Studeo Legal

Identify, Adapt and Communicate - The Cycle of Applying Life Lessons to eDiscovery and Vice Versa.

Now that I live in Sacramento, it is difficult to satisfy my need to see my NY Yankees play baseball.  So whenever they are in the area, I attempt to see them play.  On Monday, May 30th, they played the Oakland Athletics and I was sitting in the mezzanine level between home plate and third base, with a perfect view of the field in a hot foul ball section.  The Yankees were leading 5-0 in the bottom of the 7th when……

Given the unpredictable scope of eDiscovery, corporate counsel requires the adaptability of eDiscovery teams to be successful in litigation.  Adaptation is one of the key components of responding quickly to the changing conditions during the course of a litigation matter.  An effective eDiscovery team is paramount to controlling costs and realizing production deadlines.  Established lines of communication enable the team to quickly adapt as variables in the case change once the discovery process begins.  While this seems to be elementary advice, unless it is an implemented, vocalized strategy, it may not be effectively implemented.

Effective eDiscovery teams are composed of a variety of people who represent diverse interests in the organization, and who bring specific expertise and experience to the project.  Perhaps even more importantly, the ability of team members to adapt, identify and communicate changing conditions that may impact someone else on the team, at a later time, is important.  You want people who can think outside the box and understand the role they play in the process.

A corporate eDiscovery team will vary in size depending on the issues in litigation and the size of the company.  Ideally, you want to select people who have experience with previous eDiscovery cases so that they can provide perspective on potential hurdles, and possible ways to negotiate around them.  At a minimum, representatives from the following cores member groups should be included:

• Corporate stakeholder
• Lead Attorney
• IT Representative
• Litigation Support
• Team Lead
• Technologist

The Teams Primary Roles are summarized below:

1. Creating a written project plan with delivery dates
2. Determining and assigning discrete tasks
3. Tracking progress of implemented plan
4. Monitoring costs as the project moves forward
5. Creating documentation to memorialize all decisions made by the group
6. Facilitating communication among the team members.

Qualifications of Team Members

Now that a team has been assembled, communication among members is key as the project moves forward as the variables in the case change.  While having a written game plan is key to the success of the team, the ability to adapt that plan and communicate those changes is equally important.  Typically, after eDiscovery process begins, the team will encounter may unanticipated issues.  The team should anticipate and adapt to modifications to the discovery process, including:

• Changes in time line
• Change in scope of collection including additional custodians
• Expansion of the types and volume of information to be collected
• Technology changes

In addition, there are two other major changes that should be recognized; changes in technology and legal issues.  Let’s face it, technology changes constantly.  When there are technology problems or changes/updates, the IT team needs to communicate that information to the legal team so that a determination can be made about its impact on the litigation, particularly impacts on the production schedule.  When the legal issues change, such as modifications to the scope of discovery or changes imposed by the court, the team needs to meet and discuss how this would impact the IT processes.  Expanding search strategy or changing time lines might force IT to re- examine document sets previously ignored and dramatically increase the time it takes to complete the production plan.

Through the communication facilitated by the team approach, the eDiscovery team creates contingency plans for potential changes in discovery to maintain the original plan and plan for the unexpected.

….Back to the game

David DeJesus from Oakland came to the plate.  As a left handed batter, I knew I had to keep my eyes on the hitter since I was in the danger zone for foul tips for a lefty (Identify).  On the second pitch, he fouled the ball on a line drive trajectory directly at my seat.  The guy in front of me stood up put his hands over his head and was ready to catch the ball.  However, I could instantly tell that his hands were too far apart and the ball would likely not be caught. (Adapt).  I yelled, “I got it” (Communicate) and threw my right hand in front of my face and caught my first foul ball after attending games for the last 40 years.   After I caught the ball and the row in front of me had finished ribbing their friend about his lack of baseball acumen, I realized that my catch was partly luck and partly unconscious planning for the unexpected.  My involvement in eDiscovery and the legal process over the years has resulted in an unconscious strategic planning in all phases of my life. 

My only regret… I didn’t catch a ball hit by the Yankees!

Federal Rule Changes – The Impact of Language on the Practice of Law

We are all aware that law is based on words and the interpretation of those words.  The law is an ever evolving, organic set of rules and regulations that are often changed and revised.  Monitoring these changes and how they impact the practice of law is a full time job that most attorneys don’t have time to perform, yet they can dramatically impact how you practice.

On January 3, 2020, Congress passed the Judicial Administration and Technical Amendments Act of 2008, to make improvements in the operation administration of the Federal courts, and for other purposes.  Specifically, one of the changes made was a modification to the wording of Section 1920(4), changing the phrase "fees for exemplifications and copies of papers" to read "fees for exemplification and the costs of making copies of any materials."  Upon a first read, it seems like the difference between the two phrases is inconsequential ant the extra words merely clarify the prior version.  However, based on a recent judicial interpretation, there are plaintiffs attorneys across the nation who should be taking notice.

Why?

In his recent opinion in Race Tires America Inc. v. Hoosier Racing Tire Corp., Judge McVerry of the U.S. District Court for the Western District of Pennsylvania ruled that the winning defendants in the antitrust case are entitled to reimbursement of more than $367,000 in eDiscovery costs.  He found that courts are increasingly approving awards of eDiscovery costs in litigation, quoting another judge as saying that they are. “the 21st century equivalent of making copies.” 

The plaintiff’s attorney, Joseph Decker of Babst Calland Clements & Zomnir argued that the costs should be disallowed because electronic document collection, drive image and searching (eDiscovery charges) are not specifically enumerated under Section 1920(4) and therefore are not recoverable costs.  Judge McVerry disagreed, stating that the Congressional Act of 2008 modified the working with a specific intent and that since the modification, no court had “categorically excluded eDiscovery costs from allowable costs.  In fact, Judge McVerry opined that many courts had recently come to recognize that the exemplification in the modern era, included electronic copying and even the creation of electronic databases.

The plaintiffs’ suit was dismissed on summary judgment and this ruling was upheld by the 3rd Circuit on appeal. (See the case for full details).  When the defendants attorneys, John R. Gotaskie Jr., Theodore H. Jobes, and Christine Soares of Fox Rothschild filed to recover their costs, including eDiscovery, plaintiffs requested that Judge McVerry disallow any eDiscovery charges since the law on recovery was not clear.

The Ruling
McVerry started his analysis by noting that the 3rd Circuit had not yet addressed the issue of whether eDiscovery costs were recoverable; stating that the current statutes were originated when paper was the only discoverable form of information.  For him, the issue became an application of these rules in a world of electronically stored information (ESI).  There were two key factors that influenced the courts final decision to have the plaintiff reimburse $367,000 in eDiscovery costs.

1. The plaintiffs had been very aggressive in their pursuit of eDiscovery, filing 273 discovery requests which included 119 separate requests for documents.  In order to respond to those requests, the defendants had hired eDiscovery contractors to copy 490 gigabytes of electronic data from its servers and then applied the plaintiffs search term list of 442 searches to produce document.  They then created a database to handle the 7 million documents resulting from the searches and convert documents to the required production format.
2. The defendants were not seeking reimbursement for any legal fees for work performed by attorneys or paralegals who reviewed document to determine relevance, privilege and confidentiality designations.  They were only seeking reimbursement for the highly technical skills involved in eDiscovery that attorneys generally are not trained to perform and that these skills and services were indispensible to the discovery process.

The Lesson?

 eDiscovery rules and procedures are evolving at a dramatic pace.  Attorneys need to understand that eDiscovery has become a vital part of practicing law and can impact the bottom line, and can affect both the outcome of a case, and the financial costs of litigation.  Having people at your firm that keep abreast of changes to old rules and the implementation of new rules is paramount to your success as a litigator  

Facebook and Law Enforcement – The Next New Frontier?

 “Do you have a Facebook page”?

This question would not have been in a lawyer’s vocabulary 2 or 3 years ago and would likely not have been asked of a client.  Facebook (FB) was just a way for kids to stay in touch and friends to reconnect for class reunions.  It seemed like a relatively harmless and fun way to stay in touch with your “friends”.

If the answer to the ownership of a Facebook page is yes, you can bet that your client is trying to remember what, if anything, could be on there that would impact the case. While there are ways for your client to download their information from Facebook, how do law enforcement and other agencies get that information?  It has become so commonplace that Facebook has issued a set of Guidelines to law enforcement agencies to formally request information and assure that it is handled in a systematic, repeatable manner.  Knowing that these Guidelines exist can help you assist your client. 

Once a valid request is received by Facebook, it is classified into one of 3 categories: Preservation, Formal, and Emergency. There are distinctions that are important to understand:

Preservation – A preservation request is the lowest request level.  A preservation request alerts Facebook to maintain any items in the account for 90 days from the request, until a more formal legal request can be processed if needed.  The account is not “frozen”, but any items that might be deleted in the normal course of business will be preserved.  Additionally, any items that your client adds or deletes from the account is maintained in a preservation account by FB.

Formal Legal Requests – formal requests are just that; judicial/administrative requests which have the compulsory effect of law.  If this follows a preservation request, then the requesting party will receive all information required by law from at least 90 days prior to receipt of the first request. 

Emergency Request – Facebook has created a special Emergency Form for situations in which the requesting party believes that “serious bodily harm or death of a person may occur if we do not respond quickly”. 

Facebook does not shut down or suspend an account based solely upon a law enforcement request.  If the account does not contain false profile information or engage in illegal activity, FB will generally not shut down the account.  However, if law enforcement requests that FB not disable the account, they will maintain it for a period of time specified by law enforcement.  Information or complaints from other parties may lead FB to disable the account in spite of law enforcement requests.

What information can they obtain?

The data received from FB fits into three categories: basic subscriber/account information; subscriber content; and IP logs.

Basic Subscriber Information includes:
• User ID number
• Email address
• Date and Time of your account’s creation
• The most recent logins, usually the last 2-3 days
• Your phone number, if you registered it
• Profile contact info
• Mini-feed
• Status update history

Subscriber Content is where the real meat resides.  Even if your client has been “good” and not posted those pictures of the post rugby game party, one of their “friends identified in this section may have.  It includes:
• Shares
• Notes
• Wall posts
• Friends list
• Groups list
• Future and past events
• Videos
• Photos
• Private messages

IP Logs – IP Logs include information on computers and locations that the client accessed the account from.  IP log information may not be that helpful or plentiful since literally billions of actions are taking place on FB each day, and logs tracing that activity are routinely recycled.  So the timing of the request during the log cycle process is the major factor in whether anything useful may be found.  The IP log might help determine whether other parties have illegally accessed a client’s account. 

How can this information be used?
Last month, digital rights advocacy group the Electronic Frontier Foundation (EFF) obtained internal documents from the Justice Department and the IRS showing the ways in which social networking is used during investigations. For example, an internal Justice Department presentation explained to employees that using social networking in criminal cases can reveal a suspect's communications or whereabouts, establish motives and personal relationships and prove or disprove alibis.

"We will continue to use publicly available information individuals post online about their illegal activities or false statements to law enforcement officials in our investigations," a spokeswoman for the Department of Justice said. In addition to accessing public information through social media, the Justice Department document explains how going undercover online allows agents to communicate with suspects and targets, gain access to private information and map social relationships and networks.

As long as the information is public on sites like Facebook, LinkedIn and MySpace, it's fair game for law enforcement.  Legal measures can and will be made to retrieve private data from site owners such as FB.

 

Mach 5, Formula One and EDiscovery. Managing Expections, Limitataions and Operations

Do you remember “Speed Racer”? (If so, you are old enough to remember Discovery when it was 100% paper based) He was unbeatable.  Each two episode of adventure left us with a cliff hanger in which Speed would defeat evil, win the race and save the day (he already had the girl, Trixy). 

What was most important tool of Speed’s persistence, excellence and victory?  The Mach 5. 

What a car! And what was the coolest part of the Mach 5?  All of the things it could do: cut down trees, jump over cars and travel underwater, it was a technological marvel. 

What was the brain of this car?  The steering wheel of course.

   

Look at it.  So simple, so elegant. Press “A” and he could activate auto jacks that could not only facilitate repairs but it would propel the car over the top of other cars and obstacles in the road.  A fan favorite was the “C” button which would allow the Mach 5 to travel at amazingly high speeds through a forest, all without hitting a single tree. Of course pressing “G” would deploy the homing robot which could deliver messages anywhere.  This steering wheel really was ahead of its time!

Why this trip down memory lane? 

Let’s take a look at the real world.  Below is a steering wheel from a modern Formula One car.
 

 

These steering wheels are amazing.  They are so colorful (it looks like a version of Walt Disney’s Fantasia) and include controls for every imaginable function on the car, all from this single “control panel”.  And understand that these controls have to be functional, effective and easy to operate by a human at speeds in excess of 200 mph!
 
Many legal professionals think eDiscovery is like the Mach 5 steering wheel.  Press a button and Presto! Chango! Viola! “It happens”.  (Defining what “It’ should be and the format to produce it is a constantly moving target) 

The reality is that eDiscovery is much more like the modern Formula One steering wheel.  It is complex, interrelated and difficult to operate according to the Discovery Rules which must be followed.  You had better understand how pressing 1 button impacts the rest of the process, and how pressing several buttons simultaneously can skew your results.  To properly process evidence you must use care, precision and have the experience to operate the options perperly.  All of this while driving (under deadlines) down the road usually much faster than 200 mph. 

The fact that the Formula One wheel does not have the ability to cut down trees or soar over other cars shows the practical reality of...well, reality.  However, for the Mach 5 enthusiast, these buttons on the steering wheel represent expectations. Does the contemporary attorney wish for a “cutter” to chop down the forest of data while all the time moving forward towards the key evidence? You bet! Can it be done?  Yes……but see the Formula One wheel above.

The technology can only function properly when it is in the correct, properly trained human hands.  Technology without human interaction and understanding will produce nothing of value and might even be wrong, but it will be fast!

My favorite button?  The “D” which stands for DEFLECTOR may be the feature you wish for most often during a stressful EDiscovery project.  Inside the car, before the race starts, the driver is invulnerable. Once the starter flag drops, you are interacting with an entire field of race cars and drivers, all with different experience and expertise, making decisions that impact others at a very high rate of speed.  Help relive this stress by putting together the right team for your litigation... People, Process and Technology!

 

Visual Presentations and their Effect on Juries… but don’t Forget the Court.

Ted Brooks, from Litigation Tech, brought this interesting article to the attention of Trial Consultants through a Linked-In reference story.  “Courtrooms Now Aglow with High-Tech Methods for Telling Better Visual Tale” is a story that appeared in the Mercury News in California. This story offers an important trend analysis for any attorneys who practice before juries about their expectations regarding presentation of evidence.  Given that both jury members and judiciary live in the same world of visual presentation, it is important to extend the story to include a discussion about interactive visual presentations (Hyperlinked Ebriefs) to the court as the final, most effective way to influence the court about your client’s case.  Remember, judges are people too!

The Mercury News story discussed the growing trend of attorneys using technology in increasing amounts in order to win over the juries that are sitting in judgment of their clients.  Attorneys are using the same technology that we are all accustomed to seeing on television – video and audio clips, large-format photos and synchronized deposition testimony – which are all designed to add a three dimensional, interactive presentation to the “audience” in order to keep them engaged.
In fact, the Santa Clara County district attorneys office has asked a technology consultant to prepare a presentation for his staff on the topic because “it is important to show and tell, not just tell”.  Jury visuals help describe complex issues, keep parties attention and effectively provide context for often more boring documentary evidence.  Some people feel that this is a move towards lowering the bar in order to “entertain” the jury, I believe it is the realization that we are a visual society and in fact, that we comprehend and retain visual evidence more easily than the written word.

"Juries seem to love visuals, even if it's just jury instructions,'' said Judge Jerome E. Brock, who hears criminal cases in Santa Clara County Superior Court. "I see it more and more.''

Given the growing acceptance of the influence that visual evidence has on juries, it is not a large leap to consider the impact a digital presentation can also have on judges and their clerks either for motion practice or post-trial submissions.  When you have already spent money and time creating a visual presentation to the jury, it only makes sense to provide that information for further review by the judge, often the final arbiter of the evidence. 

To that end, hyperlinked electronic briefs (Ebriefs) provide the missing link in your visual evidence presentation format.  They provide instant access to all facets of your case presentation including: video and audio clips, demonstratives, exhibits, synchronized deposition and case law.  The advantages that an EBrief offers your client should not be overlooked as part of your litigation strategy.  I have provided extensive information on other blog posts about this issue.  Remember, judges learn the same way we all do, visually!