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eDiscoveryDaily

eDiscovery Case Law: eDiscovery Violations Leave Delta Holding the Bag
 

In the case In re Delta/AirTran Baggage Fee Antitrust Litig., 2012 U.S. Dist. LEXIS 13462, 41-43 (N.D. Ga. Feb. 3, 2012), U.S. District Judge Timothy Batten ordered Delta to pay plaintiff attorney’s fees and costs for eDiscovery issues in consolidated antitrust cases claiming Delta and AirTran Holdings, Inc. conspired to charge customers $15 to check their first bag. Noting that there was a “huge hole” in Delta’s eDiscovery process, Judge Batten reopened discovery based on defendants’ untimely production of records and indications that there was overwriting of backup tapes, inconsistencies in deposition testimony and documents, and neglect in searching and producing documents from hard drives.

Plaintiffs asserted that Delta did not conduct a reasonable inquiry to confirm its implicit representations that (1) all of the relevant hard drives had been processed, and (2) there were no missing back-up tapes. Arguing that Delta should have ensured that all sources of discoverable information were identified and searched and searched in the evidence locker, Plaintiffs contended that Delta falsely certified that its discovery responses were correct and complete. As a result, Plaintiffs contended that the case had been “unnecessarily delayed and its costs unnecessarily increased, and the fact that Delta is now producing these documents is immaterial”.

The Court agreed, noting:

“The Court finds that Delta did not conduct a reasonable inquiry. With respect to the collected but unsearched hard drives, Delta has not substantially justified its failure to ensure the drives were run through Clearwell and searched back in 2009. While its counsel did email {Delta’s IT Group} CSIRT a list of custodians whose hard drives should have been loaded onto Clearwell, CSIRT did not respond with confirmation that each listed person’s drive was on the system; CSIRT only stated that files were identified by “user employee id, not by name.” Delta has not shown that it ever confirmed with CSIRT that each hard drive that was supposed to be run through Clearwell actually had been. This oversight is a huge hole in Delta’s electronic discovery process, and Delta has not adequately explained why it did not ensure in 2009 that every collected hard drive was actually processed through Clearwell and searched.”

Judge Batten determined that Delta had violated FRCP 26(g) early disclosure requirements and failed to supplement discovery, justifying sanctions under FRCP 37(c)(1). Ruling that Delta needed to pay plaintiffs’ fees and costs in bringing the discovery motions and for extended discovery activities, Judge Batten strongly suggested that both sides meet and confer to attempt to agree to those fees and costs.  However, Judge Batten found that Delta would not be sanctioned with the exclusion of the late production, because Delta: 1) Informed the Court and Plaintiffs after they discovered the issue; 2) Requested the Court suspend the case schedule; and 3) There was no evidence the Defendants willfully withheld the discovery.

So, what do you think?  Were the sanctions justified?  Or should more sanctions have been applied?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Law: Texas Model Order for Patent eDiscovery Now In the Public Comment Phase
 

In a blog post last October, we discussed the new model order proposed by Federal Circuit Chief Judge Randall Rader as a measure against the "excesses" of eDiscovery production. At that time, the "Model Order on E-Discovery in Patent Cases" had been unanimously voted on by the Federal Circuit Advisory Council and, as a result, could significantly alter the way discovery materials are used in such cases.  This version of the model order is included in proposed local rule amendment GO-12-06 for the Eastern District of Texas.  The amendment has been approved by the judges of the district, subject to public comment, the deadline for which is March 23, a little over two weeks from now.

Reviewed by a working group of the Eastern District's Local Rules Advisory Committee at the court's request to determine whether it should be included in the district's local rules, the working group recognized the "substantial work that went into the [Federal Circuit's] Model Order" and used it as its "baseline." The district created a redlined version of the Federal Circuit model order and provides detailed commentary explaining the reasons for the changes to the Federal Circuit model.  It has some fairly significant changes, some of which include:

  • Cost Shifting: Item #3, addressing circumstances for considering cost shifting, was stricken;
  • ESI Production Parameters: A new item #5 has been added to address production parameters, including document image format in TIFF, text-searchable documents, and native files (the way it’s currently written, you can apparently only request native files after receiving a TIFF production, absent agreement of the parties).  This section also notes that backup preservation and collection and preservation from voice mail and mobile devices is not necessary (absent a showing of good cause);
  • Email Production Requests: Item #7, indicating that email production requests will be only propounded for specific issues instead of general discovery, was stricken.  The next item, related to specifics of email production requests was expanded quite a bit to address information to be exchanged prior to email production and also allow one deponent per producing party to determine “the proper custodians, proper search terms, and proper time frame for e-mail production requests”;
  • Email Production Scope: Language was added to indicate that email requests will “identify the custodian, search terms, and time frame”.  It also bumped up the limit from five to eight custodians per producing party for each request and bumped up the limit from five to ten search terms per custodian per party.

It will be interesting to see whether any additional modifications are implemented as a result of the public comment period.

So, what do you think?  Will model orders become popular as a way to limit the eDiscovery in other types of cases?  Are model orders a good idea or are they too limiting? Please share any comments you might have or if you'd like to know more about a particular topic.

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

eDiscovery Case Law: At The Eleventh Hour, Encrypted Hard Drive Is Decrypted
 

In our previous post regarding the case U.S. v. Fricosu, Colorado district judge Robert Blackburn ruled that a woman must produce an unencrypted version of her Toshiba laptop's hard drive to prosecutors in a mortgage fraud case for police inspection.  The woman, Ramona Fricosu, had argued that the Fifth Amendment's privilege against self-incrimination protected her from having to disclose the password to her hard drive, which was encrypted using PGP Desktop and seized when investigators served a search warrant on her home.

In providing his ruling, Judge Blackburn referenced In re Grand Jury Subpoena to Boucher in which a password protected laptop was seized. After an initial magistrate judge ruling finding that the defendant could not be compelled to reveal the contents of his mind (via the password), the grand jury requested (which a Vermont District judge granted) to require the defendant to produce, not the password itself, but rather an unencrypted version of the drive.

While Judge Blackburn ruled that Fricosu was required to provide the government in this case with an unencrypted copy of the Toshiba laptop computer’s hard drive, he also ruled that the government would be “precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution”.

Still, the defendant appealed.  On February 21st, the 10th U.S. Circuit Court of Appeals refused to get involved, saying Ramona Fricosu's case must first be resolved in District Court before her attorney can appeal.  She would have been required to turn over the unencrypted contents of the drive as of March 1.

However, at the last minute, Colorado federal authorities decrypted the laptop.  “They must have used or found successful one of the passwords the co-defendant (Scott Whatcott) provided them,” Fricosu’s attorney, Philip Dubois, said in a telephone interview.  Dubois said the authorities delivered to him a copy of the information they discovered on the drive, but he said he had not examined it.

So, what do you think?  Will disclosure of the password preclude a later appeal?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte
 

Often, the picture used to introduce the blog post is a whimsical (but public domain!) representation of the topic at hand.  However, today’s picture is intended to be a bit instructional.

As we work with more data daily and we keep buying larger hard drives to store that data, one gigabyte (GB) of data seems smaller and smaller.  Today, you can buy a portable 1 terabyte (TB) drive for less than $100 in some places.  Is the GB smaller than it used to be?  Last I checked, it’s still about a billion bytes (1024 x 1024 x 1024 or 1,073,741,824 bytes, to be exact).

From a page standpoint, most estimates that I’ve heard have estimated 1 GB to be 50,000 to 75,000 pages.  Of course, that can vary widely, depending on the file types comprising that GB.  A GB of 1 megabyte (MB) one-page, high-resolution image files will only take about 1,000 pages to equal a GB, whereas a collection of 5 kilobyte (KB) text file and small emails (with minimal attachments) could take as much as 200,000 pages to equal a GB.  So, 50,000 to 75,000 is probably a good average.

A ream of copy paper is 500 pages and a case holds 10 reams (5,000 pages).  So, a GB is the equivalent of 100 to 150 reams of paper (10 to 15 cases), which is enough paper to fill a small truck.  Hence, today’s picture shows a truck full of paper.

There was a Gartner report that re-published Anne Kershaw’s analysis on the cost to manually review 1 TB of data.  Quoting from the report, as follows:

“Considering that one terabyte is generally estimated to contain 75 million pages, a one-terabyte case could amount to 18,750,000 documents, assuming an average of four pages per document. Further assuming that a lawyer or paralegal can review 50 documents per hour (a very fast review rate), it would take 375,000 hours to complete the review. In other words, it would take more than 185 reviewers working 2,000 hours each per year to complete the review within a year. Assuming each reviewer is paid $50 per hour (a bargain), the cost could be more than $18,750,000.”

If it costs $18.75 million to review 1 TB, one could extrapolate that to approximately $18,750 to review each GB.  Dividing by 1,000 (ignoring the 24), that extrapolates to: 75,000 pages / 4 = 18,750 documents / 50 documents reviewed per hour = 375 review hours x $50 per hour = $18,750.  I’ve mentioned that figure to clients and prospects and they almost always seem surprised that the figure is so high.  Then, I ask them how many hours does it take them to review a truckload of paper to determine relevancy to the case?  😉

Bottom line: each GB effectively culled out through technology (such as early case assessment, first pass review tools like FirstPass™, powered by Venio) can save approximately $18,750 in review costs.  That’s why technology based assisted review approaches have become so popular and why it’s important to remember how expensive each additional GB can be.

So, what do you think?  Did you realize that each GB was so large or so expensive?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case
 

In Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion on last Friday (February 24), approving of the use of computer-assisted review of electronically stored information (“ESI”) for this case, making it likely the first case to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”  As noted in our previous blog post about the case, the parties had been instructed to submit draft protocols by February 16th.

After providing a background of the Title VII gender discrimination case, Judge Peck went on to reference his article (Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?) to explain computer-assisted review.  He then detailed the parties’ negotiation of an agreed protocol for the computer-assisted review for this case.  The Court accepted the defendants’ proposal, which included seven iterative “seeding” reviews, but included the following caveat:

“But if you get to the seventh round and [plaintiffs] are saying that the computer is still doing weird things, it’s not stabilized, etc., we need to do another round or two, either you will agree to that or you will both come in with the appropriate QC information and everything else and [may be ordered to] do another round or two or five or 500 or whatever it takes to stabilize the system.”

The opinion also included a section entitled “Further Analysis and Lessons for the Future” in which several, more general topics surrounding computer-assisted review were addressed.  Judge Peck recognized that “computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases” and noted that “[t]he goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the ‘value’ of the case” (referenced in the article Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, written by Maura R. Grossman & Gordon V. Cormack).

In his conclusion, Judge Peck noted:

“This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review.  That does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review.  Nor does this Opinion endorse any vendor … nor any particular computer-assisted review tool.  What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.  Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review.  As with keywords or any other technological solution to e-discovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality.  Computer-assisted review now can be considered judicially-approved for use in appropriate cases.”

For those in the industry yearning for case law that addresses the approved use of technology assisted review methodologies, Judge Peck’s in-depth discussion of the topic and conclusion appears to address that need.  It will be interesting to see how this case continues and whether additional discussion of the methodology will be discussed in case filings!

So, what do you think?  Is it high time for courts to recognize and approve computer-assisted review or is the court system still not ready for technology based approaches?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

eDiscovery Trends: Craig Ball of Craig D. Ball, P.C., Part Two
 

This is the seventh (and final) of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 750 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com. 

Our interview with Craig had so much good information in it, we couldn’t fit it all into a single post.  Yesterday, we published part one.  Enjoy the rest of the interview!

What are your general observations about LTNY this year and how it fits into emerging trends?

Well, I've been coming to Legal Tech for well over a dozen years and ,each year, I think it couldn't possibly become more an eDiscovery conference (as opposed to a general forensic technology conference).  Then, next year, the aisles seem to grow longer and deeper with people providing eDiscovery solutions. 

So I'm just blown away.  I used to toil in this fairly obscure corner of the practice, and it’s now, literally, this whole event.  Walk down these aisles with me, and you'll see it's just one person after another after another offering some kind of eDiscovery tool or service or related product.  That’s also true of the educational sessions – some of which I guiltily helped plan, so the focus on eDiscovery does not come as much of a surprise.  But, remember that the vendors who sponsor these tracks have a hand in the content as well, and they’re the ones insisting, “We want to talk about eDiscovery.  We want to talk about technology-assisted review.”

It's not just because of what they're selling, although, certainly that’s a driver.  It's also what they want to hear about.  It's what their customers want to know more about. 

So, is it inconsistent that I'm saying there's not enough education about eDiscovery, and yet here, they talk of little else?  Other than LegalTech, and a few other events, the need remains to go longer and deeper.  Understanding information technology is a necessity for litigators.  That’s where the evidence lives.  IT is a discipline as broad, deep and complex in its way as the law.  Why then do we expect it should require so much less a dedication of time and effort to become even minimally proficient in information technology than it was to learn the law?

What are you working on that you’d like our readers to know about?

For me, this is the year of trying to offer an earlier acquaintance in information technology to lawyers.  I've spent almost thirty years teaching lawyers and judges about forensic technology and helping them get their arms around it.  This year, I returned to teaching law students.  My e-discovery course is offered at the University of Texas School of Law and I’m trying to help the students appreciate that in a very difficult job market, entering the profession with a practical understanding of how to attack an eDiscovery effort is a distinguishing factor in trying to find and keep employment.  It's a crucial skill set, and it's not one they can expect will be handed down to them from older lawyers.

There's just simply no lore to hand down where eDiscovery is concerned, at least not much useful lore.  And so I'm gratified for the challenge, and it's very hard work.  It's much harder to teach law students than it is to teach lawyers for a host of reasons.  The challenge in teaching law students versus lawyers is giving them the crucial context.  Most haven’t much exposure to law practice, so you have to give them more information and explain much more of what you take for granted with lawyers. 

Moving forward this year, I'm also trying to find ways to do more testing of new tools and refine mechanisms for reducing the volume of electronic information, to help lawyers master strategies that will make it easier for them to hit the ground running and take advantage of some of the economies that are within easy reach.  The key is to educate them on “methods” more than “shortcuts”.  I want to show them techniques that they can apply with confidence to speed the process of identification and preservation, as well as help them apply a better and more precise working vocabulary to enable them to communicate with clarity and confidence about ESI.  Competent communication, even more than cooperation, will prove a major contributor to eliminating headaches in eDiscovery.

Thanks, Craig, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Craig Ball of Craig D. Ball, P.C.
 

This is the seventh (and final) of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Craig Ball.  A frequent court appointed special master in electronic evidence, Craig is a prolific contributor to continuing legal and professional education programs throughout the United States, having delivered over 750 presentations and papers.  Craig’s articles on forensic technology and electronic discovery frequently appear in the national media, and he writes a monthly column on computer forensics and eDiscovery for Law Technology News called Ball in your Court, as well as blogs on those topics at ballinyourcourt.com. 

Our interview with Craig had so much good information in it, we couldn’t fit it all into a single post.  So, today is part one.  Part two will be published in the blog tomorrow!

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

Well, I see several things happening.  I'm gratified that people are starting to become more resigned to the obligation to pursue eDiscovery.  I think we're seeing some better practices, particularly with respect to preservation.

The preservation message is hitting home.  Whether it’s a function of the outsize fear factor prompted by sanctions decisions or whether lawyers and businesses are becoming better informed by virtue of education and dialogue like that here at LegalTech is hard to say.  Regardless, I think the message is starting to seep through that there are  things you must do early on to identify electronically stored information and be sure that it's properly preserved.

As I walk around the show and listen to the programs, I'm amazed by all discussion of Technology Assisted Review or TAR—maybe the worst acronym that industry’s come up with since ECA.  But, they didn't choose Super Human Information Technology, so I guess we should be thankful for small blessings.  I'm sure we'll soon an article mentioning TAR and feathers.

Technology Assisted Review is the use of more sophisticated algorithms—math–and advanced analytic to take replace or supplement the individualized judgment of lawyers' respecting the responsiveness, non-responsiveness and privileged character of documents and data sets.  The notion behind TAR is that we don't need legions of young associates or contract lawyers in darkened rooms staring at screens; instead, the broad distinctions between what is most likely to be relevant and what is not will be handled robotically.  It’s floated as a more palatable, more affordable alternative to poorly-chosen key words thrown at massive data volumes–a more intelligent, more intuitive tool that does the job in a way that’s no worse than human beings, hopefully somewhat better, and in any case, for a lot less money.  That is the dream, and it’s coming closer to a reality..

But the realization out there is spotty.  Expectations are unrealistic and marketing is overheated, but we are seeing some enthusiasm amidst the skepticism.  And, I think that trend is certainly going to continue, at least as a marketing trend whether it continues as a successfully-integrated technology or not.  For the moment, it’s an option only for those with big budgets, not the rank and file firm.  No surprises there, as eDiscovery has yet to become a process lawyers know how to manage cost-effectively, But they will learn, in time.  Clients, courts and malpractice carriers will leave no option but to learn it.

Which trend(s), if any, haven’t emerged to this point like you thought they would?

Oh, that's an easy one.  That's education.  I am appalled at the dearth of high-caliber educational options available to lawyers in this crucial and very costly corner aspect of the practice.  E-discovery education is still afflicted by the scourge of the one-hour CLE.  You know, where some earnest person’s trotted out for 30, 45 minutes, maybe an hour of introduction to electronic discovery.  That continuing, repeated, cursory treatment of this challenging area is what’s supposed to make us confident and competent.  It doesn't even begin to scratch the surface.

Lawyers are still not learning enough about the information infrastructure of their clients.  They're picking up a few buzz words.  I’ll see it some meet-and-confers.  It's like watching a little kid use a curse word.  This sort of smile creeps across their face when they’ve managed to work the word “metadata” into the conversation.  As though using the term is a talisman–a substitute for actually knowing what they're talking about.

I don't mean to be so dismissive, but it's really gets almost that absurd sometimes.  We don't have enough education.  We don't have enough lawyers starting to get it.  Most channel their energy and ingenuity into look for reasons why they don’t need to know this stuff.  The handful that really do want to learn have precious few places to go short of self-instruction.  We need to change that.

We need a Manhattan Project in this country to help rescue the experienced lawyers and bring them up to speed.  We need a sort of reset, getting all trial lawyers talking about these topics in an intelligent, productive, and perhaps most importantly of all, cost-effective way.

Thanks, Craig, for participating in the interview!

To the readers, just a reminder to stay tuned for part two of our interview with Craig tomorrow!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Ralph Losey of Jackson Lewis, LLP, Part Two
 

This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm's National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world.

Our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post.  Yesterday was part 1.  Here's the rest of the interview!

Are there any other key trends you see?  Is there anything else interesting in terms of the trends you see here at LegalTech, at least as far as the curriculum goes?

[Interviewed the first morning, before the show began]  In all candor, the show hasn't begun yet, so I haven't seen anything.  I'm doing four presentations on predictive coding and one with Craig Ball, which I'm looking forward to.  I hope I don't suffer too bad of a public humiliation by Master Ball. 

But, you know, the keynote speech that's getting ready to start is on ethics, and I see a lot of ethics in the curriculum.  I'm pleased by that.  I do lecture a lot on eDiscovery ethics, and I think it comes down to fundamentally what we are doing with discovery.  Are we, as legal practitioners, willing to stop playing “hide the ball”, stop all this nonsense and waste of money, and get down to actually finding the key facts and getting them out there quickly?  That's always been my attitude, but I was lucky – I was brought up in a firm that really put ethics first and money second.  But, there are a lot of people out there for which money's first, and ethics is a gray area.

Ethics is not a gray area.  We're supposed to try and get the case resolved and save money for our clients.  That's rule one.  Just do it speedy and inexpensively.  A lot of lawyers, say, “yeah, right” and that's how they make a living.  Well, shame on them.

You don’t make a living by exploiting your clients.  You make a living by winning cases, and sometimes the best way to win a case is to settle it when you realize the facts are against you – not to try to change the facts or hide the facts.  So that's ethics.  Most clients want ethical lawyers like that.

What are you working on that you’d like our readers to know about?

I'm doing a lot of law firm training.  I do that internally and, since my current law firm specializes in labor and employment only, we're not really a competitor to most law firms.  So, we actually can offer a service to help train other law firms in eDiscovery.

I'm also now doing a lot of training for our corporate clients.  We represent Fortune 500 type companies, and it's important for those companies to be prepared for eDiscovery.  Now that we’re coming out of the recession, companies can spend the money needed to get ready for litigation and eDiscovery that they put off before, because of other priorities.  Companies are now saying “I want to finally get my e-mail retention policy in order.  I want to figure out how to get a litigation hold implemented in my company without causing all kinds of disruption and chaos and confusion and expense.”

It just takes preparation.  It takes time.  The fundamental way to do that is to set up your own internal team, eDiscovery team.  That's one of the main ideas that I've been talking about for six years now when I started my blog, e-Discovery Team®, is the joint approach of people working together.  Get the IT people, the law people and the management people working together as teams for – in this case – litigation readiness.

It can cost a fair amount of money to do it right.  But, if you spend $100,000 now to get ready and get your systems in order, you can save yourself millions later on and also save yourself the embarrassment of making a mistake, of being found out to be a spoliator.  There are plenty of examples where it makes sense to spend a little money up front to save more money down the road.  So, I want to encourage companies to think about that, whether they use me or somebody else.  There are a number of attorneys that provide those services, and it's money well spent.  Pay me a little bit now or pay me a lot later.

Ten years ago, when Cisco was probably the first company in the country to form their own eDiscovery team, it was after they faced hundreds of investor law suits.  They found that by forming their own eDiscovery team, they reduced their litigation expenses by 90 percent because most of their litigation expenses were related to eDiscovery.  While I'm not promising you'll save 90 percent like Cisco did, I am saying it's a well-established fact that spending a little money up front to prepare will help you save costs in the long run.

I'd also like point out to people the other program that I've developed, which I call eDiscovery team training.  And you'll also find that on the web, at e-Discovery Team Training.  I took what I had developed in law school in teaching eDiscovery to law students for the past three or four years, and I developed an online program with the University of Florida, School of Law.  With their permission, I developed my own private version of that, which is actually much longer and harder than what I taught to law students.  Law students had to take it in two months.

So, I've developed a program that built on that, which you can take up to two years to complete.  It's 75 hours of work to go through the training program and it's all online.  It has homework assignments at the end for additional reading and presents different essays, hypertext-type writings and videos.  It takes advantage of the power of online education, which I really think is more the future than these expensive, face-to-face education programs, like we have at LegalTech.

There are still a few events that I'll go to each year (like LegalTech and the Sedona Conference), and then I'll train inside corporations or in my own law firm.  The fact that most lawyers aren't doing eDiscovery is not because they're trying to do anything wrong or hide the truth.  They simply don't know how.  And if you teach them how to do it, they'll do it.  This is against a lot of vendors' models – they would rather serve a nice fish dinner.  I'm more into teaching people how to fish so that they can feed themselves, and that's what I go around trying to do.

Thanks, Ralph, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Ralph Losey of Jackson Lewis, LLP
 

This is the sixth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year.

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm's National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog and founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world.

Our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post.  So, today is part one.  Part two will be published in the blog tomorrow!

Many people are saying that 2012 is the year of technology assisted review.  What do you think needs to happen for that to come true?

Well, many things.  First of all, we need to have better training for lawyers so that they'll know how to use the technology.  If you bring an advanced computer to anyone, they're going to need some kind of instruction on how to use it.  You have to have people trained to use the tools.  That's very important and I spend a lot of time focusing on training in my firm and around the country to other attorneys and bar groups.  The tool alone really can't do much or help you unless you fit in the use of it into a larger, legal methodology.

In other words, just bringing in technology in itself doesn't answer any questions.  It may answer some, but it doesn't give you the answers you need in order to use it in your practice.

I'm a legal practitioner.  I've been practicing law, for, I guess about 32 years now.  So, that's how I look at technology – as tools to practice law and represent clients.  And, the truth is most people don't know how to use predictive coding yet, so we're going to have a training and learning curve like you do with any new technology.

Vendors also need to start bringing the prices down so that it's more affordable and make it accessible to a large number of attorneys, rather than just a few attorneys that can afford to handle it in large cases.  I've been complaining about this to vendors for a while now.  The good news is I think that they're listening.  I'm beginning to see prices come down and I think this trend will continue.  It's in their own best interest to do that because in the long run, they are going to be more successful in bringing this technology to attorneys and making money for their companies if they look at more of a large scale, larger volume, lower profit as opposed to making larger amounts of profit and fewer projects.

I think most of the vendors are receptive to that.  The reason they probably just don't jump on it right away is the demand isn’t there yet.  Build it and they will come.  But, they're only coming in small numbers.  When they're only coming in small numbers in order to pay for their business, they have to charge a lot.

So, it's a circle.  It comes back again to training.  An educated consumer will want this.  I want this.  I like it, and I want it affordable.

Do you think that it's just merely a matter of bringing prices down?  Or is it being creative in how you price differently?

Well, it's both.  The bottom line is always the bottom line, but it’s important to get there in a way that's win-win for both the consumer (law firms and corporate law departments) and for the provider.  So, there needs to be creative solutions.  As a result, I think people are now “putting on their thinking caps” and coming up with new ways to price solutions because there are different needs.  I have my own ideas on how I want to use it, and so I want people to price accordingly.  I don't want there to be a “one-size-fits-all” type of solution.  I think the vendors are hearing that, too.

You had a recent blog post about bottom line proportional review and you noted that the larger cases have a lot at stake, so the budget is much higher.  How does it work for smaller cases?

It's going to take a legal method, and I think that the method I described (bottom line proportional review) is the way to make it happen.  In order to make bottom line driven review (where you're basically setting a budget up front) to be acceptable to the requesting party, they're going to want to make sure that this isn't just another way to “hide the ball”.  They're going to want to make sure that they can find the relevant evidence that they need to evaluate their case to either see that they've got a winning case (so they can move for a summary-judgment, establish a strong settlement position, or go to trial) or see that they have a weak case and value it accordingly.

We all want to find out as quickly as possible how good a case it is.  We really don't want to spend all of our time and money just doing discovery.  The whole point of discovery is to discover how good your case is and then resolve it.

I'm very oriented to resolving cases.  That's really most of my life.  I wasn't an eDiscovery lawyer most of my career.  I was a trial lawyer, and I think that perspective is lacking from some of the vendors and some of the analysts and some of the other people in eDiscovery.  People seem to think discovery is an end in itself.  It's not.  It's just a way to prepare for trial.

So, there is no reason to get all of the relevant evidence.  That's an archaic notion of the past.  There's too much relevant evidence.  All that counts is the important relevant evidence.  The smoking guns are what counts.  The highly relevant or hot documents are what counts.

You do have to wade through some relevant documents to get there, but the point is to get there.  It gets back to my “seven plus or minus two” rule.  It's not my rule.  It's an old rule of persuasion.  That's never going to change.  People are never going to remember more than seven documents at a trial.  They just can't.  The juror's mind is not capable of it.

Lawyers can handle probably several hundred exhibits, and they can keep it in their head.  But, they don't make the decisions.  And, the several hundred exhibits are merely predicates or evidentiary foundations in order to get the key exhibits out there that you then use in your closing argument.

The point of discovery and litigation is to identify and locate these key documents.  When you understand that, then you'll accept and understand the fact that you don't need all relevant information, all relevant documents.  You just need the most highly relevant documents so that you can feel pretty confident you've got the handful of documents you need to try the case.

The thing that’s exciting about predictive coding is its ranking abilities.  You don't have to look at the junk that's not really that relevant.  You only look at the most relevant documents, whether it’s the most relevant 5,000, 50,000 or 100,000.  Whatever it is that's appropriate to your size case.  You're not going to look at 100,000 documents in a $250,000 dollar discrimination case.  It makes no sense.

That's where you get back to proportionality.  It's a somewhat long answer to your question, but people need to understand that this isn't a way to hide the truth.  It's really a way to get the truth out there in an efficient, economic manner.

So, based on the five dollar per document review cost example in your post, if you have $25,000 to spend, you can review the top 5,000 documents, right?

That's right.  And the five dollars is just like a working number that you use.  Some document collections can be even more expensive and difficult.  For example, a collection with a lot of 20-page spreadsheets (where you actually determine what's confidential and what's not in each sheet) can drive that number up.  Banking cases are a nightmare.  You've got all this financial information, where some of it's relevant and some of it's not.  For other cases, it can be a lot cheaper.  But, you also have to take some vendor claims with a big grain of salt.  “Oh, I'll do your whole thing for you for a buck a document.”  Will you?  Really?  What does that include?

Thanks, Ralph, for participating in the interview!

And to the readers, just a reminder that part two of our interview with Ralph Losey will be published tomorrow.  Don't miss it!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

eDiscovery Trends: Brian Schrader of Business Intelligence Associates (BIA)
 

This is the fifth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brian Schrader. Brian is Co-Founder and President of Business Intelligence Associates, Inc. (BIA).  Brian is an expert and frequent writer and speaker on eDiscovery and computer forensics topics, particularly those addressing the collection, preservation and processing functions of the eDiscovery process.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

Well, I think you don't have to walk around the floor very much to see that this year everybody is talking about predictive coding.  I think you're going to see that shake out a lot over the next year.  We've been doing predictive coding for about a year and a half now, and we have our own algorithms for that.  We have our review teams, and they've been using our algorithms to do predictive coding.  We like to call it “suggestive coding”.

What I expect you’ll find this year is a standard shakeout among providers because everybody talks about predictive coding.  The question is how does everybody approach it?  It's very much a black-box solution.  Most people don't know what goes on inside that process and how the process works.  So, I think that's going to be a hot topic for a while.  We're doing a lot of predictive coding and BIA is going to be announcing some cool things later this year on our predictive coding offerings.

Every provider that you talk to seems to have a predictive coding solution.  I'm really looking forward to seeing how things develop, because we have a lot of input on it and a lot of experience.  We have our review team that is reviewing millions and millions of documents per year, so we can compare various predictive coding engines to real results.  It gives us the ability to review the technology.  We look forward to being part of that conversation and I hope to see a little bit more clarity from the players and some real standards set around that process.

The courts have now also started to look at these algorithmic methods, Judge Peck in particular.  Everybody agrees that key word searching is inadequate.  But, people are still tentative about it – they say “it sounds good, but how does it work?  How are we going to approach it?”

Which trend(s), if any, haven’t emerged to this point like you thought they would?

Frankly, I thought we'd see a lot more competition for us in data collection.  A huge pain point for companies is how to gather all their data from all over the world.  It's something we've always focused on.  I started to see some providers focus on that, but now it looks like everybody, even some of the classic data collection providers, are focusing more on review tools.  That surprises me a bit, though I'm happy to be left with a wide-open field to have more exposure there.

When we first came out with TotalDiscovery.com last year, we thought we'd see all sorts of similar solutions pop up out there, but we just haven't.  Even the traditional collection companies haven't really offered a similar solution.  Perhaps it’s because everybody has a “laser focus” on predictive coding, since document review is so much more expensive.  I think that has really overpowered the focus of a lot of providers as they've focused only on that.  We have tried to focus on both collection and review.

I think data processing has become a commodity.  In talking to customers, they don't really ask about it anymore.  They all expect that everybody has the same base level capabilities.  Everybody knows that McDonald's secret sauce is basically Thousand Island dressing, so it’s no longer unique, the “jig is up”.  So, it's all about the ends, the collection, and the review.

What are your general observations about LTNY this year and how it fits into emerging trends?

Well, predictive coding again.  I think there's an awful lot of talk but not enough detail.  What you're seeing is a lot of providers who are saying “we’ll have predictive coding in six months”.  You're going to see a huge number of players in that field this year.  Everybody's going to throw a hat in the ring, and it's going to be interesting to see how that all works out.  Because how do you set the standards?  Who gets up there and really cooperates? 

I think it's really up to the individual companies to get together and cooperate on this. This particular field is so critical to the legal process that I don't think you can have everybody having individual standards and processes.  The most successful companies are going to be the ones that step up and work together to set those standards.  And, I don't know for sure, but I wouldn't be surprised if The Sedona Conference already has a subcommittee on this topic.

What are you working on that you’d like our readers to know about?

Our biggest announcement is around data collection – we've vastly expanded it.  Our motto is to collect “any data, anytime, anywhere”.  We've been providing data collection services for over a decade, and our collection guys like to say they've never met a piece of data they didn't like.

Now, we've brought that data collection capability direction to TotalDiscovery.com.  The latest upgrade, which we’re previewing at the show to be released in March, will offer the ability to collect data from social media sites like Facebook, Twitter, as well as collections from Webmail and Apple systems.  So, you can collect pretty much anything through TotalDiscovery.com that we have historically offered in our services division. It gives you a single place to manage data collection and bring it all together in one place, and then deliver it out to the review platform you want.

We’re on a three-week development cycle, which doesn’t always mean new features every three weeks, but it does mean we’re regularly adding new features.  Mid-year in 2011, we added legal hold capabilities and we’ve also recently added other components to simplify search and data delivery.  Now, we’ve added expanded collection for social media sites, Webmail and Apple.  Later this year, we expect to release our predictive coding capabilities to enable clients to perform predictive coding right after collection instead of waiting until the data is in the review tool.

Thanks, Brian, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!