Studeo Legal

What Does Reasonableness have to do with Litigation?

 

Prelude
Unfortunately, I am old enough to remember when the major goal of defense firms was to delay the litigation process, bury the other side in millions of pages of unrelated documents and offer as little assistance as possible about the data that was produced.  During any number of the antitrust cases that I worked on in the mid 1980’s, defendants would literally back up the truck and dump documents on us with the claim that they were all “responsive” to our discovery requests.  Working in a state antitrust office, our only response was to band together with other state AG’s in an attempt to provide enough staff to plow through the mountains of data.  While the ‘responsive’ data may have been delivered (so the defendants were technically in compliance), locating useful information was not an easy task.   Gratefully, those methods are no longer acceptable behavior in the discovery process.

At Legal Tech 2012, Judge David Waxse (U.S. District Court Kansas) spent some time explaining what the courts are looking for from both parties in litigation.  In summary, one of his major focuses was on the concept of “reasonableness”.  He posited that the court understands that “perfection” is a laudable concept to shoot for in EDiscovery, but that courts do not expert parties to ever reach it.  The Federal Rules of Civil Procedure (FRCP) is a set of procedural rules that are to govern behavior, but they are not and can not be absolute.  Court’s do not expect clients to get everything right every time, they are asking litigants to be able to show that they have made all “reasonable” efforts to get it right..

An Attempt at Definition
Of course, the problem is now to try and reach agreement on what “reasonable” means in the context of litigation.  What should constitute “reasonable” attempts to comply with the FRCP?

A recent case helps to provide further guidance on this issue.  Bradley B. Larsen vs. Coldwell Banker Real Estate Corp (C.D. Ca Feb. 2, 2012) addressed the issue of insufficient discovery.  The plaintiffs alleged the defendants had failed to comply with the court’ discovery order.  They filed a motion to compel the defendant to go through a second round of electronic discovery, specifically requesting that a neutral third party “re-collect and process defendants ESI”.

The Court relied heavily on The Sedona Conference Principles when it ruled that  “the requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.”

With this basic principle as the foundation, the court applied a proportionally test as described by FRCP 26(b)(2), to asses whether the responding party met its burden.  The relevant section states that
 (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (EMPAHSIS ADDED)

The Courts Decision

The court denied the plaintiff’s motion to compel re-production, finding that the plaintiffs had failed to prove that the defendants were unreasonable in their e-discovery efforts, thus did not follow the court’s original discovery order. The court determined that the defendant’s response to the original order was adequate and that the burden of the second production did not outweigh the likely benefit.  This was based in summary on

The Burden: The original production consisted of over 1,000 hours of processing, at a cost of more than $100,000.  Revisiting the data would likely cost at least as much a second time.

The Benefit:  The defendants produced over 9.000 pages of discovery and the court found that only two examples existed of possible missing discovery.  Therefore, this was considered to be an acceptable error rate when dealing with a production of this size. 

The Takeaway

The judiciary is restricting the issuance of overly broad production requests and motions to compel that are not based on a solid foundation of fact that the party has acted unreasonably.  When determining whether to file a motion to compel for inadequate production with the court, parties need to consider whether they can provide some real evidence that the opposition has acted in an “unreasonable” manner, and this must be based on the inclusion of a proportionality analysis as outlined in the FRCP.  Without the ability to provide the court with real evidence, it is likely that their pleas will go unanswered.  The courts want the parties to work through these issues and in the end, focus on producing what is required in a manner that is cooperative… and reasonable.

 

Third Circuit Addresses Taxable Costs: Vacates Award of the District Court in Race Tires Amer., Inc. V Hoosier Racing Tire

The District Court
 In the original case, the District Court (U.S. District Court for the Western District of Pennsylvania) had granted the summary judgment motions of the defense.  The Clerk then considered the Bill of Costs that was submitted by the defendants and concluded the “electronic Discovery costs would be consider[ed] taxable, as opposed to just…..the cost of litigating”.  The Plaintiff immediately filed a Motion to Appoint an EDiscovery Special Master to review the taxation of costs.  The District Court refused to appoint a Special Master and subsequently affirmed the Clerk’s taxation of the vendor charges during EDiscovery.  The courts decision “essentially found that the steps of the third-party vendors performed appeared to be the electronic equivalent of exemplification and copying.”  The Plaintiff immediately appealed the decision

The Question on Appeal
The question considered by the Third Circuit was whether 28 U.S.C. § 1920(4) “authorizes the taxation of an electronic discovery consultant’s charges for data collection, preservation, searching, culling, conversion, and production as either ‘exemplification [or] the . . . making [of] copies of any materials where the copies are necessarily obtained for use in this case.’”  The argument forced an analysis of what types of expenses may be taxed, based on statutory language.

The Third Circuit

On appeal, Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., --- F.3d ---, 2012 WL 887593 (3d Cir. Mar. 16, 2012) the Third Circuit vacated the District Court’s approval of taxable costs incurred during  electronic discovery and remanded to the lower court with the instruction that they should  re-tax in accordance with the new opinion.  The court concluded that none of the the relevant vendors’ charges “would not qualify as fees for ‘exemplification’” and that “of the numerous services the vendors performed, only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved ‘copying’” and were thus recoverable.

The Court based its decision on a review of the original language of § 1920(4), as well as a study of the related history surrounding the implementation of the section by Congress.  According to the court’s analysis, there was no indication that Congress intended to shift all the expenses of ESI discovery to the losing party.  Additionally, there was no support in Supreme Court interpretation which had always viewed the cost statutes very narrowly.  The Court however, did acknowledge that there might be strong policy reasons or equitable circumstances in particular cases to award the full costs of EDiscovery to the prevailing party, but concluded that the federal courts lack that type of authority under the current statutes.

The court concluded that none of the EDiscovery charges imposed by the plaintiff’s vendor are taxable and reduced the award in favor of defendant Hoosier from $125,580.55 to $30,370.42

The Takeaway
Cost-shifting may be achieved during the course of litigation, either by agreement or pursuant to court order issued under the authority of Fed.R.Civ.P. 26.  After litigation, cost-shifting may be ordered as a sanction for conduct that reflects bad faith on the part of parties.  But until the issue surrounding EDiscovery costs is addressed on a statutory level by Congress, attorneys should not count on any major recovery of EDiscovery costs. 

With the chances of recovering all ESI costs unlikely,  attorneys should continue work closely (and cooperatively) with opposing counsel to produce documents in the most cost-effective manner possible; using the best technology and human review possible to produce the least amount of documents in the most cost effective manner.  Partnering with experienced litigation support companies who can advise clients on the best and most cost effective way to produce documents is one way to help control these costs before the are incurred.

Heed the Judges Warning to Stay Away from Social Media Uses During a Trial

There are a number of reasons that judges, lawyers and jurors need to pay attention to the myriad uses of Social Media during trials.   Many people seem to feel that using Social Media communication is an “inalienable right” and that nothing should stop them from expressing their opinions at will.  However, when the use of these communication methods interferes with the conduct of a trial, judges are beginning to examine the impact and forcing people to pay attention.  The use of Social Media can now be easily monitored and determining negative impacts on a trial is becoming an increasing focus of litigation support firms.

Scenario
Jacob Jock, from Sarasota Florida, was selected for jury duty in December of 2011 for a car accident case. On the first day of the trial, he then attempted to “friend” the Defendant in the case using his FaceBook account (He was allegedly interested in going on a date with the defendant).  The defendant immediately told her attorney about the request, who informed the judge.
 
“Jock testified that he mistakenly hit "friend request" instead of "mutual friends" while checking his 1,300 Facebook contacts to see whether defendant Violeta Milerman was already among them, after lawyers asked potential jurors if they knew anyone in the case.”

The jury had received clear instructions from the judge about the use of FaceBook prior to the trial.  Based on that instruction, Circuit Judge Nancy Donnellan immediately dismissed the juror and admonished him for his actions.  It would likely have ended there, but…..

Jock then posted comments on his wall, boasting that he had gotten out of jury duty and had been dismissed from the panel for his attempts to “friend” the defendant.  His wall included the following comment, "Score...I got Dismissed!! apparently they frown upon sending a friend request to the defendant...haha!!!"  It was this second strike against him that resulted in further action by the court.

Unfortunately for the ex-juror, court officials became aware of the post, leading Judge Donnellan to call the ex-juror back into Court to face criminal contempt charges. At the end of a two-hour hearing, Judge Donnellan commented, “I cannot think of a more insidious threat to the erosion of democracy than citizens who do not care.” She sentenced the ex-juror to three days in jail, and he was led from the courtroom in handcuffs.

Social Media Impact

This is another example of social media impacting judicial proceedings. As the attorney for the plaintiff in this case commented, “it was a very big deal” to his client “who had $48,000 in medical bills on the line,” and if the female defendant had, for example, responded to the Friend request and went on a date with the juror, perhaps the juror would have found in her favor. The use (and misuse) of Social Media matter during legal proceedings.

What should attorneys be doing?
In light of these types of missteps, attorneys must pay close attention to the impact of social media on their client’s trials.  In the above instance, it was the fact that Jock had been dismissed from the jury pool that led someone to then to re-examine his FaceBook account a second time and find his comments.  But how can attorneys’ best serve their clients moving forward?

Studeo Legal is one of a  small number of litigation support companies in the United States that have developed an expertise surrounding the monitoring of social media use by jurors during selection and trial.  As part of a background check on potential jurors, a list of social media users can be compiled by the investigative team.  Using specialized software, we now have the ability to monitor on an ongoing basis the use of FaceBook, Twitter and Blogs to determine if court instructions are being followed by the participants. 

We provide a daily report to the legal team, pointing out any potential problems with the use of social media as it relates to the trial.  This service is just another tool that can benefit our clients during trial, helping to assure that a fair decision is made and that the courts requirements are being met by the jury.  While some may view it as an intrusion, it is really about providing an even playing filed during litigation and insuring that judges instructions are closely followed by everyone involved in the trial.

 Call us today.  We will be happy to speak to you about your case.

 

 

Jurors Ask Witnesses Direct Questions in Patent Case

Chief U.S. District Judge Leonard David (Eastern District of Texas) recently allowed jurors in a patent trial to ask questions of the witnesses.  The Chief Judge had wanted to try the experiment for a long time, especially in a complicated patent litigation, due to the amount of technical material that jurors were expected to interpret during the trial.  The idea emerged after a conference he attended that consisted of chief U.S. district judges.

Judge David said that he had been considering the concept for the last year based on post-trial polling that he had been conducting of jurors.  He feels that the truth seeking role of a jury is improved when the jury is more engaged in the process.  He asked jurors whether it would have been helpful to their understanding of the case if they had been allowed to ask questions.  Based on the responses that he received, he felt that it would be beneficial to have jurors submit questions for witnesses as long as it did not delay or complicate the patent trial.

The case that he elected to try his experiment on was CEATS Inc. v. Continental Airlines, et al.  The patent dispute involved ticketing software that passengers interacted with to select seats on commercial airlines.  Given the somewhat complicated nature of the software processes, he felt it would be useful to allow the jury to submit questions. 

The Rules Created by the Court
Davis did not set out to reinvent the wheel; in fact he relied heavily on a review of cases in the 5th U.S. Circuit Court of Appeals which permits jurors to ask questions of witnesses.  He developed the following set of parameters to guide the process and make the implementation transparent to both sides.

• All jurors received forms to record witness questions which were handed directly to the judge
• All jurors handed in the forms for each witness so that attorneys would not be able to determine which juror or jurors were asking a question.
• Attorneys were able to review the questions and make objections before the judge directed the questions to the witness.
• The Judge reserved the right to change the questions so that they would be presented as “neutral”, without a bias towards either side of the case.

The judge stated that he was impressed with the quality and preciseness of the questions.  He felt that they were often on point and helped to clarify the often lengthy, technical presentation by the witnesses. Davis felt that the questions really highlighted that the jurors understood the major issues and were seeking further clarification.  In summary Davis felt that:

• On average, jurors only added one or two questions for each witness during the trial so there was no major impact on the length of the proceedings.
• Most of the questions that were submitted were relevant and useful in understanding the complicated software issues.

Impact on Case Strategy

Counsel did not receive advance notice of the experiment before the trial, so there was little time to adjust any trial strategy to account for the new procedures.   However, witness preparation included an extra step not normally covered.  Witnesses were informed ahead of time that the judge might be asking questions that members of the jury had submitted and defense attorney Melsheimer, a partner with Fish and Richardson, make it clear that these questions would likely be the most important questions that they would be asked and that they would require full and complete answers.

In fact, some of the juror questions helped the attorneys refine their own questions and switch the emphasis of their planned witness presentations.  Listening to what is important to the jurors can allow the attorneys to adjust the information presented by witnesses to respond to those particular concerns and therefore impact the juries decision. 

The case resulted in a March 21 defense win.  After the trial, Judge Davis polled all the jurors and the 11 attorneys involved with the case and the response from all was that the experiment had been useful to the proceedings.  While Judge Davis has not said that juror questions will become a standard part of ongoing patent cases, attorneys should certainly be aware of the possibility and be prepared to incorporate it into their trial strategy.

 

There is no Denying the Key Role of Email in Business – and It’s Impact in EDiscovery

Email is likely the single most important tool in a business organization.  At some point in time, every important business policy and decision appears somewhere in the email servers, oftentimes in multiple postings as different divisions weigh in over time as company debates rage on about policy, process or practices.

As a result of this, litigating attorneys have focused on email electronic evidence whenever they are filing suit on behalf of a client.  Email is an area ripe for discovery.  The question is how can a company still benefit from the extensive use of this tool without providing a roadmap to the opposition during the discovery process?

Courts have consistently ruled against companies that make weak claims regarding their inability to find and produce information due to their lack of retention policies.  Arguments such as “Those emails can’t be found” or “apparently those were inadvertently deleted” are no longer taken at face value by the court.  They expect you to be able to produce information unless an organization can point to very specific policies that would explain why that information is no longer available.  Document retention policies that are formal and enforced are really the only effective way to explain why data is not available.

A properly formed document retention policy that is designed and disseminated to all employees and properly enforced will ensure that relevant documents are retained and that policies are defensible to the court.  One need only look at the DuPont Corporation for details on how an effective retention policy might be developed.

In a federal district court case in Virginia,  E.I. DuPont De Nemours and Company, Plaintiff v. Kolon Industries, Inc., Defendant (2011 U.S, Dist. LEXIS 45888), DuPont had a two part document retention system in place that destroyed emails under specific circumstances:
 

To ensure that inactive accounts are not needlessly occupying space on DuPont's servers, DuPont deletes inactive email accounts from its servers after an employee leaves the company. DuPont handles such inactive accounts two different ways. First, if an email account is inactive for 30 days, it "appears on an inactivity report, which is then circulated to Human Resources, Legal, and upper-level management.  "These individuals then have 30 days to remove the email account from the inactivity report or the account will be deleted." Under this practice, therefore, an inactive email account sits for sixty days before routine deletion from DuPont's servers if it is not subject to a litigation hold or removed from the inactivity report. "Alternatively, during the time in question, a departing employee's immediate manager or the human resources representative may request that the email account be deleted at the time of the employee's departure, or shortly thereafter, provided the email account is not subject to a Legal Hold Order.”Under these circumstances, “according to DuPont, "the email account is deleted without being placed on an inactivity report."

During discovery, it was determined that a number of documents sought by Kolon were destroyed as part of that process before a preservation order was triggered by the lawsuit.  Kolon asked the court to rule against DuPont and punish them for destroying documents that were part of their discovery request.  The Court rejected the motion because the material had been destroyed as part of defined corporate data management plan. 

The document retention plan employed by DuPont benefited the company in two major ways.  First, it gives them a way to manage the company’s vast storage demands given the size of the corporation.  Secondly, it provides a defensible policy of destruction that likely eliminated information that could have been harmful to the corporation during any subsequent lawsuits.

Comprehensive document retention policies can cut both ways.  Eliminating data on a schedule may protect you in the case of future litigation, but it also means that your internal institutional knowledge is periodically purged, which may be a bad business decision.  Document retention policies should be carefully weighed and debated before implementation in order to benefit both sides of the equation.  Creating a policy that focuses strictly on the destruction of data to avoid future litigation problems may be shortsighted when weighed against what the company loses in institutional knowledge.

A few guidelines to keep in mind when creating a document retention policy:

1. You can’t create a document retention system in a vacuum. If your company is in a highly regulated industry—financial services, health care or oil and gas – you need to make sure that you account for all the rules and regulations that govern your industry regarding compliance.  They often require retention beyond what might normally be considered “reasonable”.
2. The goal is to create a comprehensive data retention policy that contains guidelines regarding:
a. Length of time to retain documents
b. Types of documents included in destruction policy and exceptions to standard policy.
c. Method and responsibility for destruction
d. A pre-designed litigation hold policy that is immediately implemented when a party reasonably anticipates litigation in order to suspend routine document retention and destruction policies to ensure the preservation of relevant documents.
3. Your policy needs to weight the advantages and disadvantages of routinely disposing of information that may be important to the long term viability of your organization.   An unreasonable document destruction policy may help you in litigation, but may harm your company’s assets by destroying important information. 

Note:  The details of the case are far more complex than I have discussed in this post and the ruling should be read in detail to understand the full complexity of the matter.  The ruling includes discussions on the duty to preserve, culpable conduct and spoliation. 

The Value of Project Management: The Devil is in the Details of E-Discovery Processing

In Re: Delta/AirTrain Baggage (N.D. Ga Feb. 3, 2012 is the latest case to include discussions about the importance of EDiscovery Project Management.  While not codified in any formal rule, recent court rulings lean very heavily towards the details required during the EDiscovery process; which in turn point to the key role that Project Managers have in current discovery litigation.

In re: Delta is an antitrust litigation case that came about during a number of legal activities that included a DOJ regulatory inquiry that asserted Sherman Act violations because both companies were charging a baggage handling fee of $15.00.  During the course of the discovery process, The US District Court granted spoliation sanctions against Delta for violating multiple FRCP rules.  Specifically, not following FRCP Rule 26 (g) resulted in 60,000 pages of responsive material being omitted from production to the plaintiffs.

What Happened?
Delta represented via a signature on the discovery that all of the hard drives had been searched and that there were no missing back-up tapes. Under FRCP Rule 26 (g) (1), an attorney signature on a discovery request “certifies that the discovery responses are complete and correct to the best of his [or her] knowledge, information and belief.”

Issue # 1 - Responsiveness
Plaintiff argued, and the Court agreed, that Delta did not verify that all of the hard drives in their eDiscovery service provider’s evidence locker were searched.   The apparent breakdown in discovery was summarized in the following steps:
1. Defense Attorney emailed service provider list of custodians whose hard drives should have been loaded onto Early Case Data Assessment Software.
2. Two weeks later, legal followed up with IT to confirm that all data collected from the custodians’ hard drives had been uploaded.
3. Service Provider did not respond with confirmation that each listed person’s drive was on the system.
4. Service provider only stated that files were identified by “user employee id, not by name.”
5. Delta did not provide proof that it had ever confirmed with their service provider that each hard drive that should have been run through Early Case Data Assessment software actually had been.

The Court's argument is summed up with the following, “This oversight is a huge hole in Delta’s electronic discovery process, and Delta has not adequately explained why it did not ensure in 2009 that every collected hard drive was actually processed”.  A signature is not just a signature; it is a representation that rules have been followed and in this case, must show that “a reasonable inquiry” into the factual basis of the statement has taken place.

Issue # 2 – Not all Relevant Backup Tapes Identified
Delta’s legal counsel thought that all backup tapes had been identified for the search process based on the verbal and email communications they had with IT and the external document retention vendor. IT never notified the legal team that there were additional backup tapes related to a different litigation matter where also being stored in the company’s evidence locker which might hold relevant material.  The court determined that in addition to email and phone communications, Delta’s counsel should have inspected the tape locker, since it contains tapes collected for all investigations and litigation

What Does Effective Project Management Bring to the Process?

Workflow - One of the basic foundations of effective project management is the codification of a workflow process.  Establishing a written workflow for managing evidence preservation, collection and production helps insure that EDiscovery outcomes are both defensible and predictable.  Having a written protocol as the basis of project management, that is employed under all discovery matters, assures a consistency in results and eliminates communication miscues.  All stakeholders in the process know exactly what is expected of them and the end work product will be improved when people understand that they are part of a team, with responsibilities. 

Demanding that all stakeholders have knowledge about the entire process, and not just their finite areas of responsibilities, results in a built-in set of checks and balances.  Requiring written documentation provides a defensible roadmap that refreshes everyone’s memory as to what steps were followed when the issue arises in court far into the future.

Project Planning - Preparation can only be done properly before litigation starts and scheduling deadlines eliminate the ability to properly determine the steps needed to assure proper compliance.  It must be clear to the legal team exactly who will be included in the discovery process.  This includes both in-house and outside legal counsel, third party service providers, internal IT, records management and any other information management divisions that may hold relevant material.  Holding meetings with all the players to develop an overall discovery plan template, with roles clearly identified and understood, will define the objectives and expectations of each member of the team.  Being part of the planning process provides the opportunity to get input and buy in from a wide variety of participants which results in open communication when it is important, when all parties are under the gun to produce within a short deadline.

The Ultimate Takeaway
No attorney wants to be in the situation of defending against allegations that they have failed to properly follow discovery rules.  This can be avoided through improved communications and the implementation of proper project management processes.  While it represents a mundane section of procedural law, it can not be ignored and benefits will accrue to those that adopt proactive project management as part of their client service delivery.  If your firm does not have internal EDiscovery expertise, it makes sense to work closely with an EDiscovery service provider that can help you fill those gaps.  Without clear communications and a transparent defensible process, data will fall through these gaps and may result in sanctions, an outcome that is not a benefit to anyone.

There is no “EASY” Button in EDiscovery – A Comment on Legal Tech 2012

There have been many excellent articles written about what was presented at this year’s Legal Tech: what was hot, what was new and what was “cool”.   I am not going to try to add my two cents to this already well documented discussion.  Rather, I want to focus on the overall marketing message that I was receiving as I walked around the show, speaking with vendors and reading the marketing headlines displayed in many booths while trying to absorb the trends and tidbits that would help me better serve my clients over the next year.

The consensus before the show began was that predictive coding (Technology Assisted Review) and Information Governance would be the hot topics that everyone would be talking about.  In fact, the show fulfilled that prediction, in spades!  These two topics are proving to be the major buzzwords for 2012.  They are complex and intimidating, yet they offer the most likely solution to the ever increasing volume of EDiscovery that is encountered in almost every litigation matter.  New software algorithms are being deployed at an ever increasing pace in an attempt to cull through large document populations and shine the light on the most relevant documents that need to be reviewed by attorneys before production or in preparation for trial.  So what is the problem?

As I wrote in last week’s blog:

We are all looking for the magic technology button (EASY) that will solve the problems we encounter on a daily basis with the ever expanding volume of EDiscovery data.  What we have to remember is: 1) technology is just another tool to help attorneys do their job and 2) that we have to be able to describe what the technology is and how it operates in order to defend our decisions regarding document productions and 3) there is no EASY button (more on that in my next blog).  We need to understand and document what goes on behind the scene when the technology performs its “magic”.

The first impression that is put forth by a company is often the one that is marked permanently in ones conscious.  It certainly begins to get embedded in your mind as the message is repeated.  I was bombarded with the graphic messages that each company had “the solution” to the EDiscovery problem.  Most often it was a new software solution that would eliminate the EDiscovery problem merely by installing it, “pointing” it towards the unknown document population and pressing a button.  EDiscovery made EASY.  But is the right message to be creating?  There was only limited messaging on the need for strong consultative services to deploy and implement these new technology tools properly and to develop and refine search methodology.

I believe that marketing EDiscovery services, no matter how technologically enhanced, as EASY does a disservice on several levels.  It is a disservice to clients who begin to think that it is not as complicated as vendors have been describing, and it should be faster and require very little interaction between the attorney and technologist to deploy effectively.  It is a disservice to vendors in the long run because if it is so EASY to implement and get good results, clients want to know why it costs so much. 

While this type of marketing message might be effective in garnering some quick attention and drawing somebody in for a discussion, it creates a virtually insurmountable problem as we then attempt to explain that we didn’t really mean that it would be that EASY and that it requires a collaboration between several different legal related disciplines to make it work.  And while the overall costs of EDiscovery can be reduced by including technology as part of the solution, the technology does not eliminate the need for humans.

Takeway

First impressions matter: we are often misleading our clients and then setting their expectation level to high with some of our marketing promises. There is no EASYbutton in EDiscovery.  It is a complex mix of technology and legal analysis which must be employed be experts in the fields of law, statistics, linguistics and database management. It is not a matter of "man vs. machine"   The argument in reality should involve machines providing human decision-makers with accurate, responsive information, rather than replacing those humans altogether.  Defensibility is a methodology that must be understood and described by an attorney in the courtroom, not a machine in the backroom.

The law (and more specifically the courts) are not satisfied with a black box solution; they have to understand how searches work and why certain results are produced.  Lawyers must be part of the team that implements technology, but it needs to include technologist, linguists etc to perform the work in a defensible manner and on a proportional scale. The process and methodology needs to be easier to understand and explain. In the legal context, lawyers need to know how a search works. They need to show all the things that were done that make the search results reasonable.  Sounds Easy doesn’t it?

 

When Using New Technology “Solutions” in EDiscovery Production and Review, Don’t Forget the Need to Focus on Methodology

As 2011 wrapped up, and 2012 begins, there appears to be a heavy focus on a technology application often called “predictive coding” or “technology-assisted review”.  We are all looking for the magic technology button (EASY) that will solve the problems we encounter on a daily basis with the ever expanding volume of EDiscovery data.  What we have to remember is: 1) technology is just another tool to help attorneys do their job and 2) that we have to be able to describe what the technology is and how it operates in order to defend our decisions regarding document productions and 3) there is no EASY button (more on that in my next blog).  We need to understand and document what goes on behind the scene when the technology performs its “magic”

On some level, lawyers have not yet embraced the technology advances because the courts have not yet given their ultimate stamp of approval on the technology approach.  However, courts are beginning to show signs that technology is an important part of the answer and should be integrated into the litigation process.  The ultimate question is what will this “new” multi-layered approach look like in the final analysis?

U.S. Magistrate Judge Andrew Peck of the Southern District of New York wrote an article in October, Search, Forward, in Legal Technology News.  He acknowledged that the nature of more advanced technology assisted review presents a new paradigm for the courts.  He wrote,

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. In my opinion, computer-assisted coding should be used in those cases where it will help “secure the just, speedy, and inexpensive” determination of cases in our e-discovery world.

While this article immediately caused a great volume of commentary and analysis on the merits of technology-assisted review and put forth the arguments that it was in fact the “magic bullet”, there is much more to Judge Peck’s article upon a closer reading.  In his article, he revisited some of the seminal cases in this area of the law written by Judge Grimm and Judge Facciola in which there was discussion about the limits of keyword searches and then described how these issues were analogous to predictive coding solutions.

He pointed lawyers to the Sedona Principles as a basis for developing a methodology that can be defended by the parties.  His two major points are that 1) the practice of EDiscovery should be focused on methodology, versus technology and 2) that legal arguments need to be grounded in the reasonableness of technology-assisted review.  One of the fundamental features when defining “reasonable” behavior in litigation is the ability of counsel to provide detailed information about how and why certain steps were taken during the document production process.  Explaining a methodology and providing detailed back up documentation is important when convincing a judge that you have done the best possible job to comply with the FRCP.

It is very likely that for the next several years, predictive coding/technology-assisted review will increase its role in EDiscovery until the next new technology (artificial intelligence?) come along to replace it.  It is clear that technology is here to stay and that we all benefit from its integration into the document review process.   Traditional review approaches are no longer defensible.  As a tool, technology can help us achieve the goal of taming the increasing volume of EDiscovery.  But in the end, it is only a tool.

Technology is only a tool
Tools need to be deployed properly, described completely and integrated into an overall litigation strategy. Technology can not do this, only humans can.  Lawyers and technologists need to apply their legal insights and understanding to implement the technology.  Solving complex problems and providing a methodology that is accurate and defensible remain under the control of humans.
Therefore, the methodology employed by a legal team is what will provide the judiciary with the context for the decisions that are made during the document review and will ultimate Lely determine whether you have taken reasonable, defensible steps.  You will have to not only be able to describe what the technology does and how it works, but be able to provide the judges with the experts used to execute the technology.  This will include lawyers, linguists, statisticians and technologists who will be required to demonstrate that the proper balance between technology and methodology.

Statisticians and Linguists – Why are they Important?
Let’s face it.  Most lawyers became lawyers because math was not their strong suit.  Legal training focuses words: making judgments and interpreting language, formulating defensible arguments and clearly articulating that argument.  In fact, only attorneys can make the subjective determinations needed throughout the litigation, particularly when determining proportionality and reasonableness in EDiscovery.  Lawyers are, and will continue to remain at the center of the legal process based on legal and subject matter knowledge.  Lawyers should focus on case strategy and allow the substantive experts provide the expertise necessary to obtain results and document their methodology.  As the field of EDiscovery becomes more complex and specialized, legal teams need to integrate the services of other experts to achieve their goals.

Predictive coding and technology-assisted review are based on statistical algorithms and linguistic word patterns, which are clearly specialty fields unto themselves.  Only linguists and statisticians who devise the software used in advanced can properly understand how best to integrate what they have created with the specific circumstances of your litigation.  It is imperative that the legal staff work with these experts to obtain the best results when using this sophisticated technology.  They should become part of the litigation team to insure that the results obtained are correct and defensible.  Their role is to develop protocols for the review, make sure that the correct searches are employed to find the documents, study the results of the searches and fine tune the search strategy, and make sure that the results represent a statistical sampling of the documents that can be defended in the courts.  This methodology is ultimately what is used to show that the steps you have taken are reasonable under the law and given the circumstances of your litigation.

What is the Takeaway?

Technology is here to stay.  Lawyers need it to perform their jobs effectively and represent their clients in a world of ever increasing complexity.  But technology is only a tool, and it is not the magic button that some hope it to be.  Successful litigation in 2012 requires that an integrated team of experts, including software experts, statisticians and linguists who can deploy the latest technology in the most effective manner.  While lawyers can and should continue to design the litigation strategy; the use of experts will improve the search techniques and ultimately result in cost savings as the volume of documents that needs to have eyes placed on them is reduced.  Technology is a tool, but it must be deployed intelligently by humans to produce any tangible results.  The mythology employed by these teams of experts is ultimately what the courts can understand and will rely on.
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Can Lawyers be an Impediment to Effective Document Review?

Last week, Forbes published an article by Karl Schieneman entitled Legal Hydra? Top Ten Tips to Become More Proficient with Machine-Assisted Review.  As he points out in the first paragraph of the article,

“The fact is, when it comes to electronic discovery, lawyers take a disproportionate role in the battle to solve what is largely a technological problem, i.e, how to find information that is relevant to a case from the huge vats of Electronically Stored Information (“ESI”) that are collected and preserved in many cases or government investigations.”

It is an excellent article that highlights one of the major rifts in today’s legal discovery between attorneys and technologists.  As a technologist (self-declared), I do have a somewhat biased opinion on this issue, but I try and look at this issue as objectively as I can.  It is clear to me that while the two fields are integrally related, that each requires some particular expertise that is not necessarily possessed by a single individual.  Even thought I have been involved in the legal industry for 30 years, I would never go to trial without an attorney.  So why do so many lawyers attempt to handle EDiscovery on their own?

It is accepted practice in the legal profession that you consult with a doctor in a medical malpractice case, a software engineer in a software case and an accountant when the case involves financial malfeasance. So why is there such resistance to “partnering” with electronic discovery experts during the phase of the case that involves this ever present discipline?  By attempting to handle this technology in house, lawyers can negatively impact the case, unless they happen to possess this ancillary legal expertise.  While clearly, there are many lawyers that have acquired the knowledge needed to handle some basic EDiscovery on their own; the newest technologies in the field, including machine-assisted review, predictive coding or concept clustering requires some very special knowledge.

Lawyers and legal technologist often speak the same language, but they are often speaking different dialects which can make it difficult to communicate effectively.  As a result, technologists can be rejected by a legal team for two primary reasons: 1) technology is viewed to be too expensive and should be avoided whenever possible; 2) technologists don’t explain clearly how machine-assisted review and other technology solutions can end up saving money in the long run.  Remember that it was not so long ago that lawyers insisted on physically looking at every document in a population, before the implementation of keyword searches helped lawyers parse out the more useful information for individual review.  New technologies need to be explained, tested and perhaps most importantly, explained and accepted by the courts.

It is time for the basic conversation between the two parties take place, with each party parking their egos at the door and truly listening to what is being said.  Machine-assisted review is likely to be a game changer in EDiscovery.  It is still very new to the marketplace and vendors need to spend a lot of time explaining why the legal profession should pay attention to it.  Lawyers will need to become comfortable with conducting EDiscovery under this new paradigm, and the change won’t come easily.  But I firmly believe that this technology will help control the volume of information which has to be reviewed during EDiscovery.

In order for that to happen, lawyers need to view technologists as partners in litigation, not as an uninterested outside vendor.  Making vendors an integral part of the team will result in someone vested in both reducing costs and making sure that technology is employed effectively on behalf of their clients.  There is a major difference between legal expertise and technological expertise.  Look for vendors who understand both the technology and have experience in the legal marketplace and you will have found an effective partner for your litigation.  Then go review some documents, a vastly reduced number of documents. 

 

Search Term Conflicts Continue to Argue for Professional Consultation

I have written in the past about the importance of Search in today’s litigation (“Are Search Technologists a Foregone Conclusion” and “The Role of Search in E-Discovery-Guidelines that Lawyers Need to Consider”.  There continues to be a growing body of case law regarding search technology and search terms that makes it imperative for attorneys to be aware of the implications of a poorly executed document strategy. 

Lawyers need to become better versed in search term construction and the need to include expertise in linguistics, statistics and computer science in creating effective and defensible search terms.  Courts are beginning to question the validity of key word searches that have been presented to define case strategy and have further questions the ability of lawyers to craft searches without the assistance of technology experts.

In fact, I strongly believe that the “practice” of search as part of electronic discovery has evolved into the “art” of search and is rapidly evolving into the “science” of search.  A recent case, Custom Hardware Eng’g & Consulting v. Dowell, 2012 U.S. Dist. LEXIS 146, 7-8 (E.D. Mo. Jan. 3, 2012), the parties disagreed over the development and use of keyword searches to provide correct results from the data. The defense argued that the search terms required a precise match between the limited set of search terms and the ESI, while the plaintiffs argued that the preset set of narrowly defined search terms would artificially limit the volume of discoverable information and therefore not be responsive.

The Court took the time to base their analysis on one of the seminal cases in this area of law, Victor Stanley, as well as information from the Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods.  From Victor Stanley, the court focused on the language that search terms are “appropriate and helpful” for performing electronic discovery searches but that they also have “well-known limitations and risks”.  From the Sedona Commentary, the court quoted some limitations and risks exist because “keyword searches identify all documents containing a specified term, regardless of context”.   The Court concluded that limited, precise search term searching alone could simultaneously be both over and under inclusive results based on retrieving irrelevant information and missing relevant documents due to simple misspellings.

Specific Issues Addressed by the Court
1.  Fear of producing privileged information
 The Court rejected the defendant’s objection regarding the production of privileged information using the proposed search terms. The Court pointed to the extensive case precedent that existed which allows a producing party to create a privilege log to exclude documents that would otherwise fit the search term results.  If responsive information is also privileged, a privilege log must be created and provided to exclude documents from production.

2.  Search Terms would include ‘only irrelevant information’
 Defendant’s argued that the search terms selected would include ‘only irrelevant information’.  The Court found the argument meritless and without any foundation in fact since there was no support provided for what the Court determined was a conclusion with no supporting 3evidence.

3.  Limited response of search terms
 The Court determined that the Defendants’ proposed search terms would be “problematic and inappropriate” since it would likely limit the responsive ESI to exact search term matches, including “phrasing, capitalization, or both.”   The result of using such a set of search terms would be an incomplete production because discoverable material would be rejected for reasons such as capitalization or unexpected phrasing of the search terms in the discovery material.

The Take Way
What is the importance of this ruling for the legal community?  I believe it further underscores the need to recognize the growing importance of the “science” of in today’s litigation.  .Before an objection is raised about the creation of search methodology; there must be a true legal basis for the objection.  Merely having concern about the production of damaging information does not meet the accepted criteria.  In order to craft an objection that will be entertained by the court, you must have the appropriate back up documentation to prove your point.  .Much of this back up documentation is technical in nature and must be provided by an “expert” who understands the limits of certain technology or processes.

Even better than being reactive to a search dispute is to be proactive by working with search experts throughout the entire ESI process.  This will help assure that you produce what you are required to without producing that which is not.  Search technology is indeed a science, and therefore lawyers need to join forces with experts to properly perform their legal obligations.  It is a rapidly changing area of expertise that requires the dedication and experience to stay current in the filed. It is indeed a different skill set that is outside the training of most practicing attorneys. 

Drafting a well thought out search methodology requires a close collaboration between the subject matter expert (the attorney) and a technology expert (the search consultant).  While it does cost money to retain the services of a search technologist, they can often save much more than their cost in reduced document production and decreased challenges from the opposition.  As the field moves further into new forms of technology to assist in controlling the rising costs of EDiscovery (concept searches, predictive coding, linguistics and ultimately artificial intelligence), it may well require collaboration between attorney and technologist.