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Electronic Discovery

Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important, Part 2
 

Friday, we talked about the information you should include in a request for proposal for processing a paper discovery collection.  Today we’ll review some questions you should ask of a service provider to help you to select the provider that’s the best fit for your case. 

Of course, you’ll ask for pricing information, if the vendor can meet your schedule requirements, and for references.  In addition, here are questions to ask and information to request:

  1. Describe the qualifications of project management staff:  What is the average tenure in the industry?  At the organization?  What education and prior work experience is required?
  2. Describe the qualifications of project staff:  What is the average tenure in the industry?  At the organization?  Describe the training given to new processing staff.
  3. Describe the workflow process for the required services, including information on the flow of documents and data through the process.
  4. What technology is used for the services that are required?
  5. Describe quality control procedures and policies, including how errors are fixed and how feedback on work is funneled back to the staff.
  6. Describe the level of quality control that is done.  For example: percentage of the data checked, and whether that percentage applies to total characters, data fields or documents.
  7. Describe the data entry system that you use, including a field-by-field description of any validation that occurs during data entry.  Is double-key entry being conducted?
  8. Describe post-processing automated validation that occurs.
  9. If any portion of all of the work will be subcontracted to another service provider, identify that provider (including geographic location of the facility where the work will be done), and provide responses to each information-point above for each sub-contractor.

The response to these questions and information requests should give you the information you need to choose a vendor that’s a good fit for your project.  This means Friday and today, this blog is officially renamed to pDiscovery Daily!

What questions to you ask and what information do you request in an RFP for paper processing?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Paper is Still Important
 

For several years now, the focus of our discovery efforts has been handling ESI.  Paper, however, hasn’t gone away yet.  And it probably won’t any time soon.  People still have at least small collections of paper that need to be handled.

What’s the best way to handle paper?  Convert it ASAP and blend it into the rest of the collection so attorneys can do a comprehensive review of the entire universe of potentially responsive documents.  That means scanning, coding, and OCR processing to enable the paper to reviewed and searched.

Here’s information the vendor will need to give you accurate cost and schedule information for handling the paper portion of your collection:

  1. A description of the services that you will require (for example, establishing document boundaries, establishing document relationships, document reassembly, periphery coding, in-text coding, scanning, OCR).
  2. The approximate number of pages and documents in the collection.
  3. A description of the condition of the paper and characteristics (are the pages photocopies or originals? Staples and paper clips? Oversized and undersized pages? Are there sticky notes?).  Include special instructions, where warranted (for example, “Sticky notes are to be removed, scanned separately and placed before the documents to which they are attached”).
  4. Whether paper will be shipped/delivered to the vendor or whether on-site work will be required.  If on-site work is required, the locations at which the paper will be available.
  5. The date on which the pages will be available to the service provider, and a schedule for collections that will be available for increments.
  6. A description of the types of document in the collection (for example, correspondence, contracts, form documents, reports, and so on).
  7. If coding is required, a list of the fields to be captured with descriptions and format requirements for each field.
  8. If coding is required, a description of levels of treatment to be applied, if any have been established.
  9. If coding is required, a description of any data standardization you will require, and lists of valid entries for fields with a controlled vocabulary.
  10. A description of the deliverables you will require (image file formats, load file formats, single-page or multi-page text files, and so on)
  11. The date by which the project must be completed.

Armed with this information, a good vendor should be able to provide accurate cost and schedule information for processing your paper collection.  On Monday, we’ll cover RFP questions for the vendors to answer regarding their paper processing services.  This means today and Monday, this blog is officially renamed to pDiscovery Daily!

What type of information do you provide to a vendor in an RFP for processing paper?  Please share any comments you might have and let us know if you’d like to know more about an RFP topic.

eDiscovery Case Law: Court Orders Sanctions in Response to "Callous and Careless Attitude" of Defendant in Discovery

A Special Master determined that multiple discovery failures on the part of the defendant in an indemnity action were due to discovery procedures “wholly devoid of competence, yet only once motivated by guile”. Accordingly, the court ordered sanctions against the defendant and also ordered the defendant to pay all costs associated with its discovery failures, including plaintiff’s attorney fees and costs.

The defendant’s discovery efforts in PIC Group, Inc. v. LandCoast Insulation, Inc., No. 1:09-CV-662-KS-MTP, 2011 WL 2669144 (S.D. Miss. July 7, 2011) resulted in several discovery failures, including spoliation of data, mostly through carelessness and incompetence:

  • After consideration of the computer forensics experts recommended by the parties in this case, the court rejected all seven recommendations and appointed its own Special Master (Craig Ball, a previous thought leader interviewee on eDiscovery Daily) to conduct an investigation into the indemnity case, which would revolve around the collapse of scaffolding erected by the defendant.
  • The defendant’s efforts resulted in multiple discovery failures, including: 1) failure to impose “any corporate policy, procedure, or concerted effort [to] preserve electronic data”; 2) no effort to preserve or collect ESI until it was too late to protect the relevant data; 3) the theft of an employee’s laptop and subsequent loss of the backup of that hard drive; and 4) the erasure of another computer containing relevant ESI sometime two or three months after the collapse of the scaffolding at issue in this lawsuit.
  • As a result, the Special Master recommended sanctions against the defendant for its “callous and careless attitude” and sloppy measures taken in the course of discovery.
  • In response to these proposed sanctions, the defendant argued that none of its failures in the course of discovery were due to bad faith, and demonstrated that the plaintiff suffered only minimal prejudice.
  • Although the Special Master determined that the discovery failures were caused by a lack of caution while collecting and preserving evidence, rather than willful intent to alter discovery, he still recommended, and the court ordered, sanctions against the defendant.
  • Accordingly, the defendant was ordered to pay the plaintiff’s attorney fees and expenses accrued as a result of the defendant’s discovery failures, as well as pay the Special Master’s fees and expenses.  The defendant was also compelled to produce an image of the laptop that had been erased (from imaging conducted after the erasure) and the court reopened discovery in this case.  The court declined the Special Master’s recommendation for additional monetary sanctions ($50,000), though it did adopt his recommendation that the defendant “shall not seek indemnification or reimbursement from their insurance company” to pay the assessed fees.

So, what do you think? Were these sanctions merited, or should there be clear intent to deceive for such sanctions to be awarded? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Budgeting, Part 3: Understanding the Elements Contributing to Cost
 

We've spent some time in Part 1 and Part 2 of this series discussing the factors and assumptions that go into eDiscovery budgeting, but what about the concrete eDiscovery process itself? In addition to understanding the factors that go into budgeting, it's important to recognize the elements that contribute to eDiscovery costs.

There are five primary factors that contribute to the costs of eDiscovery in progress:

  • Collection: Collection of ESI can be simple and effortless, conducted by the client itself, or it may require the assistance of a hired third party to gain access to the ESI. The cost of collection can go up depending on the level of travel required. Forensic investigation and custodian interviews are not always necessary, but also increase the cost in cases requiring them.
  • Volume: The raw volume of ESI is one factor in the cost of eDiscovery, but not necessarily the one that counts. What's most important is the volume that must be reviewed by human eyes—and that can mean all of it, or only a fraction of the total ESI retrieved. It's possible to filter eDiscovery data by removing unwanted file types, limiting a search to a particular date range, or searching for relevant key words and phrases in documents. In order to moderate cost, it's usually wise to start with a more limited eDiscovery scope and expand it to cover a larger volume if necessary.  Many eDiscovery service providers offer free early cost assessment services to help attorneys estimate the volume of potentially responsive data that needs to be processed and reviewed. 
  • Number of Custodians: The number of sources involved in the collection of data can increase exponentially the amount of time and effort involved in eDiscovery, thereby increasing the cost accordingly.
  • Human Review: This is the most expensive factor in eDiscovery, requiring as much as 80% of the total eDiscovery budget.  It requires not only human beings working on an hourly wage, but time spent on training and the learning curve as they become more adept at recognizing and refining the key elements and terms required to be produced in a particular case. The more people and time involved in data review, the greater the probable expense.
  • Case Complexity: While a simple case may require a limited scope and review process, complex court cases can involve searching the same documents for multiple types of information for discovery. As a result, complex cases require more time spent on a document review strategy, as well as on a more elaborate review process.

So, what do you think? Are there any other major factors in eDiscovery budgeting or expense? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Breaking News: News International to Suspend Deletion of Emails and Other Documents
 

According to The Independent, staff at Rupert Murdoch’s newspapers has been warned to stop deleting any documents that may be relevant to the current investigations, as a suspension of its usual policy about deletion of documents goes into effect.

Over the course of the 2011 investigation into illegal voicemail hacking by News International employees, there has been contention over the ongoing deletion of documents at the newspaper and its subsidiaries. But only during this past weekend did News International's parent company, News Corp, finally send an email to all of its employees instructing them to take measures preventing the deletion of documents that might be related to the investigation, including emails and other ESI.  Specifically, the email instructed employees to “Please suspend any automatic deletion or discarding of any documents, whether electronic or paper, including emails or drafts of documents… If you are uncertain whether a document is relevant… you should preserve it.”

Of course, the News Corp scandal has been not only significant eDiscovery news, but major world news as well.

  • Since January 2011, police have been investigating a list of roughly 4,000 potential targets whose voicemails may have been hacked as part of this scandal – including Hollywood celebrities, sports figures, politicians, and even members of the British Royal Family, most of whom were unaware of how easily their cell phone functions were hacked.
  • The newsroom at News of the World, the newspaper implicated in the systematic phone hacking, has been closed.
  • Sean Hoare, the whistle-blower who disclosed phone hacking at News of the World, was found dead in his home in Watford, Hertfordshire.  No cause of death has yet been identified.
  • During testimony to Parliament last week, Rupert Murdoch was attacked – by a pie wielding comedian, who was thwarted by Murdoch’s wife Wendi.

Although this email sends a positive message about News Corp's willingness to protect eDiscovery information from this point forward, the instruction arguably comes too late to protect the documents and other ESI that have potentially been destroyed in the months since the investigation into the paper's illegal phone hacking began as well as the years when News Corp faced numerous hacking claims during key periods associated with the those claims.  News International has acknowledged that some messages may be recoverable on backup disks, and the police are trying to recover that information now, said Tom Watson, a Labor Party member of Parliament.

From an eDiscovery perspective, this story may become “Enron-esque” before it’s all over.

So, what do you think? Is this instruction from News International a step toward greater openness and responsibility in this investigation, or is it simply a case of too little, too late? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Budgeting, Part 2: Key Assumptions and Choices That Affect eDiscovery Budgeting
 

Friday, we talked about assumptions and elements that contribute to cost that need to be considered when budgeting for eDiscovery activities.

Now that you know a bit about the factors surrounding the cost of eDiscovery, let's take a look at budgeting and the estimates that attorneys provide to a client before beginning eDiscovery work. The first step in budgeting is to prepare an estimate based on your and your client’s best guesses and assumptions. What are some of these assumptions?

  • Volume: Volume is almost always the largest driver of cost, as it will affect not only the quantity of data to be collected and processed, but also the amount of time human beings must spend reviewing discovery documents for relevance and privilege. Volume is also one of the more ambiguous factors. The most accurate estimate of volume is in megabytes (MB), gigabytes (GB) or terabytes (TB), but you won't always have access to these kinds of size descriptions. Instead, a client may tell you that there are "50,000 or so pages" of data, or "about 10,000 emails". The size of pages can vary widely depending on whether they are in an email, a PDF, or a word document, so it can be very difficult to estimate volume with any degree of accuracy.
  • Scope: It's wise to start with the smallest possible scope and expand if necessary, but that can be an inefficient way to review documents for eDiscovery, as it may mean going over the same files twice for different aspects of your eventual scope.
  • Efficiency: Whenever possible, it's important to plan an eDiscovery strategy in advance that will allow for a more efficient review of documents and data. The ability to maintain an efficient process of eDiscovery is largely dependent on timing and the ability to plan.
  • Timing: More time for eDiscovery activities means that the scope and search details can be refined, optimizing efficiency and minimizing costs. If the eDiscovery must be done in a hurry, efficiency suffers and costs rise.
  • Risk: Risk tolerance is a factor in cost, determining how much attention must be paid to refining every aspect of document review and data access. Mitigating risk up front through agreement and cooperation with opposing counsel can clearly define the risk so that you know where you stand.
  • Location: Where the data is located can affect costs and so can the jurisdiction of the case.  For example, different courts have provided different rulings on spoliation claims, so it’s important to consider location as part of the budgeting process.

So, what do you think? Have you found any of these assumptions to be especially problematic in your own eDiscovery budgeting estimates? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Budgeting, Part 1: Assumptions and Elements that Contribute to Cost
 

While attorneys may struggle with the regional and international regulations surrounding eDiscovery, your client is likely to be less concerned with the practical legal details of your discovery request, and more concerned with the financial cost.

Whether you're working with the plaintiff or the defense, one of the most important considerations in preparing for eDiscovery is presenting the expense accurately and completely to the client – and that means understanding for yourself the factors that go into budgeting for eDiscovery. There are two main sets of elements to consider: those that affect budgeting and estimates, and those that will have a direct impact on the ultimate cost of eDiscovery.

Understanding Assumptions in eDiscovery

Because so much of the eDiscovery process cannot be predicted without accurate information, it's important to confirm any estimates from a client or from opposing counsel before proceeding with a budget.

Does your client really know the volume of data that is likely to be contained in certain files or backups, or are they providing generalized figures that may not be accurate? Do you know for certain the precise scope of the information you need to examine for discovery? Attorneys need to verify as many estimates as possible, noting any and all assumptions in their estimates so that the client can prepare for potential changes in eDiscovery costs if those early assumptions prove to be inaccurate.

eDiscovery budgeting is predicated on guesswork and assumptions that may include:

  • Volume
  • Scope
  • Efficiency
  • Risk
  • Timing

Each of these factors will be discussed in an upcoming blog post next week detailing the assumptions that go into estimating a budget for eDiscovery.

Breaking Down the Cost of eDiscovery

Once the estimate is complete and you’re ready to tackle the real work of eDiscovery, there are particular elements that contribute to the cost, while others are more minimal.

Some of the major elements comprising the cost of eDiscovery include:

  • Collection: including factors such as travel, retrieval, custodian interviews, and forensic collection (if necessary)
  • Volume of data
  • Number of custodians
  • Human review: the most expensive factor in eDiscovery costs
  • Case complexity

I'll discuss more on each of these factors in an upcoming blog post, as well.

The cost of eDiscovery can also be affected by the degree of open communication with opposing counsel. A cooperative relationship with the opposition can streamline discovery, while a contentious relationship makes it likely that discovery-related motions and court appearances will increase the total cost of this process.

So, what do you think? How much up front effort goes into your eDiscovery budgeting process? How do you monitor progress against the budget?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: How Blocking Statutes Affect International eDiscovery
 

Over the past few weeks, we’ve discussed the general challenges of international eDiscovery, use of the 41 year old Hague Convention for requesting ESI from other countries, use of Section 1782 for foreign entities to request ESI from US entities, and the effect of privacy laws in other countries on discovery requests.

In the course of pursuing discovery requests in foreign nations, US lawyers also often run into another serious legal snag: blocking statutes. These statutes prevent certain types of information from leaving the country where it originates, and can interfere with discovery of evidence in a number of ways.

The purpose of blocking statutes – also known as "secrecy laws" – is to protect information that is considered commercially significant or relevant to national security in the country where it is located, or where it originated. Certain countries have blocking statutes that protect particular industries or types of information. In Switzerland, for instance, the disclosure or transmission of bank account information is forbidden by blocking statutes. Other countries, such as France and Germany, have created blocking statutes that make certain types of discovery illegal within their borders, complicating matters for attorneys requesting information.

A French blocking statute dating back to 1980 has been known to cause problems in the past few years for attorneys, by criminalizing cooperation with US discovery – in one case, resulting in hefty fines for a French lawyer who contravened that blocking statute. In other cases, a refusal to submit documents for discovery based on blocking statutes and the Hague Convention may be overruled by national courts depending on the circumstances of the case and the type of discovery being ordered.

Blocking statutes present an odd legal conundrum, because they don't prevent American attorneys from requesting privileged information or American courts from ordering discovery – they simply make it illegal for that information to be disclosed by nations of the foreign country in question. As a result, American courts and attorneys have sometimes expressed skepticism about the validity of these statutes and the likelihood of penalties being enforced against those who contravene them.

In fact, those who contravene these blocking statutes are seldom charged or fined. When the statutes are enforced, however, the penalties are steep.

Blocking statutes can be frustrating to organizations responding to discovery requests, because they put foreign individuals and organizations who are ordered to submit privileged information in the untenable position of either breaking their own country's laws – and facing penalties for contravening blocking statutes – or receiving sanctions from US courts for refusal to produce discovery documents. In many cases, foreign entities prefer to confront US courts rather than risk penalties in their own home countries, which forces US courts to address the failure to comply with these requests.

So, what do you think? Have you ever had a discovery request denied because of a blocking statute? Please share any comments you might have or if you'd like to know more about a particular topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Preparing an eDiscovery Processing RFP, Part 2
 

Yesterday, we talked about the information you should include in a request for proposal for eDiscovery processing.  Today we’ll review some questions you should ask of a service provider to help you to select the one that’s the best fit for your case. 

Of course, you’ll ask for pricing information and if the vendor can meet your schedule requirements.  In addition, here are questions to ask and information to request:

  1. To ensure that you understand the vendor’s pricing model and to avoid unexpected costs, ask the vendor to provide an estimate of total costs for the project, based on the information you’ve provided about the collection.
  2. Ask the vendor to confirm that they can meet all of the requirements you’ve outlined in the information section of the RFP.
  3. Ask what file types are handled, and what the standard protocol/recommendation is for handling other file types.
  4. Ask the vendor how exception files, such as corrupted or password protected files, are handled.
  5. Ask the vendor to describe its approach to processing, including discussion of de-duplication, handling attachments, handling email threads, culling/filtering, and handling metadata.
  6. Ask what languages are supported.
  7. Ask the vendor to describe its auditing and tracking procedures.
  8. Ask the vendor to describe the quality assurance (measures to prevent errors) and quality control (measures to confirm that results are correct) mechanisms included associated with their processing.
  9. Ask the vendor to describe what information, input and participation is required from you.

The response to these questions and information requests should give you the information you need to choose a vendor that’s a good fit for your project.

What questions to you ask and what information do you request in an RFP for eDiscovery processing?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Working Successfully with eDiscovery and Litigation Support Service Providers: Preparing an eDiscovery Processing RFP
 

Last week, we covered preparing a RFP for eDiscovery Collection and Forensics.  This week’s RFP discussion will focus on processing eDiscovery, and today we’ll cover the information you should provide to a vendor regarding your collection and your requirements.  Remember, the more thorough you are, the better the vendor will be able to gauge the scope and complexity of your project.

Here’s information the vendor will need to give you accurate cost and schedule information:

  1. An estimate of the volume.  That is, the number of gigabytes or terabytes of data to be processed.
  2. A description of the data files you expect will be found in the collection (for example, Word documents, Excel documents, PST files, and so on).
  3. A description of the deliverable you’ll be providing to the service provider (the media on which the data will be provided, whether you’ll be uploading data to the service provider’s server) and a schedule for data delivery.
  4. Will de-duplication be required, and if so, by case or by custodian?
  5. What filtering will be required?  Let the service provider know if you’ll be providing keywords, date ranges, and other criteria for filtering.
  6. Are any files password protected, and if so, how should the vendor handle those?  Should they try to crack the passwords?
  7. If you are requiring images, are endorsements required?  If so, what endorsements? Bates numbers? Text, such as confidential or other stamps?
  8. Describe the deliverables you will require from the service provider, including data file formats, image file formats (single-page TIFF, multi-page TIFF, PDF), searchable text, load file fields, etc.  Let the service provider know the target review tool you expect to use.
  9. The date by when the work must be completed, and if there will be processing priorities and interim deadlines.
  10. Describe your expectations regarding the need for the service provider to testify.

Armed with this information, a good vendor should be able to provide accurate cost and schedule information for processing your collection.  In the next post, we’ll cover RFP questions for processing and conversion services.

What type of information do you provide to a vendor in an RFP for processing eDiscovery?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.