Understanding the Processing Phase of eDiscovery

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Loading Data – The Processing Phase of eDiscovery

By: Kevin L. Nichols

 

 

The Processing stage of the Electronic Discovery Reference Model (EDRM) has three distinct perspectives when approaching the manipulation of data: the Litigation Support Professional, the Litigation Paralegal, and the Litigation Attorney’s perspective.  All of these perspectives fuse into one common goal of leading to admissible evidence that will win court cases at trial.  Although they must work in concert with one another, they each possess unique responsibilities and challenges to overcome.  There are certain “best practices” that each litigation professional should have at their disposal to access from their respective “tool box” when necessary and this document will assist them in this endeavor.

Litigation Support Professional (LSP):

The LSP is the “technical” first line of defense in any legal organization.  Based on the legal team’s structure and organization, the LSP typically oversees the processing phase of a litigation matter.  Many companies and law firms are savvy enough to process small volumes of data in-house, however, many matters require using a third-party vendor to facilitate these services.  LSP’s are typically responsible for or should be responsible for the following:

  1. Recommending a solution to handle the electronic evidence in the case, i.e. selecting to keep the data in-house or to use a third-party vendor;
  2. Managing the request for proposal (RFP) process from at least 3 vendors to make a strong recommendation to the legal team of which vendor to use and why;
  3. Reviewing and approving the statement of work (SOW);
  4. Communicating the technical specifications/requirements to the attorneys in general and specifically the billing partner;
  5. Preserving the metadata that existed before processing;
  6. Maintaining the defensibility of the reduction of data;
  7. Monitoring the production/delivery schedule and exception reporting;
  8. Quality control checking (QC’ing) data to make sure that it was properly de-duped, de-nisted, etc.;
  9. Determining which data proceeds to the next phase of the litigation cycle; and
  10. Reporting results to the litigation team.

Although this list is not exhaustive, these functions will greatly assist the legal team in spending the bulk of its billable time conducting a substantive review of the relevant documents as opposed to spending non-billable time trouble shooting duplicative and/or irrelevant documents.

Litigation Paralegal:

 

The Paralegal’s role during the processing stage should initially be supportive to the LSP.  The major contribution that paralegals can make during this phase is helping with early case assessment (ECA).  Paralegals tend to have a firm grasps initially on cases because they review and organize the files and documents.  Their intrinsic knowledge can be incredibly useful when coming up with appropriate search terms to reduce the data review set.  Moreover, paralegals know and work with the attorneys more closely than the LSPs, thus they understand their personalities and working style.  They can add input and make suggestions to LSPs to make sure the right vendors are selected to conduct this phase of the litigation.  Paralegals should do the following during this phase:

  1. Play an active role in the vetting process of third-party vendors, including the RFP and SOW portions;
  2. Make sure that the appropriate file types proceed through the cycle;
  3. Translate the technical jargon the LSP communicates to them in ways that attorneys can understand in order to make the appropriate decisions; and
  4. Act as the “project manager” of the process to insure that deadlines are set and met according to the team’s schedule.

Paralegals inherently should be included during the entire processing phase because they are the keepers of the documents (electronic and otherwise) and will ultimately be responsible for reviewing and producing same during the litigation.

Litigation Attorneys:

In this phase, many attorneys attempt to allow the LSPs and paralegals to handle this phase because it is highly technical.  However, more and more attorneys are fascinated with eDiscovery and want to master its complexities.  Attorneys should be involved with processing and here are a few ways how:

  1. Determine which files are likely to lead to issues of material fact and admissible evidence;
  2. Decide which custodians to “de-dupe” and how to reduce the data set;
  3. Either have the client or execute themselves the contracts, SOWs, etc.;
  4. Insure that the chain of custody has been preserved; and
  5. Certify that the methods used by the LSPs are defensible.

Ultimately, it is the attorneys’ responsibility to make sure that the methods used during the processing stage is legally sound and defensible.  Thus, although attorneys may not be very technologically savvy, they have a duty of care and responsibility in order to avoid any malpractice claims or issues.

The processing stage is a vital phase of the eDiscovery life cycle.  It is imperative to have solid team of litigation support professionals that are knowledgeable and experienced with both the technical aspects of litigation, as well as the tactical ones.  Reducing data sets are essential in conducting manageable reviews in order to lead to admissible evidence.  Admissible evidence, if it acts in your favor, wins cases.  And winning cases is ultimately why we litigate.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com.

eDiscovery “Think Tank” Offers Concrete Pointers

Key takeaways from the Executive Counsel Institute – San Francisco

By: Kevin L. Nichols

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Lately, eDiscovery related conferences are sprouting up all over the country.  If you are a small company or law firm, it is difficult to decide which ones to attend and how you will get the most “bang for your buck.”  Unlike most conferences where there is a panel of industry experts that make traditional PowerPoint or “fancy smancy” Keynote presentations, then field questions from the audience at its conclusion, the Executive Counsel Institute adopts a more differentiating format.  Labeled as “The Exchange,” it is comprised of 10 in-depth roundtable sessions geared towards educating and assisting corporate in-house counsel regarding the latest trends in eDiscovery related technology and best practices.  Although the sessions are moderated by the heads of eDiscovery practice groups of some of the most prominent international law firms and corporate in-house litigation support practitioners in the world, participants can freely ask questions and share antidotal comments and recommendations equally.

This unique format allowed various members of the audience to chime in on a multitude of topics based on the Electronic Discovery Reference Model (EDRM).

Recent Court Decisions
Here are some recent court decisions that were discussed that impact eDiscovery in significant ways:

  1. Pippins vs. KPMG – which was a wage and hour class action lawsuit that involved a broad definition of what “key custodians” were, such that it required the preservation of 100 hard drives;
  2. VOOM v. EchoStar, 2012 NY Slip Op. 00658 (Jan. 31, 2012) – which discussed the standard of invoking “legal holds” for preservation purposes;
  3. Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279 (S.D.N.Y. Feb. 8, 2012) – which essentially “green lighted” the use of predicative coding; and
  4. Sitton v. Print Direction, Inc., — S.E.2d —, 2011 WL 4469712 (Ga.App. September 28, 2011) – where the court upheld that the employer was allowed to monitor an employee who brought his own laptop to work to work on a competing venture using their internet.

Through these discussions, additional concerns were flushed out regarding the implications of these decisions, such as: How do you preserve your data when it is in the cloud and can involve multiple cloud vendors?  What happens if you are working “offline” and alter documents locally that are not in the cloud yet or are in draft form, are they collected and/or still protected under attorney/client privilege if they never reach their final destination?  What are the issues with data privacy when “outsourcing” sensitive documents like HR, audits, etc.?  These are just some concerns that arose during the conference.

Social Media
Always a fascinating and evolving topic, new social media eDiscovery solutions were discussed to collect and produce the relevant data from people participating in this space.  Some companies that were referenced with emerging social media eDiscovery technology were X1 eDiscovery (a desktop search application and now focusing on Social Media self collection and archiving), NextPoint, Hanzo Archives, and Covogence.  David Kessler, Partner at Fulbright & Jaworski LLP, mentioned that there were cases in Pennsylvania involving social media sites that are being used by defendants to win cases by treating postings as admissions by the party.  In one instance, a judge forced the defendant to “friend” them so that he could see beyond the privacy settings for an in camera review.  Bill Kellermann, E-Discovery Director at Wilson Sonsini Goodrich & Rosati, LLP, referenced the “Snitches get Stitches” case, where a killer’s girlfriend tried to intimidate a witness by threatening him/her using social media.  Companies really need to have solid policies and procedures and monitor their employees’ social media activities to limit their exposure and utilize the appropriate tools available to collect and produce this activity.

Technology Assisted Review (i.e. Predictive Coding)
Kellermann recited a popular quote, “One man’s technology is another man’s magic,” which was very apropos.  The industry has not wholeheartedly “bought in” to predictive coding (PC) yet.  Most agreed, however, that it is best used on large data sets, where the cost vs. technology is reasonable.  Some major players mentioned in this arena were Equivio, H5, Content Analysis, Recommind, Epic IQ, and OrcaTec.  Robert Singleton, Senior Associate at Squires Sanders, LLP, mentioned his firm’s study which generated roughly 90% accuracy utilizing predictive coding versus traditional human review based on using a “Super Reviewer” on 4,400 documents of their own data.  The general consensus was that it is technological tool that law firms need to be able to offer their clients in case it makes sense to reduce large corpuses of data to conduct a higher level human review.  Here are some tips regarding predictive coding:

1.         Load only your most important custodians to create your “seed set” and then apply to the larger data set.

2.         Use PC on your set of documents and determine the key words that you want opposing counsel to use.

3.         Use a “Word Wheel” index consisting of the frequent key words or terms that appear.

4.         Review and analyze the Da Silva Moore Case (Peck Decision).

5.         Be prepared for “seed set” battles in the future.

6.         Probative evidence is paramount for trial lawyers (A jury can only stomach 250-500 exhibits).

7.         PC does not do well with spreadsheets, technical documents, handwriting, etc.

8.         Tweets do not have enough “text” so it’s best to link the conversations into one document.

9.         Don’t forget to use David Brauer’s “Curse Word Search”.

10.       De-Duplication needs to be well thought out (no global de-duplication).

Resources and Tools
Below, please find some recommendations, suggestions, and resources to learn more about the industry that were discussed:

1.         Use Non-Disclosure Agreements (NDA’s) before providing data to vendors.

2.         Use your own data to test projects (not the Enron data).

3.         Find out who else is using the tool.

4.         Trend toward end-to-end solutions, collection to production.  Some problems with the fact that one piece in the solution does not always stay current.

5.         Talk to who’s happy with their tool and who’s not happy with their tool.

6.         Use LinkedIn Groups.

7.         Read Law & Technology News Articles.

8.         Make sure that the vendor has ethical standards (does not demo other people’s privileged information).

9.         If using contract reviewers, make sure that they are well qualified and vetted.

10.       Consult internally with other departments like audit, etc. to see what they use.

11.       Define what you want your review to look like first, then find a tool that does most of what you want done.

12.       Read industry blogs

13.       Read vendor blogs

Final Thoughts
Here is some parting information to take with you and I hope to see you at next year’s conference:

1.         Keep in mind that the decision that is made today regarding preservation will not be determined until 3 years from now in the courts, where technology will have improved and cost will have decreased.

2.         Negotiate a “Technology Pre-Nump” to get access to your data with your provider.

3.         Remember that “The Law firm’s job is to make money, corporate counsel’s job is to save it.” – Kimbir Tate, McKesson Corporation.

4.         Regarding Records Retention – Ask these questions: 1.) Do you have a records policy or hold protocol?  2.) Do you follow it?  3.)  Does it work? (Email management, protocol to trigger a hold, and separating and departing employee’s protocol -60 day policy minimum) – Robert Brownstone, Fenwick & West LLP.

5.         Be on the look-out for new technologies such as new algorithms to determine when people are lying because their speech patterns change for fraud investigations and for face recognition technologies.

Advice – “Tag yourself to a dog or coyote to throw off the rest of the world!” – Robert Brownstone, Technology & eDiscovery Counsel, Fenwick & West, LLP

 

“The Exchange” is coming to Chicago, New York, Houston and Los Angeles this year for those who want to experience the program. If they want to come, they can register at www.executivecounselinstitute.com.

 

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com

Rudolph’s not afraid of “the cloud,” so why are you?

 

By: Kevin L. Nichols

 

Each year, a “red nosed reindeer” is charged with the daunting task of maneuvering his brethren through “the cloud” to delivery toys to all of the “unnaughty” girls and boys.  He’s fearless and courageous.  Why are we so afraid of doing the same?

 

People forget that email used to reside on our computer’s harddrives only.  Moreover, our precious pictures and family videos were housed on our home computers, laptops, or even CDs/DVDs (oh my, talk about a flash back).  Now-a-days, it would be absurd to not use Gmail, Yahoo, or even Hotmail as our email client, or Flicker, Picasa, or even our local pharmacy for our photos, or YouTube or Vimeo to store our videos.  Why is it that we nearly have a conniption when an eDiscovery provider tells us that our data is going to be stored in “the cloud?”

 

Fear is the answer.  Many will say that it is because of lack of security, that you cannot control who is accessing your data, or what happens to your data if there is a catastrophe?  Aren’t your family pictures of your wife just after giving birth to your naked newborn just as important?  To bring it closer to home, you do not know who is reading your personal or work related Gmail account right now, however, this does not stop you from utilizing your account?

 

The time has come for us to accept that software as a service (SaaS) has become a way of life.  We embrace it many other aspects of our lives, such as cloud based email, photo sharing storage, and video, but are hesitant and reluctant when it comes to eDiscovery services.  If our good friend Rudolph can find his way through “the cloud” to make sure that Santa delivers our sons and daughters their presents this Christmas, can’t we maneuver through “the cloud” to host some data?

 

 

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting. For more information, please visit http://www.klnconsultinggroup.com.

 

Embracing Legal Technology

By: Kevin L. Nichols

            The pendulum has shifted dramatically for how lawyers develop business, litigate cases, and obtain/demonstrate the necessary evidence to win their cases.  When I started my legal career 13 years ago, I used “redwells”, binders, Word Prefect, Excel spreadsheets, hundreds of boxes, redaction tape, actual labels for Bates numbering, and warrooms where people literally lived at the office.  Now, law firms are much more technologically savvy, utilizing complex document management systems, eDiscovery/ remote online document review platforms, and social media to brand, market, and drum up business.  My, how times have changed.  Although most of the large (250+ attorneys) law firms have embraced technology and have developed litigation support departments, IT help desks, etc. to meet the growing challenges and needs of their clients, many of the small (<25 attorneys) to mid-sized (25>249 attorneys) firms have been left behind.  It is time for small and mid-sized firms to embrace legal technology and allow it help them win their cases too.

 

Here are 5 reasons why small and mid-sized law firms should embrace technology:

 

  1. It Equalizes the Playing Field – Gone are the days where the “little guys” get bombarded with a sea of documents that used to hide the “needle in the haystack” from opposing counsel.  Using affordable methods of forensic collection technology and reliable eDiscovery services, data can be extracted effortlessly from harddrives of computers and electronic devices.  Keyword searches and other “culling” methods can reduce the review subset to manageable levels where a thorough document review can be performed.  eDiscovery can level the playing by finding key documents that can prove your case.

 

  1. Reduces Waste – Producing 5-10 copies of dozens of boxes of documents is one of the biggest wastes of paper and destruction of the environment of all time.  I have visited warehouses of boxes of documents that need to be retained and preserved for years.  Why not scan documents and send massive document productions via a secured FTP, CD, or DVD.  5 boxes of documents can be kept on a thumb drive or disk, reducing space and allow you to take massive quantities of documents with you “on the go!”

 

  1. Saves Time – Lawyers and legal professionals can review documents and/or access their office computers from all around the world, just as long as there is an internet connection.  Presently, lawyers can conduct interviews with clients and potential witnesses via WebEx/GoToMeetings, video conferencing, and Skype.  Online hosted document review solutions allow users to access their data from anywhere, review, issue code, and redact all from the comforts of their home.  Lawyers are even appearing via video conference to participate in depositions.  Small and mid-sized firms can maximize their resources by being smart about needing to travel and how they can become more efficient.  Smart phones and tablets are making it even easier to get more accomplished in half the amount of time and with the right software, you can even use your devices during trial.

 

  1. Saves Money – Technology can make law offices much more efficient.  Scanning and routing incoming mail via email cuts down the need to maintain paper files, creating and maintaining chron files, and over using expensive copiers that breakdown and require lots of maintenance.  Moreover, the reduction of review time and the ability to collaborate with others via electronic methods, allow attorneys to focus on what is important, practicing law.  Maintaining large libraries, magazine subscriptions, etc. can be costly and time consuming.  Having a Lexis or Westlaw account and subscribing to the same publications online can make a significant cost saving impact (not to mention, save the environment).  Using software for calendaring, conflicts, eFiling, etc. can also save money in the long run by not having to hire staff to do the tasks these methods can do for you.

 

  1. Is More Effective – Counting on a jury comprised of a 10th Grade education to determine the outcome and damages for a complex pharmaceutical patent litigation case, is an expensive gamble in of itself.  Let alone, relying on an expert with the brain of Einstein but with a distinctly strong Russian accent to communicate his intimate knowledge of this product to this jury is a difficult task.  What if you incorporated 3D animation to illustrate this expert’s knowledge, which whittled down the dispute and clearly showed the infringement in 30-45 seconds?  Technology has a funny way of doing things like that.

 

Technology’s purpose is to make life easier.  Although, I have problems with replacing human beings completely because we all need to earn a decent living to feed our families and survive, technology can save time and money, and allow smaller adversaries the ability to battle and defeat the Goliath’s of the world.  Often times, small and mid-sized firms feel as though they do not have the time nor the resources to invest in these types of solutions to common problems.  Many of them will avoid asking for ESI (electronically stored information) in document requests or will use foam “story boards” in trial because they are too comfortable, do not want to deal with the expense, or are unwilling to venture out to new, unchartered territory.  My recommendation…take the leap…take the plunge…embrace technology.

 

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in
Litigation, Diversity and Business Development/Social Media consulting.

For more information, please visit http://www.klnconsultinggroup.com.

Impressions of the Masters Conference San Francisco

By: Kevin L. Nichols

Thanks to Wave Software’s Co-Founder and President, Robert E. Childress, I had the distinct pleasure of attending the Masters Conference in San Francisco, of which he is also a founder.  This year’s conference took place on September 14, 2011 at the University Club, a historic hotel that still has phone booths and an Al Capone-ish type vibe that I experienced for the first time.

 

The Masters Conference brings together thought leaders from law firms, corporations, and the courts for the purpose of developing strategies to grapple with the information life cycle of the litigation process.  I was fortunate to meet founders and high level executives of such sponsoring companies as Digital Reef, iDiscovery Solutions, Inc., and Kroll Ontrack.  Moreover, I was able to reconnect with colleagues/friends in the industry who happened to be panelists this year, such as:

 

  • Gordon Calhoun, Partner, Lewis Brisbois Bisgaard and Smith;
  • Jerone “Jerry” English, Director of e-Discovery and Litigation Management Group, Intel Litigation Group;
  • Browning Marean, Senior Counsel, DLA Piper; and
  • Kimbir Tate, Senior Manager Litigation Support, McKesson Corporation.

 

Some of the topics were eDiscovery Best Practices, Social Media, and Preservation.  The attendees were comprised mostly of litigation support professionals from law firms, state agencies, and local vendors.

 

Overall, the conference was a productive and practical exchange of ideas regarding how to keep up with the ever changing world of legal technology and eDiscovery.  I found it very useful and the networking exceptional and encourage others to attend future conferences.

 

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco.

For more information, please visit http://www.klnconsultinggroup.com.