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Tom O'Connor

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Five

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Thursday, part three was Monday and part four was Wednesday, here is the fifth and final part.

Conclusions

Finally, I asked several of our stalwarts to address the questions I posed back in the Introduction to this article.

With regards to the question “Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?”, Craig said:

“Plaintiffs mistakenly assume they don’t have anything to preserve, process and search.  They often have much more than counsel appreciate yet lack wherewithal to deal with it.  Plaintiffs’ lawyers who fail to bring the same diligence and skill they demand from the defense to their own client’s data are easy targets for costly do-overs and serious sanctions.  Defense counsel often harbor the same mistaken assumptions about asymmetry and fail to exploit this pressure point.  That luck won’t last, so plaintiffs’ lawyers better get on the stick when it comes to defensible legal holds, collection, processing and review.”

Craig had also addressed the question “Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources?  Or does it depend on the type of plaintiff?” with his comments on shortsightedness by saying:

“… plaintiffs’ lawyers tend to rashly agree to almost anything to get something.  They accede to bad protocols, shoddy searches and dumbed-down forms of production by being in too big a hurry to get their hands-on production and start taking depositions.” 

With regards to the question “Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?”, all our experts agree that plaintiffs want native files more than defendants because they want the original metadata while defendants are far more likely to already have invested substantial sums in database technology into which they have loaded their data and can use that to screen their productions.

Lastly, with regards to question “Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting?  Should there be a model for requesting parties?”, our experts felt it leaned towards a defense model not because it was more focused on producing then presenting, but because the people who first originated it and later promoted it were defense oriented so that was their natural inclination.

A larger problem for plaintiffs’ attorneys beyond the EDRM focus is changing their paradigm from documents to data. As Craig Ball noted:

“Plaintiffs’ lawyers are hamstrung by paper presumptions unsuited to a digital universe. Lacking insight into modern information systems, they don’t know how to fight back like coders instead of cavemen.  So, they flail and whine that the production ‘just feels like it should be more’ without being able to articulate why and how or produce evidence to support their motions – crucially lacking the ability to educate the bench and secure relief.  Plaintiffs get run over roughshod trying to argue what they need to prove.”

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Tuesday, after the Memorial Day weekend.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday, part two was last Thursday and part three was Monday, here is the fourth part.

Lack of Competence Challenges

The next most popular choice for plaintiff eDiscovery pain points was lack of competence. This point was reflected in several different ways. Craig Ball stated it most directly when he called it “the big one” and noted the failings in the Plaintiffs’ bar by saying:

“Plaintiffs’ lawyers have been slow to integrate eDiscovery into their practices, so few plaintiffs’ lawyers are conversant in the argot and processes of eDiscovery.  This isn’t a slam.  Defense lawyers can call on resources unavailable to plaintiffs’ lawyers.  A defense firm will have an eDiscovery specialist or practice group to guide them and may be able to draw on resources supplied by an insurance carrier or the client’s IT staff and the client’s in-house eDiscovery workflows, tools and teams.  How many plaintiffs’ lawyers can responsibly delegate eDiscovery to their clients?  How many have eDiscovery specialists as full-time staffers?”

But clearly, he felt the Plaintiffs’ bar wasn’t picking up the slack in those shortcomings by becoming ESI proficient themselves. As he put it, “The answers are out there; but they’re not going to find the lawyers.  The lawyers have to look for them.”

Bob Eisenberg also felt it was an often-overlooked problem with the defense side, calling it a “… lack of eDiscovery expertise and interest …”

The answer tied most closely to competence was lack of tools and/or training.  Bob linked it to his answer on competence, saying that the lack of competence:

“… results, in many instances, in a failure to deploy, on an in house basis (as opposed to transactionally), necessary eDiscovery technical tools and over-reliance on outside expertise which can result in unnecessarily costly services when eDiscovery is required and problems arising from little or no in house expertise to oversee and assure both the validity and cost-efficiency of eDiscovery.”

Craig was quite specific as to the reason this was an issue when he termed it this way:

“Virtually no one offers eDiscovery training geared to the scale, needs and resources of plaintiffs’ lawyers. The Willie Sutton Rule applies.  Service providers, CLE providers, software developers, all tend to go where they think the money is, being the big firms and big corporations.  Providers shy away from plaintiffs’ lawyers out of fear of being blackballed by corporate clients and, understandably, because plaintiffs’ lawyers need more handholding and support.  Too, the collection, processing and review tools on the market are frequently priced out-of-reach to the solo and small firm practitioner and geared to the needs of producing parties.  Without tools and foundational training to explore ESI, plaintiffs’ lawyers can’t get closer to competence.”

The issue of protocols did have several mentions and was specifically called out by Jean and Drew.  Jean felt that too often protocols were misused, often being conflated with confidentiality or protective orders. Drew went even further and said that agreeing on an exchange protocol was too often “…like birthing a baby..”.

Ariana referenced the issue when she noted as her second issue “Data dumps in various formats without explanation or corresponding load files, select metadata, OCR, etc.”

For specific issues by an expert, Bob referred to a lack of understanding of their own internal IG systems by many defense counsel. Craig addressed what he called “shortsightedness” by Plaintiffs, which he described as their strong belief that “… if only they can get to the defendants’ ‘documents,’ they can make their case and prevail. But as he goes on to say, “It’s not documents so much anymore; it’s data”, an observation clearly related to the competence issue.

Finally, Ariana bemoaned: “Inexperienced lawyers who choose not to reach out to those who have the experience, acumen, and wherewithal to go toe to toe with the opponent (especially if the opponent is sophisticated and/or is using a reliable service provider) will find themselves at a serious disadvantage.”

We’ll publish Part 5 – Conclusions – on Friday.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday and part two was last Thursday, here is the third part.

Cooperation Challenges

Now let’s turn to some of the individual responses.  As I mentioned in part two, the most popular choice for plaintiff eDiscovery pain points was cooperation. Bob Eisenberg, like several others, had an answer that bordered on the protocol issue, saying that:

“… there is, it seems, frequently, an almost cavalier attitude to understanding eDiscovery technical aspects and a lack of necessary skills in connection with the subject of forms of production, for instance. This sometimes extends to eDiscovery jurisprudence, as well and leads to inefficiencies and lack of defensibility in the production of ESI.”

Drew had a similar response in saying that the lack of cooperation was often manifested in a “hard line attitude” with a common approach by defense teams of saying that their proposal was an  “…industry preferred standard” with no room for negotiation or, alternatively, wrangling over minutiae of details such as metadata or load file separators.

Both Jean and Ariana mentioned the example of a repeated insistence on the use of search terms in the blind by Defense teams. As Ariana stated,

“Application of search terms that are unilaterally selected by and applied by opponent with production that follows without QC/validation/testing and then the inevitable erected proportionality argument by the opponent that it need do no more.”

Craig had an interesting response that seemed to address cooperation so I counted it there, when he said that,

“As well, plaintiffs’ lawyers do an abysmal job of drafting requests with the specificity and precision needed to forestall successful proportionality objections.”

Finally, both Craig and Drew had an answer that addressed motion practice, Craig with his reference to the ongoing use of outdated boilerplate pleadings by both sides and Drew with his comment regarding “an increased focus by Defense teams on arguing ‘discovery about discovery’ motions, especially with regard to 30(b)(6) depositions.”

We’ll publish Part 4 – Lack of Competence Challenges – on Wednesday.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was Tuesday, here is the second part.

Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys

With regard to my question regarding the top 3 pain points in plaintiffs’ eDiscovery work, I thought that the most common answer or problem would be something technical such as exchange protocols and/or load files.  But the clear winner was actually cooperation. The issue of protocols came in behind that along with competence, followed by lack of tools.  After that each of the people responding had an answer somewhat unique to themselves.

Here are the actual answers from each of the experts regarding the top 3 pain points for plaintiffs:

  • Craig: Short Sightedness, Competence, No tools/training
  • Bob: Cavalier Attitude, No knowledge of IG, Lack of tools
  • Drew: Cooperation, Protocols, Motion practice
  • Jean: Producing party issues, Protocols, Search terms
  • Ariana: Competence, Data Dumps, Search terms

Before I look at each of the responses, I should note that Craig Ball had a very insightful overview about the general differences between plaintiff and defense firms in eDiscovery.

“The challenges faced by plaintiffs’ lawyers confronted by eDiscovery flow from structural differences in practice.  Plaintiffs’ lawyers operate as small firms and solos who finance their cases and are compensated on contingency.  So, plaintiffs’ lawyers tend toward frugality (as they are spending their own money) and shy away from capital expenditures that cannot be reliably expensed against the matter. Plaintiffs’ lawyers tend not to possess (or need) the costly in-house IT operations of large defense firms and, crucially, plaintiffs’ lawyers don’t have large support staffs for IT and litigation support because the cost of same can’t be spread across hundreds or thousands of lawyers.”

“Without in-house eDiscovery teams at the ready, plaintiffs’ lawyers are more apt to “wing it” or seek expertise only when obliged to do so on an ad hoc basis.”

We’ll publish Part 3 – Cooperation Challenges – next Monday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held tonight(!) at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets – it’s not too late!  You can even buy tickets at the door!  And, remember, it’s for a great cause.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Approximately 2/3 of my consulting practice revolves around issues with ESI production. Much of that work involves asymmetrical cases where one side, typically corporate defendants, has the vast majority of discovery. And since my experience is not untypical, what we see in eDiscovery practice is a heavy focus in the eDiscovery world on defense strategy, both in actual practice and educational conferences.

But what about strategy for the Plaintiff’s bar? Do they have different even dramatically different needs simply because they have less ESI?  In discussing this article, I was asked the following questions which we will consider below:

  • Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?
  • Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources? Or does it depend on the type of plaintiff?
  • Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?
  • Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting? Should there be a model for requesting parties?

To research this issue, I decided to begin by asking several attorneys with Plaintiffs’ side experience, past and present, the following question, “What would you say are your top 3 pain points in plaintiffs’ eDiscovery work?”

My query went to the following attorneys:

  • Craig Ball, well known consultant, ESI expert, Special Master, former plaintiffs’ attorney and author of the Ball in Your Court blog;
  • Ariana Tadler, Managing Partner at Milberg Tadler Phillips Grossman LLP & Founding Principal at Meta-e Discover
  • Bob Eisenberg, Director, eDiscovery & Information Governance at Larson Security LLC and Program Director at the Cleveland-Marshall College of Law (CMLaw) eDiscovery Professional Certificate Program
  • Drew Ashby, Wrongful Death and Catastrophic Injury Trial Attorney at The Cooper Firm
  • Jean Martin, head of the Morgan & Morgan Complex Litigation Group in Wilmington, North Carolina

In this paper, we will take a look at their responses and comments regarding the biggest eDiscovery challenges facing plaintiff’s attorneys, as follows:

  1. Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys
  2. Cooperation Challenges
  3. Lack of Competence Challenges
  4. Conclusions

We’ll publish Part 2 – Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys – on Thursday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held this Thursday, May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Why Does Production Have to be Such a Big Production?, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was last Monday, part two was last Wednesday and part three was last Friday, here’s the fourth and final part.

Recommendations for Minimizing Production Mistakes

Shawn Huston says,

The most beneficial step that any attorney can take is to talk through the production protocol and specifications prior to even collecting any data. Discuss the pros and cons of the proposed production format and what processing steps will be required to meet the protocol.

This should also include the cost of performing the tasks so there are no surprises to the client’s budget. The benefit to having the discussion prior to the time the production is due is that there may be steps that are necessary early on in the process to adequately provide the requested format, or ways to reduce cost.

Finally, the time it takes to set-up, convert to the appropriate format and export the final deliverable is vastly underestimated. The timing should be discussed with your litigation support team, whether in-house or at a service provider, so realistic expectations can be set and proper time set aside for quality control steps.

I like to start by asking did your production problem begin at the processing stage, which makes it a machine generated issue or did it happen post-processing, which is more often a human failing.

Virtually every tech expert I spoke with said redaction should be done by a tool that allows users to burn a permanent black box into an image or text.  Unless you’re redacting paper, then they recommend a good pair of scissors.

My last tip? Get documents produced in native format and forget all about load files.

No, wait, one last tip.  Get a Rule 502(d) Order. It protects against careless or otherwise inadvertent disclosure. As Judge Peck (I know, he’s off the bench now but he’ll always be a judge to me… it’s a New England upbringing thing) once said “in my mind, there is no downside to having such an order” and it may even be malpractice not to get one.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Why Does Production Have to be Such a Big Production?, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was Monday and part two was Wednesday, here’s the third part.

Load File Failures

Problems with productions have plagued us for years and none are more prevalent than load file errors. I recall a consultant in Seattle nearly 20 years ago who spent 2/3 of his times cleaning up Summation load files for clients. And the problems haven’t decreased as technology has improved.

Shawn Huston of LSP Data Solutions ( www.lspdata.com) recently told me that 2/3 of the load files he sees in productions have errors. Why? Remember my previous comment about communication? Shawn says that:

One of the biggest issues I see is parties agreeing to production specifications without understanding what they are agreeing to. A classic example is the more technologically sophisticated party requesting tiff, text and load files as a production format and the other party agreeing without realizing what that means and the process necessary to do it correctly.

We also frequently see productions that don’t have the corresponding metadata fields to aid in filtering and searching the production sets, but then counsel becomes frustrated when they can’t accurately search for dates, recipients, file names or other useful metadata fields.

So, what seems to be the problem?  Well once again let’s turn to eDiscovery Grand Master Craig Ball for an explanation. In his wonderful 2013 article, A Load File Off My Mind, which is as relevant today as it was then, Craig explains that:

More commonly, load files adhere to formats compatible with the Concordance and Summation review tools.  Concordance load files typically use the file extension DAT and the þ¶þ characters as delimiters, e.g.:

Concordance Load File

Just as placing data in the wrong row or column of a table renders the table unreliable and potentially unusable, errors in load files render the load file unreliable, and any database it populates is potentially unusable.  Just a single absent, misplaced or malformed delimiter can result in numerous data fields being incorrectly populated.  Load files have always been an irritant and a hazard; but, the upside was they supplied a measure of searchability to unsearchable paper documents.

What are some common load file errors?

Mismatched line numbers: Each line in a load file corresponds to a single document. Thus, the number of lines in a load file must match the number of documents being imported. If they do not match, a common cause is an extra line break in the load file.

Field Formatting Errors:  Mismatched date formats (1/1/19 vs Jan 1 2019) and field length, that is a field in the database structure is only 6 characters long but the data being loaded is longer than that

Delimiter errors:  Comma and semi-colon are commonly used delimiters but if a comma appears in some text being loaded …say “Apple, Inc”, it may be interpreted as a delimiter in the wrong place.  Pipes ( a vertical line) are an excellent example of a once common delimiter which can be read as another instruction by some SQL and .Net databases.

Encoding: Some programs prefer a certain background computer language. Many older databases for example preferred Unicode Standard (UTF-1, UTF-7, UTF-8, UTF-EBCDIC, UTF-16, UTF-32) or ASCII. Importing data from a database that is not consistent with the database you are using may lead to problems.

Other load file problems that may occur include:

  • Overlaps with document or Bates numbers: Documents that come from different sources in a case may have Bates numbers that are repetitive or have some portion of their sequence that overlap with each other.
  • Page number difference: The number of pages in the load file may differ from the actual page count of the document images themselves, typically because of single page vs multi page image discrepancies.
  • Uploader at incorrect stage: An error message that the loading process is not working smoothly, usually when the screen display shows that you are on one step of the upload, but the uploader recognizes it’s actually on the next stage.
  • Timeouts on reading data error: The upload has stopped, either because of an internal issue or an interruption in internet connection.
  • Encountered non-separator: Typically a typo in the load file and the load has stopped.
  • Multiple native files: Multiple files with the same name as a document present in the native path, often a native file and an image file with the same name.
  • Conflicts with a previous loaded image: The load file is pointing to multiple images for the same document page and the conflict must be resolved.
  • Error with image reader: Usually means that the uploader could not read the image file.
  • Error finding load file or directory: Most often occurs when the user is trying to upload from a network but the upload tool is either defaulting to a local drive or the user doesn’t have rights to the network.

We’ll publish Part 4 – Recommendations for Minimizing Production Mistakes – next Monday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Why Does Production Have to be Such a Big Production?, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was Monday, here’s the second part.

Redaction Issues and Confidentiality Considerations

One of the most common technical mistakes lawyers make involve issues with redactions – there are frequent stories that make the news regarding lawyers publishing documents that were improperly redacted.  Redaction issues are also the most common error in document productions in eDiscovery as well.  There are a variety of issues associated with redactions and they have considerable impact on a lawyer’s ethical duty to confidentiality.  Let’s take a look.

Image Redaction Issues

Some of the more common mistakes I see involve redaction issues on images. And they go back years. In 2009, the TSA released a manual on the Internet that had not been redacted properly. In 2013, a Chicago lawyer was reprimanded when he failed to ensure that personal information was redacted in federal student loan collection actions he filed on behalf of the U.S. government.

In 2014, a Kentucky lawyer received a public reprimand for, among other misconduct, failing to redact his client’s social security number in bankruptcy filings he made on her behalf. Also in 2014, The New York Times reportedly failed to properly redact a PDF file of leaked National Security Administration documents and inadvertently released the name of an NSA agent.

In 2018, a reporter investigating an SEC settlement with alleged fraudsters downloaded from the federal PACER database an affidavit from one of the defendants in the matter. The PDF file contained about 100 pages of financial transactions that were blacked out in the PDF file. But when the affidavit was copied and pasted into another application’s text file for uploading, the black redaction boxes vanished, revealing all the private financial information that was supposed to be hidden. A clerk at the federal courthouse where the document in question was filed said that the party filing the document was responsible for ensuring that it was properly redacted.

Also, in 2018, the school district in the Parkland, Florida high school shootings case, apparently didn’t properly redact a document regarding the alleged shooter, which contained confidential information about him.  A Florida newspaper reported that the method used “made it possible for anyone to read the blacked-out portions by copying and pasting them into another file,” which the newspaper did — drawing a contempt threat from the judge presiding over the criminal case.

More recently, lawyers for President Trump’s former campaign chairman, Paul Manafort, apparently failed to redact a federal court document properly, permitting the blacked-out text to be viewed “with a few keystrokes.”

Clearly, redaction issues on images are common. Common mistakes here include:

  1. Failing to “burn-in” the redaction on the image
  2. Not updating or re-OCRing the text files to match
  3. Providing un-redacted native files
  4. Failing to redact certain metadata
  5. Improperly using redaction software

Other Redaction Issues

The last point above involves issues for documents that have been generated in a software and then either converted or printed before redaction.

The most common type of conversion involves saving a word processing document to PDF. How do you best handle redactions in that process? Here’s a few tips:

  1. Edit out sensitive information BEFORE converting.
  2. Be aware of any metadata that may carry into the PDF file. PDF conversion deletes MOST metadata but some may transfer (eg, Comments in Word)
  3. Use non-text PDF … image only
  4. Use the most current version of Adobe

Sometimes redaction involves paper. Hard to believe but true.  Some attorneys still use a dark marker to manually cover over confidential information. Much like the Manafort case mentioned above where a simple color change in an electronic document didn’t completely hide text, using a marker on paper may also fail.

In a 2015 article, “The Perils of Redaction: Simple Steps to Protect Confidential Information,”, Mark Crandley, a partner in the litigation department of Barnes & Thornburg in Indianapolis, wrote that  “many scanners are sensitive enough to perceive covered words even when the naked eye cannot.”

Confidentiality

Lawyers have an ethical duty to preserve clients’ privileges and property. So, aside from risking potential civil liability, lawyers also could face disciplinary action when they fail to properly redact court documents. Lawyers who fail to properly redact information in confidential documents could run afoul of the American Bar Association’s rule on safeguarding client property, which has been adopted by most states.

We’ll publish Part 3 – Load File Failures – on Friday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Why Does Production Have to be Such a Big Production?

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Understanding Blockchain and its Impact on Legal Technology, which we covered as part of a webcast on March 27.  Now, Tom has written another terrific overview regarding production challenges and what to do about them titled Why Does Production Have to be Such a Big Production? that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

The aim of document productions in the ESI world is succinctly stated by the EDRM: To prepare and produce ESI in an efficient and usable format in order to reduce cost, risk and errors and be in compliance with agreed production specifications and timelines.  https://www.edrm.net/frameworks-and-standards/edrm-model/production/

Discussions of a “database production” typically refer to a collection of ESI loaded into e-discovery software in a form other than its native (original) format.  As a result, a load file may be necessary to organize and maintain original information about the documents and accompanying metadata. We’ll talk about those problems in more detail below but let’s be clear that production problems may revolve around other issues beyond load files.

So, why is this happening? Well the first reason is because it is an issue involving technical components and lawyers, who, by and large, simply aren’t good at technology. But lest we blame it all on the lawyers, let’s keep in mind that tech people don’t make good legal analysts. And neither of them are good communicators when it comes to technical issues so the potential for problems during productions is enormous.

DIY eDiscovery company Lexbe has listed 10 common reasons for production failures:

  1. Being unaware of the rules (FRCP/state/local)
  2. Neglecting to match review requests with your review approach
  3. Not knowing the common file deliverables in productions
  4. Missing the opportunity to use ‘Meet & Confer’ (Rule 26) to your advantage
  5. Failing to Request specific file types & metadata as needed
  6. No custodian tracking causing deduplication nightmares
  7. Not Addressing placeholders, databases, and unusual file types
  8. Negotiating incomplete discovery orders in complicated cases
  9. Stepping into redactions traps
  10. Decreasing privilege review accuracy by failing to apply Near Dup checks

In this paper, we will look at a couple of the most common issues associated with productions and discuss recommendations to minimize production mistakes:

  1. Redaction Issues and Confidentiality Considerations
  2. Load File Failures
  3. Recommendations for Minimizing Production Mistakes

We’ll publish Part 2 – Redaction Issues and Confidentiality Considerations – on Wednesday.

So, what do you think?  Have you experienced problems with document productions in eDiscovery?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Understanding Blockchain and its Impact on Legal Technology, Part Six

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Will Lawyers Ever Embrace Technology?, which we covered as part of a webcast on November 28 of last year.  Now, Tom has written another terrific overview regarding blockchain and legal technology titled Understanding Blockchain and its Impact on Legal Technology that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into six parts, so we’ll cover each part separately.  Part one was last Monday, part two was last Wednesday, part three was last Friday, part four was this Monday and part five was this Wednesday, here’s the sixth and final part.

Conclusions

So, where do we go from here from a legal technology standpoint?  Let’s take a look at some current developments.

Current Developments

Much of the momentum that I saw gathering at ILTACON17 led to the establishment of the Global Legal Blockchain Consortium. Members of the consortium include the law firms Baker Hostetler and Orrick, as well as IBM Watson Legal. Their goal is to explore how blockchain technology can solve real-world legal problems as well as drive the adoption and standardization of blockchain in the legal industry.

The consortium is not the only such effort. The Enterprise Ethereum Alliance (EEA), a cross-industry collaborative blockchain consortium aiming to leverage open-source Ethereum technology for enterprise solutions, has a” Legal Industry Working Group”. Members of that group include CooleyDebevoise & Plimpton, GoodwinHogan LovellsHolland & KnightJones DayLatham & WatkinsMorrison & FoersterPerkins CoieShearman & SterlingCardozo Law School, Duke Center on Law & Technology, and the Department of Legal Studies and Business Ethics at the University of Pennsylvania’s Wharton School.

The consortium held a kick-off event called the MIT Legal Forum on AI + Blockchain in the fall of 2017. Although that effort appears to have slowed in 2018, ongoing efforts can be monitored on the EEA site. For a more in-depth report on the subject, see  Bob Ambrogi’s “Law Sites” blog post

Final Thoughts

It’s clear that blockchain has become a breakthrough topic and I expect to see much more development for legal applications in the near future. One of the challenges is how middle market clients which do not have the extensive systems that a large company might have can effectively leverage this technology and Grant Thornton is one of the players focused on this market.

Proponents will have to continue their efforts to lower uncertainty about blockchain systems stability and increase its profile as a serious business tool.  I expect to see both of those occur as the year continues.

So, what do you think?  Do you better understand blockchain now and how it can impact the legal profession?  We hope so!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.