The ‘Not Me’ Factor

I’ve been skeptical of predictive coding for years, even before I wrote my first column on it back in 2005. Like most, I was reluctant to accept that a lifeless mass of chips and wires could replicate the deep insight, the nuanced understanding, the sheer freaking brilliance that my massive lawyer brain brings to discovery. Wasn’t I the guy who could pull down that one dusty box in a cavernous records repository and find the smoking gun everyone else overlooked? Wasn’t it my rarefied ability to discern the meaning lurking beneath the bare words that helped win all those verdicts? 

Well, no, not really. But, I still didn’t trust software to make the sort of fine distinctions I thought assessing relevance required. 

So, as others leapt aboard the predictive coding bandwagon, I hung back, uncertain. I felt not enough objective study had been done to demonstrate the reliability and superiority of predictive coding. I well knew the deep flaws of mechanized search, and worried that predictive coding would be just another search tool tarted up in the frills and finery of statistics and math. So, as Herb and Ralph, Maura and Gordon and Karl and Tom sung Hosannas to TAR and CAR from Brooklyn Heights to Zanzibar, I was measured in my enthusiasm. With so many smart folks in thrall, there had to be something to it, right? Yet, I couldn’t fathom how the machine could be better at the fine points of judging responsiveness than I am. 

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Source: Ball in your court 
By: Craig Ball

Insight versus Hindsight: the DLA Piper Billing Scandal

We’re all familiar with the old adage, hindsight is 20/20. The phrase has particular weight when applied to the DLA Piper billing scandal. As has been widely reported in the legal world, DLA Piper filed suit in 2012 against one of its clients, Adam Victor, and his company, Project Orange Associates, after he failed to pay $679,000 in fees incurred during a Chapter 11 bankruptcy filing. Victor felt the fees were egregious and refused payment. When DLA Piper produced 250,000 records for its suit, damaging and incriminatory emails were mistakenly included, which provided fodder for Victor to file a counter-claim against DLA Piper for overstaffing assignments and performing unnecessary tasks. The firm rejected a settlement agreement before the emails were produced and then faced a $776,000 lawsuit, which is the amount Victor paid in legal fees, and 1 percent of the firm’s 2012 revenues, or approximately $22 million.

Now that the case has been settled, there are some important eDiscovery lessons to be learned; the most important of which is that using data to provide insight into a legal matter is much more effective (and likely less costly) than using hindsight to determine how or if a legal matter should proceed. The DLA Piper matter underscores the importance of gaining a better understanding of the data associated with a case throughout the process, Often, organizations will look to reduce costs by cutting corners rather than utilizing the powerful capabilities of today’s technologies and established industry best practices. Had DLA Piper performed such activities as early case assessment (ECA) and early data assessment (EDA), detailed keyword searches, and comprehensive reporting for their own case, they would have had insight into their data that likely would have stopped them from filing suit(1) and protected their reputation.

Learning from Hindsight
The discovery ramifications of this case for not only DLA Piper, but also the industry as a whole, are going to be significant and wide-ranging. Clients of DLA Piper are inevitably going to question their own bills, as well as the ability of DLA Piper to perform eDiscovery on their behalf. If they failed in their own case, how can they be trusted to manage discovery for their clients? Courts that have seen cases from DLA Piper – as well as plaintiffs – might want to revisit past cases that involved ESI. The case will almost certainly shine a spotlight on discovery billing outside of DLA Piper, as well, and open up the process to scrutiny from clients. Clients will want much more detailed information on what was done, when, and by whom, making reporting and consistency even more important than ever.

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Source: Focused Discovery
By: Bob Krantz

No Sanctions For Failure to Preserve Where Deleted Call Recordings "would not have been supportive of Plaintiff's claim"

Cottle-Banks v. Cox Commc'ns, Inc., No. 10cv2133-GPC (WVG), 2013 WL 2244333 (S.D. Cal. May 21, 2013) 

In this putative class action, Plaintiff sought sanctions for Defendant’s failure to preserve potentially relevant customer call recordings. Although the court found that Defendant was negligent in its failure to preserve (and thus had the requisite “culpable state of mind”), no sanctions were ordered because the court concluded that the call recordings would not have supported Plaintiff’s case. 

In September 2010, Plaintiff filed her initial complaint alleging Defendant’s violation of the federal Cable Act by charging rental fees for cable converter boxes and/or remote controls that class members “did not affirmatively request by name.” In July 2011, Plaintiff filed an amended complaint, after her initial complaint was dismissed. 

Defendant’s customers ordered cable either over the telephone, in person at a retail location, or online. Some calls were recorded and used for quality control and training purposes, including calls related to cable, telephone, wireless and internet sales. Cable sales calls could not be separated without listening to the recordings themselves. Because of limited storage capacity and because Defendant did not have “a business need for calls older than 45 days,” the call recordings were automatically overwritten after that time. Every night Defendant created backup tapes of its “production servers” for disaster recovery purposes. The tapes were typically maintained for 30 days. 

In June 2011, Plaintiff sought production of customer call recordings and, through counsel, asserted that Defendant had failed to preserve those recordings and instead continued to “routinely” tape over them. Defendant’s counsel responded that the call recordings were “on a constant 45 day cycle” and that Plaintiff’s call recording was “long gone” before the case was filed. At that time, Defendant began preserving backup tapes containing call recordings which reached back as far as April 2011. Eventually, Defendant was ordered to produce a random selection of calls and ultimately produced 280 of them - only a small number of which were relevant to Plaintiff's claims. Of those, Plaintiff identified two that supported her claims. 

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Source: ediscoverylaw.com

Four considerations in selecting and implementing new legal holds technology

Corporate legal hold portfolios are growing, and employees are increasingly subject to multiple legal holds 

If your legal hold management is built on Microsoft Excel or Access and Outlook and you are thinking that there must be a better way, don’t worry, you are not alone. 

This will not surprise you. Corporate legal hold portfolios are growing, and employees are increasingly subject to multiple legal holds. Releasing recipients from a closed matter but maintaining them on other holds can be a logistical nightmare. In-house staff, responsible for issuing, tracking and managing the legal hold effort, is spending more and more time updating spreadsheets. The downstream result: increased potential risks for error and spoliation, and ultimately potential sanctions. 

Legal hold technology can allow corporate counsel to more effectively manage the legal hold effort, create a partnership with IT, make the legal hold lifecycle and process more efficient and can help to reduce risk. 

Initial Considerations 

If your company is considering evaluating legal hold technologies, first identify your internal business needs and requirements: 

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Source: InsideCounsel 
By: John D. Martin & Allan Crawford

Proposed Discovery Amendments Move to Public Comment

The Judicial Conference's Standing Committee on Rules of Practice & Procedure
approves for public comment the full slate of proposed amendments to the Federal Rules of Civil Procedure

With minimal discussion and no significant dissent, the Judicial Conference of the United States' Standing Committee on Rules of Practice and Procedure voted on June 3 to approve for public comment the full slate of proposed amendments to the Federal Rules of Civil Procedure that had been previously approved by its Advisory Committee on Civil Rules.

The most significant of the proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33 and 36; and, in Rule 37, adopt a uniform set of guidelines concerning the imposition of sanctions when a party fails to preserve discoverable information. Proposed amendments to Rule 34 would tighten the rules governing responses to requests for production of documents.

The package also includes changes to Rule 1, adding language to the text to emphasize that the responsibility to use the rules in order "to secure the just, speedy and expensive determination of every action" lies with the parties as well as the courts, and inserting comment language to encourage cooperation among parties in applying the rules.

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Source:  Law Technology News
By: Henry Kelston

E-discovery: Not as expensive as old habits

Remember “the good-old days,” when in retrospect the cost of document production was “modest” and of little object? Today, the litigation world is different. Electronically stored information has exploded production costs. But maybe the problem is not so much technology but our antediluvian habits from the “good-old-days” and blindness to new methods and technologies. 

For example, a huge litigation cost driver is e-discovery overcollection, but overcollection has three throwback causes and at least one neat modern solution. First, overcollection is first caused by the residue of discovery habits from the paper era; second, overcollection is caused by an irrational yet time-honored fear of sanctions; and third, overcollection is driven by an old-fashioned fear of data and software, prevalent among litigators. This is a potent, perfect storm that needs to be neutralized early in any case. The good news, discussed below, is that we now have a handy solution. But first, more on how we got to this deplorable state. 

First, overcollection is, in part, caused by bad habits from the days of old, when document discovery was paper-based. Out would go the request for production of any and all documents “related to, about, or concerning” a particular topic, person, or issue in the litigation. The producing party would then gather “all” the potentially relevant documents, and those collected documents would be reviewed, redacted, stamped, and produced. This recipe from an increasingly distant era cooks up a mess in the ESI world. In an electronic world, no longer are relevant documents neatly stored as paper reports, memoranda, and correspondence in files or neatly labeled file folders and cabinets. Now, electronically stored and relevant information is jumbled and disorganized, and often haphazardly dropped into a number of storage locations. When you start collecting these entire locations to sequester and corral the relevant ESI, the volume of collected data becomes enormous while the percentage of relevant documents simultaneously dwindles. The rest is often the horrifying cost associated with tales of e-discovery gone wrong. 

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Source:  InsideCounsel 
By: William F. Hamilton

Are Keywords Just Filters?

When counsel hammer out agreed search terms, does that define the process? 

Is keyword search a filter prefatory to review or a proxy for review? It's a question you'll soon face. 

When counsel hammer out agreed search terms and queries to run against electronically stored information, requesting parties often expect that any responsive item (that is, all "hits") must be produced unless withheld as privileged. 

Put another way, requesting parties frequently believe that by agreeing to the use of a set of keywords as a proxy for attorney review, those agreed searches serve as a de facto request for production and define responsiveness per se, requiring production if not privileged. 

That stance upsets producing parties, triggering reactions such as: 

• "We always have the right to review items hit for responsiveness!" 
• "Requests for Production, not keyword hits, define scope of discovery!" 
• "Nothing in the rules or the case law requires us to produce non-responsive items"

Expletives omitted] Perhaps, but there's sufficient ambiguity surrounding the issue to prompt prudent counsel to address the point explicitly when negotiating keyword search protocols and drafting memorializing agreements. Different expectations flow from different incentives behind agreements to confine the scope of search using queries and keywords: 

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Source: Law Technology News 
By: Craig Ball

Opinion Highlights Questions Surrounding Proper Predictive Coding Protocols

Gordon v. Kaleida Health, No. 08-CV-378S(F), 2013 WL 2250579 (W.D.N.Y. May 21, 2013) 

In this case, the court considered Plaintiffs’ motion “to compel Defendants to meet and confer with respect to establishing an agreed protocol for implementing the use of predictive coding software” and for an order that if the parties could not agree on an ESI protocol, that each side would submit their proposal for the court’s determination as to which should be adopted. Although Defendants initially objected to meeting and conferring with Plaintiffs and their experts based on Plaintiffs’ expert’s prior work for Defendants in the same case, the issue was ultimately resolved when Defendants indicated they were prepared to meet and confer (perhaps motivated by the court’s denial of their motion to disqualify Plaintiffs’ experts). Despite the relatively simple resolution of Plaintiffs’ motion to compel, the parties’ arguments raised interesting questions related to the level of cooperation required when one side has chosen to utilize predictive coding. 

After attempting to agree with Plaintiffs on a keyword search protocol, Defendants decided to utilize predictive coding after the court directed the parties’ attention to the recent decision in Da Silva Moore v. Publicis Groupe SA, 287 F.R.D. 182 (S.D.N.Y. 2012), in which predictive coding was approved by the court. Thereafter, Defendants provided Plaintiffs with their ESI protocol and indicated they would also provide a list of their email custodians. Plaintiffs objected to the protocol and noted several issues which they thought should be discussed “with the assistance of Plaintiffs’ ESI consultants and cooperatively resolved by the parties” before Defendants’ predictive coding efforts were initiated. Several days later, Plaintiffs filed their motion to compel Defendants to meet and confer. 

Plaintiffs contended (citing Da Silva Moore) that “where a party intends to utilize predictive coding to assist in the review and production of ESI, it is necessary that the parties negotiate a protocol to guide the use of predictive coding software for the case” and argued that Defendants refused to meet and confer with the parties’ respective experts to discuss several issues “important to a cooperatively negotiated ESI protocol needed for this case.” More specifically, Plaintiffs maintained that Defendants’ position—“that the only issue they need to discuss with plaintiffs . . . is custodians”—“exluded[ed] Plaintiffs’ access to important information regarding Defendants’ selection of so-called ‘seed set documents,’” used to “train” the computer for predictive coding. 

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Source: ediscoverylaw.com

Technology-assisted review case law summary

A growing body of legal and scientific scholarship confirms TAR’s superiority over traditional means of review

More than a year ago, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York issued the first judicial opinion recognizing technology-assisted review (TAR), also referred to as predictive coding or computer-assisted review, as a legitimate discovery tool. Since that opinion, several other cases have demonstrated that not only do courts welcome (or even demand) the use of TAR, but requesting parties may prefer (or demand) that producing parties use it to identify electronically stored information (ESI) for production.

Moreover, there are no reported cases holding that TAR is an illegitimate means of document review, while at the same time a growing corpus of legal and scientific scholarship confirm its superiority over traditional means of ESI review, such as keyword searching and manual linear review. As the cases discussed below suggest, where the results of the application of TAR can be validated satisfactorily through statistical testing, there is no reason to doubt the completeness of the document production.

The first widely discussed case indicating judicial recognition of TAR as a legitimate means of performing a document review was Magistrate Judge Peck’s ruling in Da Silva Moore v. Publicis Group & MSL Group. In Da Silva Moore, a gender discrimination action, the plaintiffs stated that they were not opposed to defendants’ use of TAR, but rather had “multiple concerns…on the way in which [defendant MSL] plan[ned] to use employ predictive coding.” Specifically, the plaintiffs objected to the defendants’ selection of custodians whose emails would be searched and the phasing of discovery from those custodians. They also differed with the defendants on which sources of ESI the defendants should be required to search. The parties submitted differing protocols to the court indicating how these and other ESI discovery issues should be resolved.

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Source: InsideCounsel
By: Adam Cohen

6 practical tips for e-discovery on Macs and other Apple products

Apple’s operating systems store data differently than Windows does

Recently, I asked Siri, the intelligent personal assistant on Apple’s iOS system, how to conduct e-discovery on data generated on an Apple device. Although polite, she was confused (she still did not understand even after I explained that I was asking about “data,” not a “dad egg”). After apologizing for not answering my question, she offered to search the Web.

In fairness to Siri, it is a quandary: Even mobile forensic investigators are challenged as to how to view encrypted email and data on the latest generation of Apple mobile devices. But it is a question that the legal community is asking more often with the proliferation of Mac computers, iPhones, and iPads in the workplace. As of January 2012, almost half of all companies with 1,000 or more employees used Macs and planned to increase their use by 52 percent by the end of 2012, according to Forrester Research. The challenges of accessing data are further complicated by bring-your-own-device (BYOD) enterprise environments that give employees the flexibility to use personally-owned devices to connect to the corporate network for some IT services, such as email.

This proliferation presents a pesky problem to persons tasked with conducting e-discovery. The trouble is that Mac data is inherently different from Windows data. Because Mac data uses a unique file system with different file types and structures from Windows, it is impossible to review Mac data using a Windows-based system and retain original metadata and native review; a Windows-based system will have to interpret the data, potentially jeopardizing the metadata with significant errors, such as altered dates and file names.

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Source: InsideCounsel 
By: Randall Burrows

AIIM: Enterprise Content Management at a Crossroads as Content Chaos Reigns

The Enterprise Content Management (ECM) space is shifting again. Research just published by AIIM shows that enterprises are still looking for a one-system-fits-all approach, even if the evidence shows that information consumers are accessing data in numerous ways that traditional ECM deployments are finding difficult to cope with. Content chaos, it seems, still haunts enterprises.

ECM Now
The findings are contained in the AIIM annual industry watch report that appears this year under the title ECM at the Crossroads and poses the questions as to where ECM vendors should be directing themselves and what technologies they should be developing.

It’s not new for ECM vendors to find themselves in this kind of quandary, after all it has changed radically in the past 10 years since it first really rooted itself in the enterprise. In that ten year period, the report says, ECM has moved from being a tool, or set of tools, used locally to capture and manage documents to something that is now being used to push content out to mobile devices, to collaborative platforms, to all corners of the enterprises, and even beyond the firewall.

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Source: CMSWire
By: David Roe

Keywords and Search Methods Should Be Disclosed, But Not Irrelevant Documents

A common question these days between most lawyers discussing e-discovery is: What Keywords Did You Use? This is often followed by I’ll show you mine if you show me yours. Often this latter statement is made out of a bona fide spirit of cooperation, typically in cases where:

1. both sides had too much ESI to search manually;
2. they culled using simple keyword technology either because that is the only search they knew how to do, or they did not deem more advanced predictive coding technology to be appropriate for that case; and,
3. the attorneys knew how to cooperate to get discovery done without spending too much money.

In these cases attorneys freely exchange the final keywords they used. There is no wasted breath or valuable client dollars spilled over the question.

Only rarely would attorneys in this symmetrical position not only want to know the keywords finally chosen, but also the keywords, parametrics, Boolean logic, etc., tested and rejected along the way. If they asked for a list of all the keywords ever tested, the proper response is no, or in my case, no such list exists, and I can’t recall, but there were quite a few. They might want to ask whether you tried this, that, or the other keyword. That’s fair, and an expert searcher would probably say, yes, I tried all of those early on, and they were all rejected because (fill in the blank). Alternatively, they might say to one or more of the suggestions: No, I didn’t think of that one, but I’ll check on it later today. It’ll just take a minute to try it out, and then I’ll get back to you on that.

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Source: e-discoveryteam.com  
By: Ralph Losey

Technology: The ugly side of social media

A recent case concerning the famous Coyote Ugly Saloon highlights the need for policy implementation

Social media has become a tangled web of personal and business communications. Social media sites such as Facebook and Twitter originally contained personal matters, but now they have become a must-use vehicle for company public relations. Sixty-six percent of Fortune 500 companies have Facebook pages, and more than 70 percent have a Twitter account. Woe to the company that lacks a presence on Facebook, Twitter, LinkedIn or the like, lest the masses be left alone to shape the company’s message or public image.

Companies also actively encourage their employees to engage in social media, treating that engagement as a pro-business opportunity. The logic is simple: The more positive interactions people have with a company’s name in social media, the more likely they are to have a positive view of that company in the business world. Through employees, businesses can communicate directly with customers in a way never before possible, introducing advertising messages, new products and services, and other critical information in a highly effective and personal way.

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Source: InsideCounsel
By: Jake Koering

Case Update: For Spoliation, Court Orders $250,000,000 "to be applied as a credit against Rambus's [$349 million] judgment against SK hynix"

SK Hynix, Inc. v. Rambus, Inc., No. C-00-20905 RMW, 2013 WL 1915865 (N.D. Cal. May 8, 2013) 

In this ongoing patent infringement action, a major question has been whether Rambus’s destruction of documents constituted spoliation and, if so, what sanctions should be imposed. Different courts considering the same facts (but involving different plaintiffs) came to different conclusions. Upon its initial consideration of the question, the district court in the Northern District of California determined that “Rambus had not spoliated documents” and that there was “no factual basis for an unclean hands defense” as asserted by SK hynix. (See summary here.) A jury subsequently returned verdicts in favor of Rambus and the court therefore “entered final judgment of infringement with respect to ten Rambus patent claims” and awarded judgment of “$349,035,842 after a remittitur plus prejudgment interest, and required SK hynix to pay specified royalties to Rambus on an ongoing basis.” A district court in the District of Delaware (in a case involving Plaintiff Micron Technology, Inc.) disagreed, however, and found that sanctions were warranted for Rambus’s spoliation of documents. (See summary here.) The court therefore declared the patents in suit unenforceable against the plaintiff in that case. 

Upon appeal (of both cases) to the Federal Circuit, the court addressed the competing holdings of the two cases and affirmed the findings of the Delaware court that Rambus had engaged in spoliation. (See summary here.) The district court in California was therefore instructed to reconsider the question of spoliation in accordance with the relevant analysis in the Delaware case. Upon remand, the district court in California concluded that Rambus had committed spoliation and determined that the appropriate sanction was to “strike from the record all evidence supporting a royalty in excess of a ‘reasonable and non-discriminatory royalty.’” (See summary here.) Thus, the parties were ordered to submit briefing on the question of what a reasonable, non-discriminatory royalty rate would be. 

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Source: ediscoverylaw.com

Key Considerations for Deploying E-Discovery Software in the Cloud

As compared to a decade ago, organizations have a number of deployment options for their technology investments. No deployment trend has garnered more attention in recent years than the advent and soaring popularity of cloud computing. The cloud offers organizations a degree of scalability, cost efficiency and "pay-as-you-go-pricing" desired in today's tenuous economic climate. 

Traditionally, e-discovery software has been deployed in an organization's infrastructure behind the firewall. As with other enterprise-class software, organizations are now demanding additional deployment models to meet their specific requirements. In fact, some have adopted a "cloud-first" strategy, meaning that much of the organization's electronically stored information (ESI) is being stored in the cloud. 

However, because e-discovery—and the technologies that support it— is subject to sensitive legal risks and technical complexities, selecting the optimal deployment model is not always as straightforward as might first appear. 

Following are five key criteria knowledge workers, in conjunction with IT and legal, should consider in deciding which e-discovery software deployment method is right for their organization: 

1. E-Discovery Process(es) that Need to be Supported 

The legal requirements surrounding e-discovery are generally well understood. From a technical standpoint, however, e-discovery is a complex, multi-faceted endeavor involving a bevy of variables. For this reason, deciding whether to deploy e-discovery software in the cloud depends largely on the organization's overall cloud strategy and the e-discovery process(es) that need to be supported. The Electronic Discovery Reference Model (EDRM) defines nine distinct processes, starting with information management, identification and preservation and progressing through collection, processing, analysis, review, production and presentation (in court). 

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Source: KMWorld 
By: Ted Gary