghana v. ProEnergy Services, 677 F.3d 340 (8th Cir. 2012), the plaintiff successfully used a section 1782 request to obtain documents, interrogatory answers and deposition transcripts in connection with parallel proceedings in The Hague and in Ghana. This was followed by an Eleventh Circuit order from June 2012, which allowed the defendant to an Ecuadorian arbitration to obtain documents under section 1782 from the plaintiff’s American subsidiary. And earlier this month, the Fifth Circuit revived a section 1782 petition in which a company sought documents and testimony to support its positions in an action before the High Court in the United Kingdom.

As the foregoing section 1782 jurisprudence teaches, unsuspecting enterprises can be exposed to the full spectrum of American eDiscovery headaches even in foreign legal proceedings. As a result, organizations should be prepared to address foreign eDiscovery matters in the same manner required for American litigation. This will likely include the development of a defensible deletion strategy as an essential element of the enterprise’s overall information governance plan. With defensible deletion, organizations can use effective, enabling technologies to limit the amount of potentially relevant information available for future litigation. The reduced data set will decrease storage costs in the short term and minimize legal risks over the long term. And when deployed in conjunction with an integrated approach to eDiscovery, defensible deletion can help organizations lower the costs of document review. Such an approach will likely facilitate the organization’s ability to prepare for discovery traps – American or otherwise.

The introduction of Transparent Predictive Coding to Symantec’s Clearwell eDiscovery Platform helps organizations defensibly reduce the time and cost of document review. Predictive coding refers to machine learning technology that can be used to automatically predict how documents should be classified based on limited human input. As expert reviewers tag documents in a training set, the software identifies common criteria across those documents, which it uses to “predict” the responsiveness of the remaining case documents. The result is that fewer irrelevant and non-responsive documents need to be reviewed manually – thereby accelerating the review process, increasing accuracy and allowing organizations to reduce the time and money spent on traditional page-by-page attorney document review.

Given the cost, speed and accuracy improvements that predictive coding promises, its adoption may seem to be a no-brainer. Yet predictive coding technology hasn’t been widely adopted in eDiscovery – largely because the technology and process itself still seems opaque and complex. Symantec’s Transparent Predictive Coding was developed to address these concerns and provide the level of defensibility necessary to enable legal teams to adopt predictive coding as a mainstream technology for eDiscovery review. Transparent Predictive Coding provides reviewers with complete visibility into the training and prediction process and delivers context for more informed, defensible decision-making.

Early adopters like Falcon Discovery have already witnessed the benefits of Transparent Predictive Coding. Falcon is a managed services provider that leverages a mix of top legal talent and cutting-edge technologies to help corporate legal departments, and the law firms that serve them, manage discovery and compliance challenges across matters. Recently, we spoke with Don McLaughlin, founder and CEO of Falcon Discovery, on the firm’s experiences with and lessons learned from using Transparent Predictive Coding.

1. Why did Falcon Discovery decide to evaluate Transparent Predictive Coding?

Predictive coding is obviously an exciting development for the eDiscovery industry, and we want to be able to offer Falcon’s clients the time and cost savings that it can deliver. At the same time there is an element of risk. For example, not all solutions provide the same level of visibility into the prediction process, and helping our clients manage eDiscovery in a defensible manner is of paramount importance. Over the past several years we have tested and/or used a number of different software solutions that include some assisted review or prediction technology. We were impressed that Symantec has taken the time and put in the research to integrate best practices into its predictive coding technology. This includes elements like integrated, dynamic statistical sampling, which takes the guesswork out of measuring review accuracy. This ability to look at accuracy across the entire review set provides a more complete picture, and helps address key issues that have come to light in some of the recent predictive coding court cases like Da Silva Moore.

2. What’s something you found unique or different from other solutions you evaluated?

I would say one of the biggest differentiators is that Transparent Predictive Coding uses both content and metadata in its algorithms to capture the full context of an e-mail or document, which we found to be appealing for two reasons. First, you often have to consider metadata during review for sensitive issues like privilege and to focus on important communications between specific individuals during specific time periods. Second, this can yield more accurate results with less work because the software has a more complete picture of the important elements in an e-mail or document. This faster time to evaluate the documents is critical for our clients’ bottom line, and enables more effective litigation risk analysis, while minimizing the chance of overlooking privileged or responsive documents.

3. So what were some of the success metrics that you logged?

Using Transparent Predictive Coding, Falcon was able to achieve extremely high levels of review accuracy with only a fraction of the time and review effort. If you look at academic studies on linear search and review, even under ideal conditions you often get somewhere between 40-60% accuracy. With Transparent Predictive Coding we are seeing accuracy measures closer to 90%, which means we are often achieving 90% recall and 80% precision by reviewing only a small fraction – under 10% – of the data population that you might otherwise review document-by-document. For the appropriate case and population of documents, this enables us to cut review time and costs by 90% compared to pure linear review. Of course, this is on top of the significant savings derived from leveraging other technologies to intelligently cull the data to a more relevant review set, prior to even using Transparent Predictive Coding. This means that our clients can understand the key issues, and identify potentially ‘smoking gun’ material, much earlier in a case.

4. How do you anticipate using this technology for Falcon’s clients?

I think it’s easy for people to get swept up by the “latest and greatest” technology or gadget and assume this is the silver bullet for everything we’ve been toiling over before. Take, for example, the smartphone camera – great for a lot of (maybe even most) situations, but sometimes you’re going to want that super zoom lens or even (gasp!) regular film. By the same token, it’s important to recognize that predictive coding is not an across-the-board substitute for other important eDiscovery review technologies and targeted manual review. That said, we’ve leveraged Clearwell to help our clients lower the time and costs of the eDiscovery process on hundreds of cases now, and one of the main benefits is that the solution offers the flexibility of using any number of advanced analytics tools to meet the specific requirements of the case at hand. We’re obviously excited to be able to introduce our clients to this predictive coding technology – and the time and cost benefits it can deliver – but this is in addition to other Clearwell tools, like advanced keyword search, concept or topic clustering, domain filtering, discussion threading and so on, that can and should be used together with predictive coding.

5. Based on your experience, do you have advice for others who may be looking to defensibly reduce the time and cost of document review with predictive coding technology?

The goal of the eDiscovery process is not perfection. At the end of the day, whether you employ a linear review approach and/or leverage predictive coding technology, you need to be able to show that what you did was reasonable and achieved an acceptable level of recall and precision. One of the things you notice with predictive coding is that as you review more documents, the recall and precision scores go up but at a decreasing rate. A key element of a reasonable approach to predictive coding is measuring your review accuracy using a proven statistical sampling methodology. This includes measuring recall and precision accurately to ensure the predictive coding technology is performing as expected. We’re excited to be able to deliver this capability to our clients out of the box with Clearwell, so they can make more informed decisions about their cases early-on and when necessary address concerns of proportionality with opposing parties and the court.

To find out more about Transparent Predictive Coding, visit http://go.symantec.com/predictive-coding

The tears of sadness shed by those in the eDiscovery community lamenting the end of the predictive coding debate in Kleen Products may turn to tears of joy when they realize that the debate could resurface next year. Despite early reports, the Plaintiffs in Kleen did not completely roll over on their argument that defendants should be required to use what they characterize as “Content Based Advanced Analytics” (“CBAA”). To the contrary, Plaintiffs preserved their right to meet and confer with Defendants about future document productions after October 1, 2013. Not surprisingly, future document productions could rekindle the fiery debate about the use of predictive coding technology.

The controversy surrounding Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al. was sparked earlier this year when Plaintiffs asked Judge Nolan to order Defendants to redo their previous productions and all future productions using CBAA. Among other things, Plaintiffs claimed that if Defendants had used “CBAA” tools (a term they did not define) such as predictive coding technology, then their production would have been more thorough. In June, I reported hearing transcripts indicated that 7th Circuit Magistrate Judge Nan Nolan was urging the parties to focus on developing a mutually agreeable keyword approach to eDiscovery instead of debating whether other search and review methodologies would yield better results. This nudging by Judge Nolan was not surprising considering at least some of the defendants had already spent considerable time and money managing the document production process using more traditional tools other than predictive coding.

In a new twist, reports from other sources surfaced recently, suggesting that the Plaintiffs in Kleen decided to completely withdraw their demands that Defendants use predictive coding during discovery. The news likely disappointed many in the electronic discovery space poised to witness a third round of expert testimony pitting more traditional eDiscovery approaches against predictive coding technology. However, any such disappointment is premature because those dreaming of an eDiscovery showdown in Kleen could still see their dreams come true next year.

On August 21, Judge Nolan did indeed sign a joint “Stipulation and Order Relating to ESI Search.” However, in the order the Plaintiffs withdrew “their demand that defendants apply CBAA to documents contained in the First Request Corpus (emphasis added).” Plaintiffs go on to stipulate that they will not “argue or contend that defendants should be required to use or apply the types of CBAA or “predictive coding” methodology… with respect to any requests for production served on any defendant prior to October 1, 2013 (emphasis added).” Importantly, the Plaintiffs preserved their right to meet and confer regarding the appropriate search methodology to be used for future collections if discovery continues past October of next year.

Considering the parties have only scratched the surface of discovery thus far, the likelihood that the predictive coding issue will resurface again is high unless settlement is reached or Defendants have a change of heart. In short, the door is still wide open for Plaintiffs to argue that Defendants should be required to use predictive coding technology to manage future productions, and rumors about the complete demise of predictive coding in the Kleen Products case have been exaggerated.