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The Increasing Volume of Video and Audio Files During EDiscovery – How Can You Use the Information Effectively?

There is an ever increasing volume of information in “non-traditional” formats that is appearing in today’s litigation matters.  Specifically, there is often important and relevant information that exists in video or audio formats on YouTube, voicemails, video depositions, wiretaps and news media interviews.  The question is, how can this information be searched and analyzed in an efficient manner so the results can be used in your case? 

Traditional EDiscovery systems focus on the written word in an electronic format.  In the transition from the paper world to the electronic world, the format of the documents changed, but the primary information still existed in this “digital” format.  E-Discovery software is very effective at searching databases of electronic documents and parsing out important information based on the content.  With the explosion of video and audio files, we were originally forced to handle these files in one of two ways: 

 1)  Create written translation transcripts of the audio content in order to place the material in a traditional EDiscovery search product so it could be easily searched for relevant information. OR
 2)   Have staff listen/video to hours of video/audio files, listening for potential key information.
Handling files using either of these two options is an  extremely expensive and time consuming process. 

Thankfully, there are some new tools available to handle video/audio files effectively.  While the solution was obvious, create a product that could make the spoken words inside the video or audio available without human labor, the actual steps to solve the problem were quite complex.

Utilizing text extraction software to extract the audio track from the video file, it can then be fed through a powerful speech-to-text engine.  This digital text can then be “indexed” by a powerful search engine and matched to the timecode of the video/audio file.  This allows the search engine to find the text you are looking for and then place you in the file at the exact location.  (This is similar to a text search engine finding the word in a document and highlighting the location so that you can then read the search terms in context).

The end result is the ability to type in a search term, and if it appears in an email, or a Word document, or a spreadsheet, or a video or audio file, it is at your fingertips. If a video or audio file, just click on the hit and the video is automatically queued up 5 seconds before your term appears, and you can quickly decide if it is important to you, or not.

No system that involves different levels of quality audio files can provide perfect results.  The final result does depend on the quality of the audio file that you have available for analysis.  But the filtering capability of software improves every day.  Using this technology to identify potentially important information allows you to then focus on the entire content of the file that has been identified as relevant by the search terms.  You can filter thought hundreds of hours of audio files in a cost effective manner and then focus on the relevant files, just like you do when searching through digital documents.

Studeo Legal can assist you in using the information in video/audio files in a cost effective manner, integrating the results into a traditional search engine.  Make sure you take advantage of the information sources available to your discovery process.  Using the right technological solution will improve your ability to develop evidence to support your position.

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Lawyers Need to Properly “Oversee” the Discovery Process

The United States District  Court for the District of New Jersey recently issued a ruling (N.V.E. Inc., v. Jesus Pameroni, 2011 U.S. Dist. Lexis 107600) that further points to the need for increased involvement by attorneys in the discovery process.  The lawyers were accused of mishandling the litigation hold process which resulted in monetary sanctions and a future adverse inference jury instruction against the plaintiff, NVE.  In summary, the court found that NVE committed two major errors: 1) NVE did not implement a litigation hold on a timely basis when litigation was reasonably foreseeable and 2) Both inside and outside counsel to NVE failed to oversee the discovery process.

In a harsh and straightforward statement about the action of both NVE and the outside counsel the court said they “acted with gross negligence in both failure to preserve evidence and collection and review”.  In following the recent Pension Committee ruling, the focus of the criticism was on the failure to issue a written litigation hold notice.

The collection and review criticism focused on the courts surprise that a non-attorney (NVE’s CFO, Mr. Jenson) was put in charge of collecting documents and that no legal assistance, from either inside or outside counsel was provided.  Specifically the court stated that it, “Cannot fathom how NVE can be confident that it has produced all relevant information and that no relevant information has been destroyed when there has not been a single attorney reviewing the documents to confirm this fact is true.”  The court pointed to both NVE and its outside counsel in determining that there was no plan, written or otherwise, that could by provided as proof that any form of communication existed regarding e-discovery duties; including the preservation, collection and subsequent review of documents. 

With the issue of “defensibility” continuing to increase in importance in the judicial system, corporate legal teams and their outside are beginning to pay closer attention to the need for improved collaboration and communication in performing EDiscovery.  The Courts are requiring that counsel be able to show all the steps that they have taken during the discovery process in order to prove that the proper procedures have been followed.  Specific, recordable and traceable procedures are part and parcel of an attorney’s duty in representing their clients.

In addition to the very specific e-discovery mistakes made, this case highlights the need for legal counsel to make sure that all EDiscovery steps are part of the litigation process that they practice on a daily basis.  In particular, outside counsel must be an integral part of any client’s internal EDiscovery procedures with the responsibility and ability to oversee discovery from preservation through review.  Outside counsel must insist that they be made part of the process so that they can offer the correct legal advice on behalf of their client.  Stepping back and relying on the client to provide the information is usually not enough involvement.

The takeaway:  Greater collaboration between corporate legal departments, law firms and third-party service providers is required to properly fulfill the current requirements of the court.  They are continuing to sanction those that do not provide “reasonable” oversight of the discovery process.  Working with experienced third party vendors can help fill the gaps that often exist in the knowledge of counsel wo don't focus on discovery issues on a daily basis.

Predictive Coding Techniques – Why hasn’t the Technology been Embraced Yet?

Everywhere you turn; there are discussions being had and articles being written about technology assisted document review or “Predictive Coding”.  It is generally accepted at this point in time that when properly applied during the eDiscovery process, predictive coding tools result in a streamlining of the discovery process.  This technology appears to be able to reduce the costs of litigation while not sacrificing (and perhaps improving) the accuracy of the review. 

So why aren’t all firms rushing to employ these new technologies?  I believe the reason is quite simple; no one wants to be the first one to be challenged over the legal precedent, even though all the major judicial indications are positive.    There are a number of leading EDiscovery jurists who have indicated strong support for technology that will improve the document review process.

One of the premier jurists in the EDiscovery field, U.S. District Court Magistrate Judge Andrew Peck 's recently published an article, "Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?"   It is the most recent and perhaps most complete endorsement for predictive coding.  "Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval," wrote Peck.   It is clearly his attempt to jump start the market into embracing technology to help reduce litigation costs and related litigation disputes.

Additionally, Magistrate Judge John Facciola of the U.S. District Court for the District of Columbia encouraged its consideration in Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 F.R.D. 139, 148 (D.D.C. 2007) In his opinion he wrote, "I bring to the parties' attention recent scholarship that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results."

In one of the seminal cases in recent history with a continuing impact on discovery matters, Magistrate Judge Paul Grimm of the District of Columbia, in Victor Stanley Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) spent quite a bit of his opinion dealing with the improvements that technology brings to the topic of search regarding document populations.

While these judges are sending clear signals of their willingness to embrace improved technologies to control litigation document review, the focus of their writings continue to include the concept of ‘defensibility’, which focuses on how the technology is implemented.  Like all other issues we propose to the court, we have to be able to demonstrate that the results are responsible, reliable and repeatable. 

In the words of every third grade teacher, we have to “show our work”, proving that we followed logical, reasonable steps to get to the end results.  The jurists are not expecting perfection in document production; they recognize that mistakes will be made.  What they do insist on are best faith efforts, suing a series of well thought out procedures, implemented in a cooperative manner between the two parties to create a reasonable outcome.

The Sedona Conference which is one of the premier sources of information regarding the implementation of technology in litigation provides a clear direction regarding defensibility.  Parties must be prepared "to demonstrate to opposing parties, courts, and government agencies, that its chosen method and tool accurately captured a reasonably sufficient number of the relevant, non-privileged [electronically stored information] in existence, and that the remaining unreviewed and unproduced ESI is irrelevant."

Judge Peck adds the following list of priorities that he would require if a challenge to the process were to reach his court.
 1)  What was done?
 2) Did the process produce defensible results?
 3) Did the process produce responsive documents with a reasonably high rate  of recall and precision?

What Judge Peck is referring to in point 3 is the requirement that there be some statistical sampling done on the results sets to prove that the correct search terms were employed during the design phase.  Statistical sampling provides a high level of certainly that the results presented represent an accurate result.

While vendors have been quick to supply advanced analytic tools for use in litigation, improving results and reducing the costs to review document populations, the courts have not yet ruled on the use of these techniques.  "To my knowledge, no reported case (federal or state) has ruled on the use of computer-assisted coding," Peck says.

The leading jurists in the e-discovery community support technology-assisted document review and its acceptance is continuing to grow. The key to its defensibility is upfront preparation to ensure that the applied tools and techniques are subject to thoughtful quality control during the review process.  However, the lack of judicial precedent makes lawyers nervous.  No one wants to be the first case regarding the acceptance of predictive coding as an EDiscovery strategy. 

However, Peck offers the following as an enticement: "Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to relay on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help 'secure the just, speedy, and inexpensive' (Fed. R. Ci.P. 2) determination of cases in our e-discovery world."

So what are we waiting for??

Use Technology to Set Your Law Firm Apart from the Pack

In today’s increasingly competitive market, law firms are constantly looking for ways to set themselves apart from the competition in order to attract and retain clients.  Clearly the quality and experience of the legal staff is of paramount importance to potential clients, but what else can a firm do to convince clients that they should be selected?  How else can you create value for your clients?

Make technology part of your core business
As everyone knows, the cost of litigation is rising and clients are concerned about the cost of all legal related services.  EDiscovery has dramatically increased the potential size of document populations which must be reviewed in each matter.  If firms continue to operate under the “old” models of document review and productions, without employing the latest technology advances, they are not creating value for their clients.  More and more, clients want to know how firms handle litigation, from document production through review and analysis; concluding with litigation strategies in the courtroom.

The prevalent practice among many law firms and in-house legal departments faced with litigation involving electronic discovery is to load large volumes of data directly into their chosen linear, manual document review platform without employing any technology to reduce the size of the data set.  Oftentimes basic steps of deNisting, deduplicating, or near deduplicating are not employed, resulting in the maximum amount of data that needs to be reviewed by staff.  This volume of data increases the most expensive phase of the EDiscovery process, driving litigation costs skyward. 

Smart Search
The size of the manual review by attorneys can be lessened even further if advanced search techniques which utilize analytical technologies and predictive coding algorithms are employed before a review team begins to examine documents.  Implementation and understanding “Smart Search” technologies will help the documents tell you a story and results in a more effective document review.  Modern search engines collect data about documents that can be used to shed light on what they contain and perhaps even more importantly, how they relate to one another.  The use of correlation tools help focus on the relationships between potential custodians, allowing you to determine which custodieans spend the most time spreading with one another via emails.

Understanding and utilizing these technologies offer the best option in driving down the costs of litigation.  Unfortunately, these value creating technologies are not being given enough attention due to the risk adverse nature of attorneys, and their uncertainty or lack of knowledge regarding the technologies. Rather, law firms and companies are mistakenly focusing their attention solely on the costs charged by software and litigation support vendors for services rather than creating a brand new technological approach to litigation support.  While the selection of one vendor over another clearly impacts the bottom line costs, the real cost savings comes from revamping your entire approach to litigation support, with a focus on implementing the most effective technologies to help you reduce the volume of documents that has to be examined by human reviewers.

Use of technology
U.S. Magistrate Judge Andrew Peck recently spoke at the Carmel Valley EDiscovery Retreat and addressed the use of technology in civil litigation matters.  He recognized that manual review is not a model of accuracy or efficiency and that the use of advanced search analytics and predictive coding, when properly implemented, would result in a more efficient and defensible, document handling process.  Computers by their nature are designed to perform complex algorithms consistently across document populations, locating all the relevant documents, without getting tired.  Using computers to isolate certain documents for final review by attorneys’ results in a more cost effective review and production. 

However, let me be perfectly clear that all the technology in the world does not replace the input and review that is required by trained legal minds.  To get the most of the new technologies, trained lawyers must interact with the software and the documents, constantly refining searches and performing iterative searches based on the results that pop up after each search.  Search technologies are far more complex than those most attorneys learned using Lexis or Westlaw.  Mathematics, analytics and visual cues are important Search tools as lawyers begin to “interrogate” the documents and let them speak to us.  Additionally, the creation of a highly trained document review team, with experience in both the technology and the subject matter will further benefit the litigation by extending the utility of the technology. 

How to add value
The best way to differentiate your firm from the competition is to embrace the new technologies that will allow you to handle your client’s cases efficiently and effectively.  By integrating these technologies into your practice of law, you can show your clients how you are creating value on their behalf.  Effective EDiscovery procedures can and will improve your ability to obtain new clients and retain new clients in today’s competitive requirements.  Highlighting your integration of technology with your legal talents is a powerful marketing tool.  Clients want positive results from your firm, but they want services to be provided in a cost-effective manner.  

New Model Order Would Control EDiscovery During Patent Cases

A new model order that would place some limits on eDiscovery in patent cases was just unveiled by Chief Judge Randall Rader of the U.S. Court of Appeals for the Federal Circuit.  Announced during the 2011 Eastern District of Texas Bench Bar Conference, the reasons cited behind the changes focused on the excessive costs of the discovery process, particularly in patent cases, which produce “disproportionately high discovery expenses”.  Judge Rader posited that the Model Order serve as a starting point for district courts to create “responsible, targeted use of e-discovery” in patent cases, with the purpose of streamlining and imposing discipline on the process.

The Order makes the observation that the most consequential discovery in patent litigation focuses on what the patent states, how the accused product works, what the prior art discloses, and the proper calculation of damages.  Thus, far reaching Ediscovery, such as mass email searches, is mostly tangential to the making a determination regarding the patent.

The Model Order would force litigants to narrow their focus on gathering only “material” information which according to Judge Rader, is the “proper purpose of e-discovery”. The Model Order would halt the use of Ediscovery as an unlimited fishing expedition, particularly with respect to the gathering of email documents.  Reducing the expenses of Ediscovery would remove some of the pressure that accused infringers felt to settle non-meritorious claims simply to avoid the high costs of Ediscovery.

During his speech at the conference Judge Rader made several important statements and observations:

- “the greatest weakness of the U.S. court system is its expense.  And the driving factor for the expense is discovery excesses.”
- "These vast expenses can force accused infringers to acquiesce to non-meritorious claims. This only serves as an unhealthy tax on innovation and open competition."

The complete order should be read (HERE) to understand the full impact the Model Order will have on patent litigation and the limits it places on the production of electronically stored information.  Several of the provisions are highlighted here:

• Metadata is excluded from e-discovery production requests without "a showing of good cause." (date and time as well as the distribution list(s) shall generally be included in a production).
• A requirement that email be specifically requested (email requests will not be considered part of a general ESI production request).
• Limits on when email productions can be requested  - only after the parties have engaged in "core" discovery concerning the patents at issue, prior art, the accused products, and relevant financials.
• A requirement that emails may only be requested regarding a specific issue vs. a general discovery of a product or business.
• The Model Order also requires that the search terms be narrowly constructed pertaining to specific, limited issues.
• Courts may consider up to five additional custodians per producing party and five additional search terms per custodian. Litigants who submit e-discovery requests to adversaries that exceed court orders and the parties' agreement must pay for the extra production.
• Provisions for cost shifting to the requesting party for disproportionate production requests for electronically stored information (ESI), including if the request exceeds the ‘accepted’number of requested custodians and number or scope of search terms.
• The production of electronic information in a mass production, or the inadvertent release of privileged or work product protected electronic data, is not a waiver or permission to use it. (Clawback protection under FRE 502(d). These provisions are included in the Model Order to help minimize the costs of human preproduction review.

Judge Rader concluded that purpose of the Model Order was to provide some strong guidelines to help control Ediscovery, but understands that they can not possibility be applied literally to every patent litigation.  Some will require more witnesses, and some will rely more heavily on email correspondence based on the facts of that case.  But it is the hope of the entire subcommittee that the Model Order offer guidance to all patent litigants.