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eDiscoveryDaily

eDiscovery Case Law: Award for Database Costs Reversed Due to Cost Sharing Agreement
 

An award of costs of $938,957.72, including the winning party’s agreed half share of the cost of a database or $234,702.43, was reversed in Synopsys, Inc. v. Ricoh Co. (In re Ricoh Co. Patent Litigation), No. 2011-1199 (Fed. Cir. Nov. 23, 2011). While the cost of the database could have been taxed to the losing party, the agreement between the parties on cost sharing controlled the ultimate taxation of costs.

After almost seven years of litigation, Synopsys obtained summary judgment and a declaration in Ricoh’s action against seven Synopsys customers that a Ricoh software patent on integrated circuits had not been infringed. During the litigation, Ricoh and Synopsis were unable to agree on a form of production of Synopsis email with its customers, and Ricoh suggested using an electronic discovery company to compile and maintain a database of the email. Synopsis agreed to use of the company’s services and to pay half the cost of the database. After Synopsis obtained summary judgment, the district court approved items in the Synopsis bill of costs totaling $938,957.72, including $234,702.43 for Synopsis’ half share of the cost of the database and $234,702.43 for document production costs.

The court on appeal of the taxation of costs agreed that 28 U.S.C.S. § 1920 provided for recovery of the cost of the database, which was used to produce email in its native format. According to the court, “electronic production of documents can constitute ‘exemplification’ or ‘making copies’ under section 1920(4).” However, the parties had entered into an agreement on splitting the cost of the database and nothing in the 14-page agreement or communications regarding the agreement indicated that the agreement was anything other than a final agreement on the costs of the database. Faced with “scant authority from other circuits as to whether a cost-sharing agreement between parties to litigation is controlling as to the ultimate taxation of costs,” the court concluded the parties’ cost-sharing agreement was controlling. It reversed the district court’s award of $234,702.43 for Synopsis’ half share of the cost of the database.

The court also reversed and remanded the award of an additional $234,702.43 for document production costs because those costs were not adequately documented. For example, many of the invoices simply stated “document production” and did not indicate shipment to opposing counsel. The court stated that the “document production” phrase “does not automatically signify that the copies were produced to opposing counsel.”

So, what do you think?  Should the agreement between parties have superseded the award?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

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: Joseph Collins
 

This is the fifth of our Holiday Thought Leader Interview series, originally scheduled to be published on Tuesday, but rescheduled to today.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is Joseph Collins.  Joseph is the co-founder and president of VaporStream, which provides recordless communications. Joseph previously worked in the energy marketplace, but has become an advocate for private communication in business, even within the legal community.

Your product is designed to provide email-like communications that leave no record after being read. How did you get interested in communications that do not leave records? Why is this a legitimate business need?

We got into recordless communications because of the basic lack of privacy and confidentially online.  When I got my first email account back in the day I was told to be very careful what I write because you have no control over that message; I had to write like what I was writing was going to be on the front page of the newspaper.  The problem is people just don’t communicate that way, people need privacy and email and text just do not allow for it.

There is a legitimate business need because businesses need privacy and confidentiality for their internal communications.  Many times employees need to have confidential discussions and VaporStream facilitates that.  Have frank and honest communications are paramount in any company, and it is very hard to have that when think that that email and conversation might be end up in the wrong place.

Businesses do not need to “keep everything,” in fact they need to be able to decide what is considered to be material business information and what is not.  VaporStream facilities this decision making process because the data creator is going to be much better at knowing what need to be retained then a record management person on the back end.

How do you address the concerns of the legal community about VaporStream communications? Lawyers have been trained to keep records of everything- why should they consider using a service like yours?

Most lawyers keep everything because they already get private communications via attorney privilege, but also because they bill by the hour and want the email to prove it.  So lawyers are not our target market, but their clients are, and lawyers understand the risk and liability in communications.  There is one set of lawyers that can and do use VaporStream: IP lawyers. Their email is discoverable as part of the patent process, so we find IP lawyers like to use it to have those private and confidential communications that they need to effectively do their job.

Does VaporStream enable law breaking? If the executives at Enron had used a product like this, would they have gotten away with conspiring to manipulate financial data?

VaporStream is a technology and any technology can be misused, just like a knife or a car, there are benefits and possible misuse. From a corporate prospective you can use our VaporStream Enterprise Server, which will allow you to use filters just like corporate email and give companies protection from misuse.

In no way would VaporStream have helped Enron. The guys at Enron got caught because they commit fraud, not because of some smoking gun in email discovery. It was the fraud that bankrupted Enron, not the communications around it.  

Do you think that organizations over-preserve electronic evidence? Is there an argument to be made for more data destruction and less retention?

Absolutely, but the question is how do you accomplish this task. Best practices for data preservation and destruction have been around for a while now, but are companies better off today? Looking at the headlines for newspapers and the mountains of eDiscovery, it is clear the answer is no.

VaporStream allows companies to keep the valuable business information in email and then automatically get rid of the non-material information that is created by the company. By keeping information you do not need, not only are you are wasting lots of money each year, but it is a tremendous legal liability. Again, most companies are not obligated to “keep everything,” so it’s crazy to do so.  

What does this mean for eDiscovery? Could parties get in trouble for a failure to preserve evidence if it's discovered they use a service like VaporStream to communicate information relevant to a case?

Well, the key to using VaporStream is to have sound user policy. Then users will know when to use VaporStream and when not to use it. If there is a situation where there is say, a legal hold, then it probably would not a good choice to use VaporStream at that situation. By having the proper user policy, the company is protected, and VaporStream is an extension of that policy.

What is the future of this kind of communication? How does recordless communication fit into a world of social media and mobile computing where people leave digital communications all over the place?

When we look at the communications landscape, there are lots of places to share, which is great, but there is no place to have a private conversation. It’s hard to have honest and frank discussions without having trust in the communications channel.  If you think about the online world as an extension of the real world there still needs to be a place to have a private chat.

Thanks, Joseph, 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!

Editor's Note: eDiscovery Daily will take a break for a couple of days to celebrate the holidays and will resume posts on Tuesday, December 27.  Happy Holidays from all of us at Cloudnine Discovery and eDiscovery Daily!

eDiscovery Trends: Sharon Nelson
 

This is the sixth and final installment of our Holiday Thought Leader Interview series. I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is Sharon Nelson.  Sharon is the President of Sensei Enterprises, where she has worked on the front lines of computer forensics and eDiscovery topics that are also discusses on her blog Ride the Lightning. She is a graduate of the Georgetown University Law Center and is the president elect of the Virginia Bar Association.

Last week, I interviewed Sharon’s husband, John Simek, who is vice president of Sensei. John is a technical computer forensics expert, while Sharon provides the legal perspective on eDiscovery issues. Together, they are frequent speakers and authors on computer forensic issues.

As a lawyer, how did you get into the world of computer forensics? What is the role of an attorney within a computer forensics firm?

I stumbled into computer forensics along with my partner John Simek. Peter Greenspun, one of the leading criminal attorneys in Virginia, had a case in 1999 involving electronic evidence and he asked if we could help as experts. That case is still taught by the FBI. It got me thinking that Sensei should expand from information technology to computer forensics – and I knew it was a field that only a true scientist could excel in, so the wannabes of the world would not be able to truly compete. The role of an attorney is to stay up with the law and the cases and render expert advice to both clients and employees – and act as corporate counsel of course.

How has your blogging at Ride the Lightning influenced your legal career?

Within the context of Sensei, I operate as an expert, not as a lawyer, although I retain a separate law office. Certainly Ride the Lightning has helped Sensei’s marketing enormously, which ultimately helps to attract clients. I was honored when RTL was named to the American Bar Association’s Blawg 100 for the second year in a row and also when the Library of Congress asked my permission to archive it and to make it available to scholars and researchers. And it is just plain fun writing it!

Have lawyers begun to grapple with social media issues or are many still in denial?

There are still some lawyers in denial but their numbers are declining. In fact, I organize a lot of CLEs and many of the social media sessions are standing room only. Many lawyers want to learn how to use social media and how to avoid the ethical pitfalls. Things simply go viral in this new e-world. It is amazing how far social media (which includes blogs) extends your reach. Blogs, in particular, tend to attract reporters, which can be really helpful to marketing a law practice.

I believe you are involved in a lot of family law cases and disputes involving individuals. How has social media changed these cases?

It’s a veritable gold mine. People are unbelievably foolish in what they put online. We had a case where the husband was discussing his latest hookup with his lover on his Facebook page. He knew his wife was not his “friend”, but he had forgotten that a mutual acquaintance was his friend and she simply printed out all his postings. It’s not just family law though – social media is particularly helpful in personal injury cases where the Plaintiff who is “wholly disabled” is using a chain saw and dancing a jig (and yes, that’s from a real case). I almost can’t think of an area of law where social media isn’t a treasure trove – law enforcement has wholly embraced it as evidence against criminals who post astonishing admissions online.

As people increasingly live their lives online, do digital records ever really go away? Are we going to be followed around by our digital selves forever?

Some digital records will certainly go away – the problem is that you’ll never know which ones. People forward your communications or preserve them for their own reasons. Your business competitor may be archiving your website and anything that is open on your social media sites. Social media sites let you deactivate your account or delete posts, but that doesn’t help if someone else already has the information. And, indeed, it does not appear that social media sites truly delete your information since law enforcement has been known to get data that was supposedly no longer online. Trusting social media sites to respect your privacy is foolhardy. The only privacy we have is in the sheer volume of data out there – but once someone lasers in on you, your privacy is gone.

On Ride the Lightning, you discuss sanctions and electronic evidence blunders. Is there a common reason why lawyers make mistakes with digital evidence? What are the keys to making the profession smarter about handling computer records?

Education is the key, and we’re slowly getting there, but it is very slow. Most lawyers are technophobic and find it difficult to understand electronic evidence. They really need to call in well-qualified experts early on – that saves the most money because good experts won’t let you spend your money foolishly. As an example, an order to “preserve everything” is nonsensical, but we hear it all the time. If the attorneys on both sides are reasonable and they have good experts, it’s amazing how fast they can come to a strategy that saves everyone time and money. And for heaven’s sake, why not go after the low-hanging fruit first? That might cause the case to settle early before vast sums of money have been expended. You can always go back and do more digging if necessary.

How have you and husband John Simek managed to make a career out of computer forensics and eDiscovery? You seem to be busy with speaking and professional engagements- how do you make it work?

That’s the new world – our offices are in our laptops, so we carry our offices with us as we travel. There is very little that we cannot do remotely. We have fine-tuned the art of entering a hotel room and bringing up the laptops while unpacking our suitcases. People ask us all the time how a husband and wife can run a business and not make each other crazy. We really have a bright line – John makes the technical decisions and I make the legal, business and marketing decisions. We talk across that line, but we respect the line. It works for us – that and being in love of course. We always say that we get paid to play – we don’t know anyone who enjoys coming to work as much as we do. The word retirement is anathema to both of us!

Thanks, Sharon, 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 Case Law: Lilly Fails to Meet its eDiscovery Burden, Sanctions Ordered

In Nacco Materials Handling Group, Inc. v. Lilly Co., No. 11-2415 AV, (W.D. Tenn. Nov. 16, 2011), the court required the defendant to bear the costs of discovery where its preservation and collection efforts were “woefully inadequate.” Parties must cooperate and voluntarily preserve, search for, and collect ESI to avoid the imposition of sanctions.

In this case, Nacco, a manufacturer and seller of lift trucks and aftermarket parts, accused Lilly, a former Nacco dealer, of illegally accessing its proprietary, password-secured website on over 40,000 occasions. Nacco asserted a host of claims, including violations of the Computer Fraud and Abuse Act, computer trespass, misappropriation of trade secrets, tortious interference with contract and business relations, and tortious interference with prospective economic advantage.

Nacco filed a motion seeking expedited discovery so that its forensic expert could search Lilly’s computers and determine which computers accessed Nacco’s proprietary information. The expert turned up evidence of inappropriate access on 17 of the 35 computers he examined.

As discovery continued, Nacco also requested the deposition of a 30(b)(6) witness. However, the witness Lilly offered was unprepared to answer questions on the topics outlined in the deposition notice. Based on the witness’s statements in the deposition and evidence found during the forensic examination, Nacco filed a motion to prevent the further spoliation of evidence and sought sanctions.

The court decided that Lilly’s attempts to preserve evidence were “woefully inadequate.” The company “failed to take reasonable steps to preserve, search for, and collect potentially relevant information, particularly electronic data, after its duty to preserve evidence was triggered by being served with the complaint.” Specifically, U.S. Magistrate Judge Diane Vescovo found that the company “failed to timely issue an effective written litigation hold, to take appropriate steps to preserve any existing electronic records, to suspend or alter automatic delete features and routine overwriting features, and to timely and effectively collect ESI.”

The court explained that Lilly sent the litigation hold to seven of its 160 employees without adequate instructions—and the seven did not include the “key players” to the litigation. The company made no further efforts to prevent the deletion of e-mail, data, or backup tapes. Finally, the company apparently “left collection efforts to its employees to search their own computers with no supervision or oversight from management. Lilly did not follow up with its employees to determine what efforts were taken to preserve and collect relevant evidence, and Lilly failed to document any of its search and collection efforts.” Therefore, the court found that Lilly breached its duty to preserve relevant evidence.

After finding the company negligent, the court imposed sanctions against Lilly that included the expense of additional discovery, including the cost of a second 30(b)(6) deposition, the forensic examinations and imaging already complete, the costs of additional analysis of computers of the nine employees who accessed Nacco’s website, and the costs of imaging the computers in its service department. In addition, the court ordered Lilly to pay monetary sanctions equal to plaintiff’s reasonable costs, including attorney’s fees, in bringing the motion.

Finally, the court ordered Lilly to provide an affidavit describing its preservation and collection efforts and certifying that it had suspended its automatic delete functions and preserved backup tapes.

So, what do you think?  Were the sanctions justified? If so, did the court go far enough?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

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: Interview with Joseph Collins Delayed
 

We were unable to finalize the interview with Joseph Collins, president and co-founder of VaporStream in time for publication today as originally scheduled.  The interview will be published at a later date.  Our apologies for the delay.

eDiscovery Trends: Joshua Poje
 

This is the fourth of our Holiday Thought Leader Interview series. I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is Joshua Poje.  Joshua is a Research Specialist with the American Bar Association’s Legal Technology Resource Center, which publishes the Annual Legal Technology Survey. He is a graduate of DePaul University College of Law and Augustana College. 

Why does the American Bar Association produce an annual legal technology survey? Why does legal technology demand special attention?

Technology is inescapable for lawyers today. It's integrated into most aspects of the profession, whether that's communicating with clients, interacting with the courts, or marketing a practice. At this point, if you want to understand how lawyers are practicing, you really have to understand how they're using technology.

That's what we're trying to measure with our survey and that's also the reason we direct our survey questionnaires to practicing attorneys rather than to IT staff or vendors. We aren't just interested in learning what tools are on the market or what technology firms are purchasing; we want to know what they're actually using.

How long have you been involved with the ABA Legal Technology Survey, and how has it changed in that time?

The 2011 ABA Legal Technology Survey Report is the fifth edition I've worked on personally, but the survey has been running in various forms for more than 15 years. Aside from moving to electronic publishing via PDF in 2008, the biggest change we've made in the time I've been here was adding a sixth volume–Technology Basics. That volume allowed us to take a deeper dive into basic questions about budgeting, training, and security.

Aside from that, most of the changes in the survey are evolutionary. We sit down every Fall and evaluate the questionnaire, sometimes adding a few questions about new technology and sometimes dropping questions about technology that's fallen out of use. We try to maintain a high level of consistency from year-to-year so that we can take a meaningful look at trends.

Lawyers have a reputation for being late adopters of technology and even technophobic in many respects. Is this an accurate assessment? Has that changed, or is there still an element of truth to the stereotype?

Lawyers are in a difficult position when it comes to new technology. Normal businesses and organizations have to deal with issues like cost, training, and implementation obstacles when they adopt new technology, and the biggest risk is usually just losing money. Lawyers share those challenges and risks, but also have to consider their obligations under their states' rules of professional conduct. A misstep under the rules can have serious and long-lasting professional consequences. So I think it's understandable that some lawyers take a cautious approach to new technology.

That said, lawyers have certainly become more comfortable with new technology over the last few years. Take Twitter, for example. A recent Pew study found that 13 percent of online adults use Twitter. That's right in line with our 2011 survey, where 14 percent of our lawyer respondents reported using Twitter for personal, non-professional purposes. Around 6 percent even use it for professional activities.

In some cases, lawyers actually seem to be leading on technology. A Nielsen study from May 2011 found that just 5 percent of US consumers own a tablet device like the iPad. In our survey, 20 percent of our respondents reported having tablets available at their firms with 12 percent reporting that they personally use the devices.

There seems to be a new trend or buzzword ever few years that dominates the legal technology conversation. At one point it was all about knowledge management and now it seems to be cloud computing, and then whatever comes next. Do you get the sense legal technologists are prone to getting taken in by hype? Or are they generally practical consumers of technology?

The endless hype cycle is just a reality of the technology sector, legal or otherwise. I think our challenge as legal technology professionals is to navigate the hype to identify the useful, practical tools and strategies that lawyers and other legal professionals can put to good use. We also have to be on alert for the technology that might be problematic for lawyers, given the rules of professional conduct.

There are certainly times when the technology we love doesn't catch on with practicing attorneys. Technology experts have been pushing RSS for years, and yet in 2011 we still had 64 percent of our respondents report that they never use it. But on the other hand, "paperless" was the hot buzzword five or six years ago, and now it's a standard strategy at many law firms of all sizes.

Have the demands of eDiscovery forced the profession to come to grips with their own technology use? Are lawyers more savvy about managing their data?

EDiscovery has certainly been influential for some attorneys, but it's worth noting that 42 percent of our respondents in 2011 reported that they never receive eDiscovery requests on behalf of their clients, and 49 percent reported that they never make eDiscovery requests. Those numbers have barely moved over the last few years.

As you might expect, electronically stored information (ESI) has generally been a bigger concern at the large law firms. In 2011, 77 percent of respondents at firms with 500+ attorneys reported that their firm had been involved in a case requiring processing/review of ESI, compared to just 19 percent of solo practitioners. Those large firms, however, outsource a significant amount of their eDiscovery processing. In 2011, 62 percent reported outsourcing eDiscovery processing to eDiscovery consultants, 50 percent outsourced to computer forensics specialists, and 35 percent outsourced to other lawyers in the U.S.

What trends and technologies are you most interested in following in the next survey?

Cloud computing is definitely a topic to keep an eye on. In 2011, 76 percent of our respondents reported that they had never used a cloud-based tool for legal tasks. Of those, 63 percent cited unfamiliarity with the technology as a reason. A lot of attention has been focused on the cloud this year, though, particularly after Apple's iCloud announcement. It'll be interesting to see how those numbers move in 2012.

Mobile technology should be another interesting area. BlackBerry held onto the overall lead for smartphones in 2011, but iOS and Android made substantial gains. Among our solo and small firm respondents, the iPhone actually led the BlackBerry. Will that carry over to the larger firms in 2012? And on the tablet front, it should be interesting to see how the market shifts. In 2011, 96 percent of the respondents who reported having a tablet available specified the iPad. Apple now has competition from Motorola, Samsung, RIM, HP and others, so it's possible we could see movement in the numbers.

Thanks, Joshua, 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: John Simek
 

This is the third of our Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is John Simek. John is the Vice President of Sensei Enterprises, a computer forensics firm in Fairfax, Va, where he has worked since 1997. He is an EnCase Certified Examiner and is a nationally known testifying expert in computer forensic issues. Together with his wife, Sharon Nelson, John has become a frequent speaker on eDiscovery topics and digital forensic issues. We have also interviewed Sharon, who serves as Sensei’s President, for this series, and her interview will appear this coming Wednesday.

You have been a forensic examiner for a long time. How has the business changed over that time? How much does the rate of change in computer technology make your job difficult? Has social media and mobile technology changed the nature of your work and the evidence in play?

Certainly the technology changes present a challenge for any forensic examiner. We are constantly investing in training and tools to deal with the changing landscape. Social media investigations and mobile devices are explosive forms of evidence for many of our cases. The constant changes in smartphones means we must have dozens of tools to extract data from iPads, Androids, BlackBerrys, iPhones, tablets and other mobile devices. Access to social media data varies as well. Some is readily available in the public areas, some may reside on the actual computer used to access the social media sites and some data may be held by the providers themselves, where the user has no clue it is being collected.

There have been several cases of law firms and EDD providers suing each other of late. Why is there this seeming rise in conflict and how does it affect relationships in the industry?

I’ve only seen two such cases and they get ugly really quick. I think the primary reason is lack of transparency and adequate communication. The client should always know what the anticipated costs and effort will be. Should scope change then a new estimate needs to be communicated. I think all too often the EDD providers launch out of the gate and the costs spiral out of control. Obviously, if you are one of those providers that ended up in court over fees or even inadequate or improper processing of ESI, your reputation will be forever spoiled.

There are a lot of certifications a forensic examiner can obtain. What is the value of certification? How should buyers of EDD services evaluate their forensic examiners?

Certifications are a good starting point, although I think they have lost their value over the last several years. Perhaps the tests are getting easier, but I’m seeing folks with forensic certifications that shouldn’t be trusted with a mouse in their hand. Don’t just look to forensic certifications either. Other technology (network, operating system, database, etc.) certifications are also valuable. Check CVs. Do they speak, write and have previous experiences testifying? One of the best methods of evaluation is referrals. Did they do a quality job? Were they on time? Did the costs fall within budget?

You’ve done a lot of work in family law cases. In cases where emotions are running high, how do you counsel clients? Is there a way to talk to people about proportionality when they are angry?

You’ve hit the nail on the head. There is very little logic in family law cases, especially when emotions are running high. I’ve lost count of the number of times we’ve told clients NOT to spend their money on continuing or even starting a forensic analysis. Some listen and some don’t. The exception is where there are issues pertaining to the welfare of any children. We had one case where dad was into BDSM and exhibiting similar behavior towards the children. Mom had no job and was extremely brutalized from the abuse over the years. We completed that case pro bono as it was the right thing to do. Dad lost custody and ordered supervised visitation only.

There has been a lot of hype about EDD services for small firms. In your experience, is this becoming a reality? Can small and solo firms compete with large firms for more EDD cases?

Electronic evidence plays a part in more and more cases. There is a crying need for better tools and methods to review ESI in the smaller cases. Thankfully, some vendors are listening. Products like Digital Warroom and Nextpoint’s products are very affordable for the smaller cases and don’t require a large investment by the solo or small firm attorney. These are hosted solutions, which means you are using the cloud. Large firms are also using hosted solutions, but may use other vendor products depending on the type of data (e.g. foreign language) and/or volume.

You testify in a lot of cases as an expert witness. What are the reasons your services might be needed in this area? What are common reasons that forensic evidence is being challenged, and how can legal teams avoid being challenged?

The good news is that less than 10% of our cases end up going to trial. As we say in the forensic world, “The truth is the truth.” Once we have had a chance to analyze the evidence and report the findings, there are rarely any challenges. That’s what a forensic exam is all about- being repeatable. The opposing party’s examiner better find the same results. The challenge may come from the interpretation of the results. This is where experience and knowledge of the expert comes into play. Many of the forensic examiners today have never used a computer without a graphical interface. Remember the Casey Anthony case? I cringed when I heard the prosecution testimony about the activity surrounding the Internet searches. It failed the smell test in my mind, which ended up being true since the expert later admitted there was a problem with the software that was used.

Would you recommend a similar career path to young technologists? What do you like about being a forensic examiner?

Some universities are now offering degrees in Digital Forensics or some similar name. I’m not sure I would go the route of computer forensics as a baseline. I’m seeing more activity in what I would call digital investigations. This includes network forensics and dealing with cases such as data breaches. We are doing more and more of these types of exams. It’s sort of like following the data trail. Probably the single best thing about being a forensic examiner is getting to the truth. Since we also do criminal defense work, there are many times that we’ve had to call the attorney and tell them that their client needs a new story.

Thanks, John, 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: Bennett Borden
 

This is the second of our Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today's thought leader is Bennett B. Borden. Bennett is the co-chair of Williams Mullen’s eDiscovery and Information Governance Section. Based in Richmond, Va., his practice is focused on Electronic Discovery and Information Law. He has published several papers on the use of predictive coding in litigation. Bennett is not only an advocate for predictive coding in review, but has reorganized his own litigation team to more effectively use advanced computer technology to improve eDiscovery.

You have written extensively about the ways that the traditional, or linear review process is broken. Most of our readers understand the issue, but how well has the profession at large grappled with this? Are the problems well understood?

The problem with the expense of document review is well understood, but how to solve it is less well known. Fortunately, there is some great research being done by both academics and practitioners that is helping shed light on both the problem and the solution. In addition to the research we’ve written about in The Demise of Linear Review and Why Document Review is Broken, some very informative research has come out of the TREC Legal Track and subsequent papers by Maura R. Grossman and Gordon V. Cormack, as well as by Jason R. Baron, the eDiscovery Institute, Douglas W. Oard and Herbert L. Roitblat, among others.  Because of this important research, the eDiscovery bar is becoming increasingly aware of how document review and, more importantly, fact development can be more effective and less costly through the use of advanced technology and artful strategy. 

You are a proponent of computer-assisted review- is computer search technology truly mature? Is it a defensible strategy for review?

Absolutely. In fact, I would argue that computer-assisted review is actually more defensible than traditional linear review.  By computer-assisted review, I mean the utilization of advanced search technologies beyond mere search terms (e.g., topic modeling, clustering, meaning-based search, predictive coding, latent semantic analysis, probabilistic latent semantic analysis, Bayesian probability) to more intelligently address a data set. These technologies, to a greater or lesser extent, group documents based upon similarities, which allows a reviewer to address the same kinds of documents in the same way.

Computers are vastly superior to humans in quickly finding similarities (and dissimilarities) within data. And, the similarities that computers are able to find have advanced beyond mere content (through search terms) to include many other aspects of data, such as correspondents, domains, dates, times, location, communication patterns, etc. Because the technology can now recognize and address all of these aspects of data, the resulting groupings of documents is more granular and internally cohesive.  This means that the reviewer makes fewer and more consistent choices across similar documents, leading to a faster, cheaper, better and more defensible review.

How has the use of [computer-assisted review] predictive coding changed the way you tackle a case? Does it let you deploy your resources in new ways?

I have significantly changed how I address a case as both technology and the law have advanced. Although there is a vast amount of data that might be discoverable in a particular case, less than 1 percent of that data is ever used in the case or truly advances its resolution. The resources I deploy focus on identifying that 1 percent, and avoiding the burden and expense largely wasted on the 99 percent. Part of this is done through developing, negotiating and obtaining reasonable and iterative eDiscovery protocols that focus on the critical data first. EDiscovery law has developed at a rapid pace and provides the tools to develop and defend these kinds of protocols. An important part of these protocols is the effective use of computer-assisted review.

Lately there has been a lot of attention given to the idea that computer-assisted review will replace attorneys in litigation. How much truth is there to that idea? How will computer-assisted review affect the role of attorneys?

Technology improves productivity, reducing the time required to accomplish a task. This is no less true of computer-assisted review. The 2006 amendments to the Federal Rules of Civil Procedure caused a massive increase in the number of attorneys devoted to the review of documents. As search technology and the review tools that employ them continue to improve, the demand for attorneys devoted to review will obviously decline.

But this is not a bad thing. Traditional linear document review is horrifically tedious and boring, and it is not the best use of legal education and experience. Fundamentally, litigators develop facts and apply the law to those facts to determine a client’s position to advise them to act accordingly. Computer-assisted review allows us to get at the most relevant facts more quickly, reducing both the scope and duration of litigation. This is what lawyers should be focused on accomplishing, and computer-assisted review can help them do so.

With the rise of computer-assisted review, do lawyers need to learn new skills? Do lawyers need to be computer scientists or statisticians to play a role?

Lawyers do not need to be computer scientists or statisticians, but they certainly need to have a good understanding of how information is created, how it is stored, and how to get at it. In fact, lawyers who do not have this understanding, whether alone or in conjunction with advisory staff, are simply not serving their clients competently.

You’ve suggested that lawyers involved in computer-assisted review enjoy the work more than in the traditional manual review process. Why do you think that is?

I think it is because the lawyers are using their legal expertise to pursue lines of investigation and develop the facts surrounding them, as opposed to simply playing a monotonous game of memory match. Our strategy of review is to use very talented lawyers to address a data set using technological and strategic means to get to the facts that matter. While doing so our lawyers uncover meaning within a huge volume of information and weave it into a story that resolves the matter. This is exciting and meaningful work that has had significant impact on our clients’ litigation budgets.

How is computer assisted review changing the competitive landscape? Does it provide an opportunity for small firms to compete that maybe didn’t exist a few years ago?

We live in the information age, and lawyers, especially litigators, fundamentally deal in information. In this age it is easier than ever to get to the facts that matter, because more facts (and more granular facts) exist within electronic information. The lawyer who knows how to get at the facts that matter is simply a more effective lawyer. The information age has fundamentally changed the competitive landscape. Small companies are able to achieve immense success through the skillful application of technology. The same is true of law firms. Smaller firms that consciously develop and nimbly utilize the technological advantages available to them have every opportunity to excel, perhaps even more so than larger, highly-leveraged firms. It is no longer about size and head-count, it’s about knowing how to get at the facts that matter, and winning cases by doing so.

Thanks, Bennett, 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: Jason R. Baron
 

This is the first of the Holiday Thought Leader Interview series.  I interviewed several thought leaders to get their perspectives on various eDiscovery topics.

Today’s thought leader is Jason R. Baron. Jason has served as the National Archives' Director of Litigation since May 2000 and has been involved in high-profile cases for the federal government. His background in eDiscovery dates to the Reagan Administration, when he helped retain backup tapes containing Iran-Contra records from the National Security Council as the Justice Department’s lead counsel. Later, as director of litigation for the U.S. National Archives and Records Administration, Jason was assigned a request to review documents pertaining to tobacco litigation in U.S. v. Philip Morris.

He currently serves as The Sedona Conference Co-Chair of the Working Group on Electronic Document Retention and Production. Baron is also one of the founding coordinators of the TREC Legal Track, a search project organized through the National Institute of Standards and Technology to evaluate search protocols used in eDiscovery. This year, Jason was awarded the Emmett Leahy Award for Outstanding Contributions and Accomplishments in the Records and Information Management Profession.

You were recently awarded the prestigious Emmett Leahy Award for excellence in records management. Is it unusual that a lawyer wins such an award? Or is the job of the litigator and records manager becoming inextricably linked?

Yes, it was unusual: I am the first federal lawyer to win the Emmett Leahy award, and only the second lawyer to have done so in the 40-odd years that the award has been given out. But my career path in the federal government has been a bit unusual as well: I spent seven years working as lead counsel on the original White House PROFS email case (Armstrong v. EOP), followed by more than a decade worrying about records-related matters for the government as Director of Litigation at NARA. So with respect to records and information management, I long ago passed at least the Malcolm Gladwell test in "Outliers" where he says one needs to spend 10,000 hours working on anything to develop a level of "expertise."  As to the second part of your question, I absolutely believe that to be a good litigation attorney these days one needs to know something about information management and eDiscovery — since all evidence is "born digital" and lots of it needs to be searched for electronically. As you know, I also have been a longtime advocate of a greater linking between the fields of information retrieval and eDiscovery.

In your acceptance speech you spoke about the dangers of information overload and the possibility that it will make it difficult for people to find important information. How optimistic that we can avoid this dystopian future? How can the legal profession help the world avoid this fate? 

What I said was that in a world of greater and greater retention of electronically stored information, we need to leverage artificial intelligence and specifically better search algorithms to keep up in this particular information arms race. Although Ralph Losey teased me in a recent blog post that I was being unduly negative about future information dystopias, I actually am very optimistic about the future of search technology assisting in triaging the important from the ephemeral in vast collections of archives. We can achieve this through greater use of auto-categorization and search filtering methods, as well as a having a better ability in the future to conduct meaningful searches across the enterprise (whether in the cloud or not). Lawyers can certainly advise their clients how to practice good information governance to accomplish these aims.

You were one of the founders of the TREC Legal Track research project. What do you consider that project’s achievement at this point?

The initial idea for the TREC Legal Track was to get a better handle on evaluating various types of alternative search methods and technologies, to compare them against a "baseline" of how effective lawyers were in relying on more basic forms of keyword searching. The initial results were a wake-up call, in showing lawyers that sole reliance on simple keywords and Boolean strings sometimes results in a large quantity of relevant evidence going missing. But during the half-decade of research that now has gone into the track, something else of perhaps even greater importance has emerged from the results, namely: we have a much better understanding now of what a good search process looks like, which includes a human in the loop (known in the Legal Track as a topic authority) evaluating on an ongoing, iterative basis what automated search software kicks out by way of initial results. The biggest achievement however may simply be the continued existence of the TREC Legal Track itself, still going in its 6th year in 2011, and still producing important research results, on an open, non-proprietary platform, that are fully reproducible and that benefit both the legal profession as well as the information retrieval academic world. While I stepped away after 4 years from further active involvement in the Legal Track as a coordinator, I continue to be highly impressed with the work of the current track coordinators, led by Professor Doug Oard at the University of Maryland, who was remained at the helm since the very beginning.

To what extent has TREC’s research proven the reliability of computer-assisted review in litigation? Is there a danger that the profession assumes the reliability of computer-assisted review is a settled matter?

The TREC Legal Track results I am most familiar with through calendar year 2010 have shown computer-assisted review methods finding in some cases on the order of 85% of relevant documents (a .85 recall rate) per topic while only producing 10% false positives (a .90 precision rate). Not all search methods have had these results, and there has been in fact a wide variance in success achieved, but these returns are very promising when compared with historically lower rates of recall and precision across many information retrieval studies. So the success demonstrated to date is highly encouraging. Coupled with these results has been additional research reported by Maura Grossman & Gordon Cormack, in their much-cited paper Technology-Assisted Review in EDiscovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, which makes the case for the greater accuracy and efficiency of computer-assisted review methods.

Other research conducted outside of TREC, most notably by Herbert Roitblat, Patrick Oot and Anne Kershaw, also point in a similar direction (as reported in their article Mandating Reasonableness in a Reasonable Inquiry). All of these research efforts buttress the defensibility of technology-assisted review methods in actual litigation, in the event of future challenges. Having said this, I do agree that we are still in the early days of using many of the newer predictive types of automated search methods, and I would be concerned about courts simply taking on faith the results of past research as being applicable in all legal settings. There is no question however that the use of predictive analytics, clustering algorithms, and seed sets as part of technology-assisted review methods is saving law firms money and time in performing early case assessment and for multiple other purposes, as reported in a range of eDiscovery conferences and venues — and I of course support all of these good efforts.

You have discussed the need for industry standards in eDiscovery. What benefit would standards provide?

Ever since I served as Co-Editor in Chief on The Sedona Conference Commentary on Achieving Quality in eDiscovery (2009), I have been thinking that the process for conducting good eDiscovery. That paper focused on project management, sampling, and imposing various forms of quality controls on collection, review, and production. The question is, is a good eDiscovery process capable of being fit into a maturity model of sorts, and might be useful to consider whether vendors and law firms would benefit from having their in-house eDiscovery processes audited and certified as meeting some common baseline of quality? To this end, the DESI IV workshop ("Discovery of ESI") held in Pittsburgh last June, as part of the Thirteenth International AI and Law Conference (ICAIL 2011), had as its theme exploring what types of model standards could be imposed on the eDiscovery discipline, so that we all would be able to work from some common set of benchmarks, Some 75 people attended and 20-odd papers were presented. I believe the consensus in the room was that we should be pursuing further discussions as to what an ISO 9001-type quality standard would look like as applied to the specific eDiscovery sector, much as other industry verticals have their own ISO standards for quality. Since June, I have been in touch with some eDiscovery vendors have actually undergone an audit process to achieve ISO 9001 certification. This is an area where no consensus has yet emerged as to the path forward — but I will be pursuing further discussions with DESI workshop attendees in the coming months and promise to report back in this space as to what comes of these efforts.

What sort of standards would benefit the industry? Do we need standards for pieces of the eDiscovery process, like a defensible search standard, or are you talking about a broad quality assurance process?

DESI IV started by concentrating on what would constitute a defensible search standard; however, it became clear at the workshop and over the course of the past few months that we need to think bigger, in looking across the eDiscovery life cycle as to what constitutes best practices through automation and other means. We need to remember however that eDiscovery is a very young discipline, as we're only five years out from the 2006 Rules Amendments. I don't have all the answers, by any means, on what would constitute an acceptable set of standards, but I like to ask questions and believe in a process of continuous, lifelong learning. As I said, I promise I'll let you know about what success has been achieved in this space.

Thanks, Jason, 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 Best Practices: When is it OK to Produce without Linear Review?
 

At eDiscoveryDaily, the title of our daily post usually reflects some eDiscovery news and/or analysis that we are providing our readers.  However, based on a comment I received from a colleague last week, I thought I would ask a thought provoking question for this post.

There was an interesting post in the EDD Update blog a few days ago entitled Ediscovery Production Without Review, written by Albert Barsocchini, Esq.  The post noted that due to “[a]dvanced analytics, judicial acceptance of computer aided coding, claw back/quick-peek agreements, and aggressive use of Rule 16 hearings”, many attorneys are choosing to produce responsive ESI without spending time and money on a final linear review.

A colleague of mine sent me an email with a link to the post and stated, “I would not hire a firm if I knew they were producing without a doc by doc review.”

Really?  What if:

  • You collected the equivalent of 10 million pages* and still had 1.2 million potentially responsive pages after early data assessment/first pass review? (reducing 88% of the population, which is a very high culling percentage in most cases)
  • And your review team could review 60 pages per hour, requiring 20,000 hours to complete the responsiveness review?
  • And their average rate was a very reasonable $75 per hour to review, resulting in a total cost of $1.5 million to perform a doc by doc review?
  • And you had a clawback agreement in place so that you could claw back any inadvertently produced privileged files?

“Would you insist on a doc by doc review then?”, I asked.

Let’s face it, $1.5 million is a lot of money.  That may seem like an inordinate amount of money to spend on linear review and the data volume for some large cases may be so voluminous that an effective argument might be made to rely on technology to identify the files to produce.

On the other hand, if you’re a company like Google and you inadvertently produced a document in a case potentially worth billions of dollars, $1.5 million doesn’t seem near as big an amount to spend given the risk associated with potential mistakes.  Also, as the Google case and this case illustrate, there are no guarantees with regards to the ability to claw back inadvertently produced files.  The cost of linear review will, especially in larger cases, need to be weighed against the potential risk of not conducting that review for the organization to determine what’s the best approach for them.

So, what do you think?  Do you produce in cases where not all of the responsive documents are reviewed before production? Are there criteria that you use to determine when to conduct or forego linear review?  Please share any comments you might have or if you’d like to know more about a particular topic.

*I used pages in the example to provide a frame of reference to which most attorneys can relate.  While 10 million pages may seem like a large collection, at an average of 50,000 pages per GB, that is only 200 total GB.  Many laptops and desktops these days have a drive that big, if not larger.  Depending on your review approach, most, if not all, original native files would probably never be converted to a standard paginated document format (i.e., TIFF or PDF).  So, it is unlikely that the total page count of the collection would ever be truly known.

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.