Faced with the daunting task of a multi-million document discovery review and production, linear-manual review may be prohibitively expensive and time consuming.  The bench and bar have grown accustomed to other technologies that cull documents prior to review including de-duping, de-nisting, filtering and keyword searching. However, some courts have ruled that keyword searches, when performed without the appropriate safeguards or agreement by counsel, can have limited results. U.S. v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008); William A. Gross Constr. Assocs. v. Am. Mfrs. Mut. Ins. Co., 2009 U.S. Dist. LEXIS 22903 (S.D.N.Y. Mar. 19, 2009).

Magistrate Judge Peck’s recent order in Da Silva Moore, and the ongoing proceedings in Kleen Products, LLC, et al v. Packaging Corp. of America, et al, illustrate courts’ and counsels’ emerging willingness to incorporate predictive coding in the review process.  The state court opinion in Virginia takes a similar approach.  All three cases expressly or implicitly approve, at least provisionally, the use of predictive coding.  Many issues remain unresolved and the decisions raise new issues as well. Three important issues are:

1. How much transparency and co-operation is required?  Must a party that wants to use the technology grant access to opposing counsel to the non-privileged documents used to determine relevancy to opposing counsel;
2. Is agreement required?  In Loudon County, VA, the answer may be “no;” and,
3. Will it work? Both cases reserve some right to the objecting party to challenge the results.

More decisions regarding the use of predictive coding are sure to come, making the selection of e-discovery counsel a critical point.  Will you be ready?

Michelle L’Hommedieu is an Associate at LeClairRyan and a member of the E-Discovery practice team. 

So, when I read Pouncil v. Branch Law Firm, Case No. 10-1314-JTM-DJW (D. Kan. Mar. 7, 2012), I tried to be sympathetic. After all, this is a client suing its law firm. That’s got to be an uncomfortable situation. But I am afraid that I am in danger of another visit from Karma. Here’s what happened: The plaintiff was the estate of a man who died while taking Vioxx, but its claim was denied in the mass settlement because it did not meet eligibility requirements. The estate apparently decided the law firm was at fault and sued for malpractice, negligence and breach of fiduciary duty. During discovery, the estate sought copies of correspondence relating to the underlying case. When the law firm’s production appeared deficient, the estate moved to compel, and the law firm found itself before e-discovery luminary David Waxse, U.S. Magistrate Judge.  (Should have seen that one coming.)

Well, there are lots of interesting things to read in this short slip opinion, but the ones that caught my eye and purged me of all remnants of the sympathy I had been feeling for the world at large were these two: First, the named partner of the law firm (who is quoted in the opinion) testified that “[w]e’re kind of new to the e-mail world.” Alright, I completely understand that not every lawyer understands the detailed working of their e-mail environment, but “new to the e-mail world?” This is at a time when reports proliferate that some people are already abandoning e-mail in favor of messaging services and texting. Who is really “new to the e-mail world” in 2012?

So, what exactly is wrong with this picture? Well, I don’t know the attorney involved, so I have no reason to doubt that he is an excellent lawyer. But, as is probably true of most law firm managing partners, he is not an e-mail expert. Mistake No. 1: Don’t put up the managing partner as your witness on your firm’s e-mail system, unless, of course, she happens to be an expert on the e-mail system. Despite being more common than newspapers, e-mail is actually very complex. That little word describes at once a very complicated file structure and an even more complex system for managing those files. It is important, therefore, to make sure that the person that is going to testify about your e-mail system actually knows something about e-mail.

Now, in fairness to the attorney in this case, he made his statement about being new to e-mail in the context of questions related to the firm’s preservation efforts, so perhaps it was just a slip of the tongue, and I am going to bet he never actually expected to testify about the e-mail system. But, that brings up Mistake No. 2: Based on the attorney’s testimony, Judge Waxse concluded that that the law firm “did not issue a legal hold notice or take affirmative steps to ensure that all key employees preserved relevant evidence[.]” I could probably stop right there, but, sadly, I suspect there are a number of law firms in America that routinely advise their clients to have reasonable processes in place to issue legal hold notices and preserve relevant evidence, but don’t follow their own advice, just as I suspect there are an equally large number of attorneys who don’t have a current will. (And, please, don’t ask me when mine was prepared.)

Oh, I am sure there are lots of things I don’t know about the facts of this case, and, as we all know, the “real story” is not necessarily the one that is reflected in the judicial opinion. But the case does serve as a cautionary tale for law firms that e-discovery does not discriminate. The rules that apply to our corporate clients apply to us as well.

If you want to log off and come back next week for Dennis Kiker’s forthcoming blog on allergies and e-mail (yes, he really found a connection), I understand and won’t be offended. But, if you are a fan of Helm, The Band, Bob Dylan, the sixties or rock and roll, or just want to take a chance, please read on and feel free to send me any comments you may have.

As I said, Levon Helm died yesterday. Helm was best known as a vocalist and drummer for The Band, a rock group with origins in the sixties and the Woodstock scene that emerged from the shadow of Bob Dylan (literally, they were Dylan’s back up band from 1965 to 1966) to become one of the most influential rock groups of the era, if not all time.

Helm, who many saw as the heart and soul of the group, formed The Band with fellow members Robby Roberson, Rick Danko, Richard Manuel and Garth Hudson. In 1968, they released their first album Music From Big Pink, a groundbreaking record Rolling Stone magazine listed as one of the 100 greatest albums of all time (#34).  The following August, The Band played Woodstock, where Helm settled down to live and, later in life, performed his Midnight Ramble shows.

In all, The Band recorded 10 studio albums (several without Roberson, with whom Helm had a public falling out, bordering on feud), three live records and two albums with Dylan. They “dis-Banded” in 1976, at least temporarily, with their legendary performance at the Winterland Ballroom in San Francisco, a show captured in Martin Scorsese’ documentary The Last Waltz, which many consider the greatest concert film of all time. It included guest appearances by, among others, Eric Clapton, Van Morrison and Neil Young before a three-song coda with Bob Dylan (Forever Young, Baby Let Me Follow You Down and I Shall Be Released). The Band was inducted into the Rock and Roll Hall of Fame in 1994.

Helm’s voice has been called one of the most distinctive and soulful in rock history.  He sang lead on hits like The Weight, Up On Cripple Creek and The Night They Drove Old Dixie Down, a song that paints a vivid yet mournful picture of the South right after the Civil War, so resplendent with imagery you can almost smell the lingering cannon smoke and burning cotton fields of a defeated Dixie as Helm belts out lines like, “In the winter of 65, we were hungry, just barely alive/By May the tenth Richmond had fell/It is a time I remember oh so well” with a Southern drawl loyal to his Arkansas roots.

After The Band, Helm released several successful solo albums culminating in the 2007 bluegrass gem and Grammy award-winning Dirt Farmer, on which Helm’s raspy, cancer-in-remission voice rings with the same rural purity it did more than 40 years prior, yet with a little more rust on his unmistakable timbre.

Helm was an accomplished actor, as well, starring in films like The Right Stuff and Shooter, with Mark Walberg, in which Helm’s aged twang and body are on stark display. His greatest role may have been his first as country singer Loretta Lynn’s father, Ted Webb, in Coal Miner’s Daughter, opposite Tommy Lee Jones and Sissy Spacek, who won the 1980 Best Actress Oscar for her role as Loretta Lynn. To say Helm is convincing as the bib overall-clad yet wise coal miner trying to feed and clothe his poor mountain family on company coins earned by swallowing pales of ancient Kentucky coal dust doesn’t say enough about the authenticity and sincerity of Helm’s performance. As if Fate wanted to acknowledge a deeper and final symmetry between the two men, Webb died of black lung and Helm would be taken by throat cancer.

Personally, I love to listen to Helm sing, or just hear him talk for that matter. When I learned of his death, I wanted to play his albums and write some sort of ode or tribute. I tried my best to find some connection between Levon Helm and e-discovery, but everything I came up with was a stretch. The closest link I could think of was that his last album was called Electric Dirt, a solid album that pays tribute to Helm’s blues and country roots, but proves a strained nexus nonetheless.

Helm reminded me of my grandfather; of feeding hay to the cattle from the back of a red ’52 Ford tractor as a kid; and of driving the back mountain roads of North Carolina in July in search of a cold bottle of Coca-Cola from the cooler on a general store’s porch. Helm was genuine, honest and didn’t suffer fools. He had soul, courage and a sound that he would sling up from his heart and through his lungs while the veins in his necked twisted and bulged in an effort to launch the words with the same passion with which they were born. He was formed of Arkansas clay and grit, and grew a rugged and endearing patina travelling the world playing music with his earnest and unabashed Southern disposition on humble display.  And, in the end, a full life left Helm’s body dusty and worn out, his soul and truth unblemished.

He died “peacefully” in New York at 1:30 in the afternoon.

I had the good fortune to see Helm twice in concert and also meet him four years ago this month backstage at a bluegrass festival called MerleFest in North Wilkesboro, North Carolina. I say met, but the truth is we didn’t speak a word. He was walking towards the stage and he stopped in the middle of a small group of folks that included me. I smiled at him simply because I was happy to be there and about to watch him sing in person for the first time in my life (I had turned 40 a few days before.), and he knowingly grinned back. I am not someone who gets star-struck, and I wasn’t then, but in that moment I felt connected to all those great albums, concerts, songs and Levon.

R.I.P. Levon.

If, like me, your morning starts with an hour-dose of ESPN’s SportsCenter and a quick browse through the local sports page (and an eight-ounce Red Bull and two yogurt peanut Balance Bars, for full disclosure), you know that Bobby Petrino, the University of Arkansas’ successful head football coach (21-5 and a 2012 Cotton Bowl victory in the last two years), was fired on Tuesday by the school’s athletic director for knowingly misleading the university and engaging in reckless behavior by allegedly having an inappropriate relationship with a female employee associated with the football program. Petrino is 51 and the female employee, Jessica Dorrell, is 25.

The problem started when Petrino crashed his motorcycle earlier this month, breaking four ribs and cracking a vertebra. Initially, Petrino reported to police and school officials that he was alone when he crashed, but it was later revealed that Dorrell was riding with him on the bike. Reports quickly surfaced theorizing the married, father-of-four Petrino was engaged in an inappropriate, if not sexual, relationship with Dorrell.

So what does another sports figure or college coach behaving badly have to do with electronic discovery? Well, as it turns out, school authorities and a thirsty public want more details, and those details may reside on Petrino’s cell phone, which, by the way, is the property of the University of Arkansas, making the cell phone state property and subject to freedom of information laws.

So far, phone records reveal Petrino and Dorrell regularly communicated, sometimes texting or calling dozens of times a day, including on game days. For example, on three separate days they exchanged 73, 84 and 91 texts. While clear evidence remains lacking, some sports prognosticators are hypothesizing, if not salivating over the idea, that a deeper dive into the phone records may reveal sexting, Tiger Woods-like voice messages and, God forbid, Brett Favre-esque pictures.

As Clay Travis, a columnist and sports talk show host for 104.5FM The Zone in Nashville, explained on The Dan Patrick Show on April 13, the question is whether the texts, voice-mail and any pictures are stored on the phone or University-managed servers and backup media. By the way, Travis has a law degree from Vanderbilt, so he has some credibility from both the sports and legal angles of this story, even if Vanderbilt is Arkansas’ SEC rival.

Stay tuned to ESPN (and this blog) for further updates on this developing electronic discovery story.

More often than not the “eDiscovery problem” is really a communication problem, a planning problem or a failure to get the right people involved until it is too late to complete the task without Herculean effort that is disruptive to the organization. Everyone has their war stories, here are a few of the situations I hear of most often:

• waiting too long to begin identifying sources of relevant data – resulting in a late start that makes each phase of the project a mad dash to production;
• not properly preparing for the meet & confer process – resulting in a lost opportunity to fully utilize the cooperative potential of the process;
• collecting documents too quickly – resulting in multiple collection requests to IT or the expense of using outside resources to re-collect once the scope of collection changes;
• gross underestimation of the time and money required to complete the project – resulting in budget overruns and missed production deadlines;
• using the wrong document review technology – resulting in inefficient and costly document review based on an inability to leverage technology properly; and
• beginning document review too early – resulting in a costly re-review when the issues are clarified.

I could go on and on.  The demands of complying with eDiscovery obligations have been around for a few years and they are not going away anytime soon. Therefore it makes sense for corporations and law firms to accept the fact that many cases will have some amount of eDiscovery work to be done.

Having been involved in eDiscovery projects large and small for many years, I have seen first-hand that there is a big difference in both cost and business disruption between an eDiscovery project that is properly planned and managed and an e-discovery project that is ad hoc and reactionary. Too many cases do not have the benefit of a team member that is experienced in the legal and technology issues of eDiscovery to set expectations, educate the team on the tasks that need to be accomplished, develop a plan and keep the team apprised of how changes to the case may impact the workload and timelines associated with eDiscovery.

An eDiscovery project should be managed with the right combination of legal expertise and project management discipline. This begins with a legally defensible plan to identify the relevant custodians and data sources and preserve, collect, process and filter the data. Since most money spent on eDiscovery is spent on document review it is especially important to have the right people and process involved in this phase.

I have seen law firms and corporations charge into a document review project with lots of enthusiasm, but without an appreciation for the people, process and technology infrastructure required to have a team of people review a large volume of documents on a predictable timeline with low cost and high quality — all while accurately identifying privilege, key documents, handling non-English language documents, accounting for and viewing arcane file types and using technology to route documents to the team members best suited (and trained) to efficiently handle that particular category of document. There are more moving parts to an eDiscovery project than most people realize!

Both eDiscovery and project management are complex topics that are not mastered by attending a CLE or reading a few books. Quarterbacking the eDiscovery aspect of a case is best done by someone who has been doing so long enough to see the anomalies and to know how easily the budget or timeline can go off the rails.

It occurred to me after re-reading last week’s post (yes, I re-read my own blog posts, doesn’t everyone?), that I might have made a definitional error when I said “I want an e-discovery lawyer for my e-discovery project”. There are a lot of folks that consider themselves e-discovery lawyers who, when presented with the multi-million page document review project, will say, “I’m not that kind of lawyer.” Consider me, for example. Sure, I’ve helped out with the occasional project recently, mostly in an advisory capacity, but it has been close to a decade since I had to be the guy directly managing the project, the review team, and the vendor. So, I really am not that kind of lawyer, but I am still an e-discovery lawyer. “How can that be,” you ask with shock and surprise? The answer is simple: e-discovery is not simple, and it is not simply document review. Document review is incredibly important and increasingly complex, but it is the tail end of a process that begins with people like me creating ESI and saving it somewhere on a computer system. It’s towards that end of the process that e-discovery lawyers like me spend most of our time, figuring out how to more effectively and efficiently organize, identify, preserve and collect information.

But even at the near end of the process, there are a number of different and equally important roles in the process, some involving lawyers and some not.  As I suggested last week, you need a quarterback, someone to read the defense and call the plays, and I think that lawyers – the right kind of lawyers – are particularly well-suited to that role.  But a successful e-discovery project requires a team.  Someone told me today that Tom Brady can’t throw the ball and catch the ball.  Well, neither can the e-discovery lawyer I described last week.  She needs a team of professionals to get the ball across the goal line.  The range of skills and disciplines necessary to efficiently and effectively execute an e-discovery review project is impressive: the technological know-how of an IT professional, the organizational skills of a paralegal, and the unheralded but critically important reviewer.

Yes, despite all the technological breakthroughs of the last decade, there is still a place for the human being looking at documents and making decisions about the meaning and importance of that document.  In most cases, those decisions are legal ones about relevance, privilege and confidentiality, so, in most cases, those reviewers are attorneys.  These folks are the linemen on the team, and they are highly undervalued.  Ask any quarterback (ask Tom Brady, for instance) how important the guys on the front line are.  Tom can’t pass and block at the same time either.  Well, no e-discovery project is going to get done without the front line reviewers, and there is a world of difference between a dedicated, invested professional, and someone biding time until something better comes along.  I argued last week that you need an e-discovery lawyer for your e-discovery project.  What I should have argued is that you need an e-discovery team, and you should care about each and every member of the team.  Indeed, you should also care about the playing field, the trainers, and the locker room.  You’ve got a lot riding on your e-discovery project.  Do you really think that the cost per document should be the sole criteria for choosing who handles it?  Sure, cost is important, but so too is the outcome, so make sure your money is being well-spent.  Get to know your quarterback, walk the field and meet the team.  Good outcomes are a result of good people following good processes and leveraging good technology.  So, what do I really want for my e-discovery project?  A good e-discovery team.

The legal profession in general has been frustratingly slow to embrace both technology and project management in managing litigation. We don’t have that luxury in the eDiscovery world. As a lawyer whose practice is focused on managing complex electronic discovery projects, I have spent lots of time developing project plans that integrate technology and process to reduce cost and increase the quality of eDiscovery work (identification, preservation, collection, early case assessment, data processing, data filtering, document review and production).

Naturally, I also spend lots of time advocating for increased technology utilization and project management discipline. Here are a few of the dance lessons I have been teaching for several years with varying levels of success:

Embrace Technology: Technology continues to evolve in ways that affect both the types of eDiscovery problems we face and the types of solutions we deploy to solve eDiscovery problems. Many lawyers will never fully grasp the inner workings of data indexing and search or understand how document review tools work. However, understanding that these tools have value and staffing your team with folks that do understand them will give your litigation team an edge on those that insist on living in a paper only world or wait so long to address the eDiscovery aspect of their case that they are at a strategic disadvantage.

Implement Project Management Discipline: An eDiscovery project has many moving parts. This is not to say that other aspects of litigation are simple. However, the folks litigating the case have likely been through many cases and the steps have become second nature. The eDiscovery aspect of litigation is far from second nature for most litigators so project management discipline is essential: identify and involve the right people as soon as possible, develop a realistic project plan that is customized for the task and deploy technology solutions that are defensible and cost effective.

Find the Right People: Both eDiscovery and project management are complex topics that are not mastered by attending a CLE or reading a few books. Dennis Kiker posted an excellent article nearby on the difference between a lawyer that has dealt with a few eDiscovery issues in her cases and a lawyer that focuses her practice on the law, technology and process of eDiscovery. Quarterbacking the eDiscovery aspect of a case is best done by someone who has been doing so long enough to see the anomalies and to know how easily the budget or timeline can go off the rails.

We are progressing to a time where eDiscovery is just another routine part of litigation.  To get to that point, we need to understand that technology is not going away and that eDiscovery is best handled by getting the right people involved early to set up and execute a defensible plan.

Their entire careers have been spent working in the area of e-discovery.  Some of them started, as so many talented young lawyers must these days, reviewing documents as contract attorneys.  From the dozens of their peers, they distinguished themselves by their intelligence, their understanding of technology, and their innate ability to grasp the importance of process in document review.  As a result, each was given increasingly more difficult types of work and, ultimately, hired as an associate.  Just as the field of e-discovery continued to evolve and mature, so, too, did these e-discovery lawyers.  In addition to keeping abreast of the emerging case law, they studied such unlawyerly things as project management and made an effort to understand the developing technologies that have become so important to our industry.  When their peers among the associate ranks were learning to draft motions to dismiss, these lawyers were managing teams of attorneys, paralegals and technologists, often dozens of personnel, in large projects involving millions of pages of documents and hundreds of millions of legal decisions about relevancy, privilege and confidentiality.  It is quite fair to say that, long before becoming a partner, each of these attorneys managed more people than most lawyers will manage in their entire careers.  On top of that, they had to manage third party vendors responsible for collecting, processing, hosting and producing the relevant documents, interface with the trial teams and the client on a variety of complex legal issues, understand and then train their staffs on the legal issues in each case, design the project workflow, and manage the entire process so that deadlines were met, the relevant information produced, and client confidences maintained.  Just try asking your average fourth-year litigation associate to do that.

I missed Legal Tech this year.  For each of the past four years, I have made the trek to the zoo at the New York Hilton to see what was new in e-discovery, network, and, hopefully, meet someone that would like to hire me.  (That’s really why we all go, isn’t it?)  But, this year, I had to work.  And, you know what?  I really didn’t miss it all that much.  The crowds, the vendors on the floor vying for your attention, the dozens of iPad give-a-ways…well, okay, I did miss it some, but not as much as I thought I would.  You know what I really missed?  People.  Legal Tech has become an opportunity to see some folks in our industry that I’ve really come to care about, and I missed seeing them this year.

So, what’s the e-discovery connection?  People.  As I was mulling over what I missed about Legal Tech, it occurred to me how amazing it is that I’ve met so many incredibly talented and interesting people all as a result of the sudden emergence of the e-discovery industry – IT professionals and paralegals, records and information management experts, training professionals, lawyers with an unusual interest in all things technological, and the list goes on.  And that, friends, may well be the best thing that has happened since the revision of the Federal Rules of Civil Procedure in 2006.

E-discovery has forced folks from different walks of corporate life to come together and work as a team.  Where formerly we had only uncomfortable, occasional interactions between IT and legal, we now have formal working groups, teams of professionals leveraging their respective skills and talents towards a common purpose: helping the company meet its legal obligation in as efficient and effective a manner as possible.  And that is a good thing.  I am increasingly impressed by the level of cooperation and collaboration that I see between corporate legal and IT departments (and, when you are really lucky, the Records and Risk Management departments as well).  This week, while I was missing Legal Tech, I was introduced to a new client.  This company manufacturers consumer products, and, since we live in the United States, it is subject to constant litigation.  Over the past decade, the company has developed and refined its discovery response capabilities to ensure that ESI potentially relevant to virtually any matter can be quickly identified, preserved and collected when required.  Any litigating attorney can tell you what a relief it is to feel confident about her client’s ability to respond appropriately and effectively to demands for ESI.  Few of us felt that way about most of our clients not so many years ago.  And what has made the difference is people.

So, with luck, I’ll be back at Legal Tech next year to see my friends, people who have effected such a remarkable change in the way we practice law over such a remarkably short amount of time.  In the meantime, maybe we can catch up between flights in Atlanta?

Having spent many years managing electronic discovery projects as eDiscovery counsel, including managing the document review work, I know the importance of keeping everyone on the same page. In the context of a large document review project, that “page” is the document review guidelines.

The document review guidelines initially serve as the training material for the review team and the rules that govern each categorization decision. Not sure if a document is relevant? Look at the guidelines. Not sure if the document should be tagged as “Highly Confidential” or merely “Confidential” per the protective order? Look at the guidelines.

Guidelines are an essential part of a well managed document review project. Yet, they are often not given the attention they deserve. Here are a few suggestions for developing guidelines for your project:

• Content: How much detail should you include in the guidelines? The guidelines should give the person categorizing documents a one stop resource for document categorization rules. The goal is to avoid having the reviewer flipping through multiple documents and notes to determine how to categorize a document. You will likely want to provide the review team reference and background material that is relevant to the case, e.g. fact summaries, org charts or notes taken from interviewing employees whose documents will be reviewed. However, this information is often better suited as an appendix to keep document review guidelines streamlined and functional.




• Form: The pace of your review team will increase if your guidelines flow chronologically through the logical decision making process and track with the coding form in the database. When drafting guidelines for my cases, I use input from the document requests, the client and the litigation team to draw a flow chart on a whiteboard and then draft the guidelines to match. Document review guidelines are typically broken out into sections; Disposition (Responsive, Privileged, Not Responsive or Not Sure), Confidentiality (Not Confidential, Confidential or Highly Confidential) and other categories as needed.




• Timing: The document review guidelines should be as complete as possible before the document review portion of the project begins. Otherwise, you may unnecessarily waste time (and money) re-reviewing documents later when issues are clarified. When you are tempted to begin a large scale document review project without clear guidelines refer to my “herding cats” comment above.

  

• Input: It is important to get sufficient “buy-in” on the guidelines prior to starting review so both substance and form are effective. The litigation team needs to understand what the review team is identifying (and what they are not identifying) so they are getting the information they need to prepare for depositions and trial. Likewise, someone who has managed many eDiscovery projects will be able to tell you whether your guidelines are clear and streamlined or overly detailed and unwieldy – the latter will lead to sluggish review times and increased cost.




• Guideline Changes: The guidelines will change throughout the project regardless of the level of effort to finalize them in advance of the review. One of the important benefits a review team provides is a line-of-sight into the contents of the documents. After a week or two of reading email and documents, the review team will likely know the overall document set better than most of the client employees. With the benefit of the knowledge gained through this review, new trial themes, claims and strategies may emerge – and as a result the guidelines will change.




• Version Control: Update the document review guidelines periodically as new information surfaces. For example, most review guidelines will instruct the reviewer to code a document as “hot” if it falls within a list of categories. Update the guidelines as the list of categories evolves over the course of the project. Use date and version control on your guidelines so you have the ability to later track which guidelines governed your document review at specific points in time.

Still, whenever I hear a discussion about discovery abuse and limitations on discovery, there’s one word that just doesn’t seem to get enough airtime: relevance.  I can recall being on a panel with a very well respected federal judge who will remain nameless for reasons that will soon become abundantly clear.  To this day, I cannot recall the topic on which we were speaking, but, in the middle of the discussion, this wise representative of the federal bench pronounces, “But remember, the rule is that if it is relevant or reasonably likely to lead to the discovery of relevant evidence, it is discoverable.”  I was stunned.  I hope that you are stunned as well.  If not, you need to get out your copy of the Federal Rules of Civil Procedure, because that is most decidedly not what the rule says.

The rule says this:

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense[.] … Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”  Fed. R. Civ. P. 26(b)(1) 

Relevance is the touchstone.  If it is not relevant, it is not discoverable.  Period. 

In fairness, that federal judge is not the only one that has muddled up the basic rule on the scope of discovery.  I used to represent a manufacturer as national discovery counsel, and, in that role, I had the opportunity to visit state courts from Alaska to Alabama and New York to California to argue discovery motions.  After a bit, I learned to start every argument with an introduction to Rule 26(b) or its state law equivalent, and, I would say eight times in ten, the judge would reach for his or her rule book when I made the outrageous suggestion that information had to be relevant to be discoverable.  Not, “reasonably calculated to lead to the discovery of relevant evidence.”  That construct is false and the result of faulty memories and years of hearing how liberal discovery is.  Liberal, yes.  Limitless, no.  Relevance is the first and most important limit on discovery, and it is remarkable how many people miss that fact.

So, I am encouraged that, more than once every week, some judge in the federal system is citing Rule 26(g) to hold attorneys accountable for the breadth of their discovery requests and the cogency of their responses.  But don’t forget about good, old Rule 26(b)(1) and that tired old notion of relevancy.   If you can’t explain why it is relevant, then I am not producing it.  (Unless, of course, I happen to be in front of a particular federal judge who will continue to remain nameless.)

Filling Potholes on the E-Discovery Highway 
I drive on two very different roads every morning. Funny thing is that they are both I-64 East. From where I get on to where I-64 East merges with I-95 South, it is immaculate, at least as far as interstates go. The pavement is new and smooth, and the ride is easy. Then I cross under the I-195 overpass and the road changes. Where moments before I was enjoying the bliss of a well-constructed and maintained highway, now I am dodging potholes that seem to propagate madly in the night.  [CONTINUE READING ->]

E-Discovery Technology: Are Humans Still Needed for Document Review?
Since the industrial revolution, people have been saying that technology will fundamentally change our lives. And it has. This morning I woke up to the sound of an alarm clock in a house heated with electricity and drove to work in my car — a drive made easier by bridges, traffic lights and, ultimately, a parking spot in a parking garage deep underground. At one time, each of these things was considered technology.  [CONTINUE READING ->]

eDiscovery Becoming a Solution 
Too often, we lament the seemingly intractable challenges of electronic discovery without taking the time to step back and look at the progress we are making. In December 2006, following the enactment of the electronic discovery rules, I received an email from a litigator asking: “How can I avoid doing eDiscovery?”  He saw eDiscovery as an expensive roadblock to trying cases.  And he was right.  We have struggled with the sword of Damocles hanging overhead facing a choice of…  [CONTINUE READING ->]

It is important that custodian interviews are properly documented for defensibility purposes.  To aid in documentation and to ensure consistency across interviews, our teams often develop an interview form that allows the interviewer to type the answers directly into the document during the interview.

The questions asked during the interview will depend on the facts of each case.  However, here are a few categories of questions you should include on your next custodian interview form: 

Potential Privilege: Being able to identify potentially privileged documents in the data you are collecting gives you valuable information you can pass on to your document review and production team.  Compile the name and email address for each attorney with which the custodian communicated. Use this information to draft a list of search terms to isolate potentially privileged material prior to review and production.  Save time and money by skipping review of these documents by your frontline review team, and instead route these potentially privileged documents directly to your privilege review team.  

Legal Hold Notice: Case law and the Sedona Conference, among others, indicate that the preservation obligation does not stop with a properly drafted and distributed litigation hold notice.  It is important that you follow up with the custodians.  Use the custodian interview to ask whether they received, understand and are following the litigation hold.  A blank stare followed by the question, “litigation, what?” is generally not a good sign.

Scope of Relevant Documents: Develop a checklist that tracks the relationship between each custodian and category of the document requests – so you can see at a glance which custodians have documents responsive to each document category.  This allows you to prioritize documents for production or make exclusion decisions quickly when the theory of the case shifts or issues are dropped.  Tracking this type of information will also help you identify gaps in your collection.  On the flip side, it will also highlight instances where you are collecting the same information from multiple people.  This checklist will help you regardless of how few custodians you have, but it becomes indispensible as your custodian list grows.

Locations of Relevant Documents: In response to our questions regarding the location of documents potentially relevant to the categories discussed above, custodians will often identify just a few locations.  However, if you ask specific questions and look around their office, you may find additional files in other folders on their computer or in binders, boxes and external media on their shelves.  Walk through a list of potential data sources with each custodian to jog their memory.  The list should include:

• corporate email account;
• personal email account;
• corporate computers;
• personal computers;
• network servers;
• databases;
• portable media, e.g. CDs, DVDs, external hard drives;
• social media sites, e.g. Facebook, LinkedIn and Twitter;
• text messages or other information on personal or corporate smartphones that are not synced with a computer;
• audio, e.g. voicemail and Skype (yes, there is data to collect from Skype);
• instant messaging; and
• document management tools, e.g. SharePoint.

Although this blog focuses on eDiscovery issues, remember to ask about paper documents as well.  Paper documents may be in their office, in centralized departmental storage or in off-site archives.

Technical Specifications: For each source of potentially relevant information identified, you should note description information and technical specifications of the storage device on the interview form.  This will streamline document collection and ensure that, if document collection occurs subsequent to the interview, the collection team collects from the correct locations.  It also makes it easier to later audit your collection steps.  Remember that while the custodian may point to a computer and say that everything is on that computer, the trend toward cloud storage makes it increasingly likely that the data is stored in the cloud rather than on the actual machine.

Other Custodians: Ask each custodian if there are others that may have relevant documents – inside or outside the company.  The names you compile will give you early insight into the distribution of relevant documents across your organization in the event your company does not have technology deployed that can provide this type of information.  This list will also help you if you later need to perform additional collections for a particular category of documents.

Probably not.  Certainly you need someone to review a statistical sample of the documents for defensibility purposes.  You probably also want humans to review at least some of the documents for privilege, trade secrets or to categorize documents in preparation for depositions or trial.  Maybe you just want to know what you are producing before your opponent does, after all – the documents may all be relevant but some are more relevant than others.   

Even in the face of advancing technology there are lots of reasons why we need humans to review documents and the bulk of front-line document review is handled by contract attorneys.

Contract attorneys spend many hours reading and categorizing documents.  As I have written on this blog previously, after a week or two of reviewing your companies e-mail and documents, the contract attorney review team will know the overall data set better than most of your employees – and certainly better than the folks litigating the case.

At the start of every project, I tell my document review team that their work is important because their eyes are often the only ones on a document before it goes out the door.  If they miss privilege, confidential trade secrets or other relevant information it could be detrimental to your case or your business. 

To get the most out of your review team, invest in them early in the case.  Give them the background information they need to do quality work.  Use technology to filter out the junk so they are not wasting their time (and your money) looking at a high percentage of irrelevant documents. 

The litigation team’s preparedness for depositions and trial is often a function of the diligence and work ethic of the review team.  If you are a litigator, I highly recommend you spend a few hours in the room with the people who have read the email of the employee whose deposition you will defend.  Try your theory of the case on the review team.  They will likely be able to tell you more in thirty minutes than an associate who pokes through documents between drafting briefs, meetings and telephone calls.

As technology gets better at filtering out the irrelevant documents, the work of contract attorneys will become even more important because they will take on higher level work.  Their role will continue to evolve from simply identifying relevant documents to categorizing, synthesizing and communicating the contents of relevant documents to those litigating the case.

But wait! There, up in the sky! Is it a man? Is it a plane? It’s Big Data! What is it? What does it mean? Put very simply, it means that there is a lot of data out there. More than we ever could have imagined even a few short years ago, and it is expanding at a mind-boggling rate. Here are a few statistics from a McKinsey & Company report:

• You can purchase a hard disk drive for $600 with the capacity to store all of the music in the world.
• The U.S. Library of Congress had 235 terabytes of data as of April, 2011.
• 15 of 17 business sectors in the U.S. have more data stored per company than the entire U.S. Library of Congress.

A few more statistics from IDC:

• In 2011, the amount of information created and replicated world-wide will exceed 1.8 zettabytes. (A zettabyte is 1 billion terabytes – is your mind boggling yet?)
• The volume of data created has more than doubled every two years and the rate is expected to increase.

More accurately, “big data” refers not to the massive volume of data itself, but to the integration and analysis of that data. In other words, organizations are beginning to aggregate and analyze formerly disparate data sets to gain insight into such things as where shoppers in Richmond, Virginia like to eat lunch on Wednesdays, or what is the best route for emergency response units to take to reach an accident at 3:13 p.m. on Friday afternoon in central Phoenix. According to McKinsey & Company, there are over five billion mobile phones in use today. Most of those phones are providing geospatial and other information to their telecommunications providers. Think about the tremendous value to retailers inherent in knowing the location-based patterns of entire populations.

The ramifications of big data are many and complex, including truly important issues such as how to manage data privacy and where to find the technical talent and analytical skills to leverage the wealth of information now being captured from a global community increasingly willing to let others know where they are and what they are doing.

Undoubtedly, some of these issues will be the subject of future blog posts here, but the thing that struck me today what big data means for e-discovery professionals. And that is job security. Because, where there is money, there is litigation and regulation, and there is huge money in big data. And big data means, well, big data – more information to identify, preserve, collect, analyze and produce in discovery and regulatory response. Sure, we’ll try to stay ahead of the curve, leveraging every new technological and business process development to reduce the dollars per document spent on discovery response. But “reduce” is a relative term after all, and, with the digital universe expanding at such an incredible rate, there will be documents aplenty to manage in just about every case, and that means plenty of work for professionals all along the spectrum from information management to trial presentation. So, say “Hello” to your new best friend – big data.

Though self collection continues to be popular as a collection methodology, some argue it is not defensible and that collection should instead be completed using technology solutions that search data at the custodian, department or enterprise level to identify relevant documents. 

My take on this is that there is a time for each methodology and often a case may call for a hybrid approach.  Self collection is defensible in the right case if planned and executed correctly.  There are some types of cases where self collection does not make sense.  For example, if your company is sued because a custodian was sending harassing emails, it may be “grossly negligent” to depend on the employee who allegedly sent the harassing emails to locate, preserve, collect and turn those emails over for review and production.  You may recognize this fact pattern from Jones v. Bremen High School District, 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010).

However, for most commercial litigation, the primary hurdle is developing a defensible plan and executing that plan properly.  This is especially true when a large organization has frequent litigation involving so-called serial custodians. 

I will note that I prefer the term “managed self collection” to “self collection” because the term self collection brings to mind the types of scenarios that have given rise to some of the case law in this area: custodians instructed to preserve and collect relevant documents with little guidance on scope or relevance, inadequate training on the technology and unclear instruction on who to contact if they have questions.  It should not be surprising that under these circumstances custodians may perform a less than reasonable collection.

The structure of a defensible managed self collection protocol will vary with the complexity of the matter.  However, as you develop your plan, consider including the following to bolster defensibility: 

• draft a document outlining the scope of relevance with specific examples tailored to each department so custodians know which documents they should include/exclude from collection;
• develop a checklist outlining the steps (IT process) the custodian should take to identify and collect the relevant documents;
• provide technical training for custodians so they are able to complete the collection steps correctly and without destroying metadata or inadvertently failing to collect documents they intend to collect;
• draft an interview form to gather information from each custodian about their involvement in the matter and the locations of documents in their possession;
• set up a conversation between key custodians and a legal representative to talk through the document outlining scope of relevance, the process of collection and to complete the interview form;
• establish points of contact in IT and legal in the event a custodian has questions about process or substance;
• verify custodians are following the process by sampling results and confirming that if a custodian noted during the interview that they had documents in multiple locations that the custodian actually provided documents from each of these locations.

This is the new e-discovery math: bad acts + bad actors = long opinions. This case is no exception. Although the district court’s opinion adopting the magistrate judge’s recommendation (with one inconsequential request for clarification) is only just over four pages, the magistrate judge had to labor over 20 pages of detail to explain just what the defendants had done and why it was wrong. I am not going to belabor the details here. K&L Gates provides a very good summary. To make it extremely brief, the defendants lied to their own attorney while arranging for a server with admittedly relevant information to be sold to a third party and then shipped to Dubai. Or somethinglike that. I am sure the defendants have a different story. What really interested me was not the bad acts. There are plenty of those to go around. Just check any e-discovery blog. What really interested me was this quote by the magistrate judge:

This article won the LitigationWorld Pick of the Week.  

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 Of the concepts guaranteed to glaze the eyes of the most attentive, “data processing” is certainly near the top of the list.  Even attorneys that managed to stay awake through such law school gems as Secured Transactions and Estate Planning may struggle with data processing.  Part of the problem is, at first blush, data processing appears more technical than legal. 

The prevalence of this myth is unfortunate and the risks to attorneys that subscribe to it are substantial.  This blog post is not intended to be a deep dive into the world of data processing; including the issue of whether all data processing tools are created equal (they are not).  More on that topic in a future article perhaps.

Regardless of which data processing tool you choose to use, there are a few concepts you should understand prior to giving your vendor or outside law firm the go-ahead to begin processing your data.  This is clearly not an exhaustive list, but it will get you started:

•   Hidden Content  

Several applications, notably Microsoft Office applications, allow the user to hide content, including rows, columns and worksheets in Excel, slides in PowerPoint and track changes content in Word. At a minimum you will want the processing engine to flag documents with hidden content so you have the option of digging deeper into those documents prior to production. You may also want to “force” hidden content to be visible (at least while you are reviewing documents) to save you the time and cost of manually going through the mouse clicks required to make visible each piece of hidden content.

Often the most confidential or privileged information in a document is located in hidden content. The classic example is the attorney that uses track changes to comment on a draft document. If the track changes view is turned off at the time of collection, the person reviewing the document for relevance may not notice the hidden privileged material. The document is produced and the receiving party need only turn on track changes to view the attorney’s comments.

•   Exceptions Reporting

So how do attorneys get into trouble here? They assume:

1) we collected everything the employee had;
2) we sent it to the vendor;
3) we reviewed everything the vendor loaded and produced the relevant non-privileged material;
4) therefore we have produced everything that is relevant.

Right? Maybe.

Some of the documents you collect and give to your vendor to load into the review tool will not ultimately make it into the tool. There are several reasons for this, including limitations of the processing or review tools, uncommon file types and corrupted files. Your vendor should be listing files that do not make it into the review tool on an exceptions report and talking through it with you. It is important that someone on your team is reviewing the exceptions report to determine what errors are occurring and determining whether these files are relevant to your litigation and need to be produced.

For obvious reasons, it would be less than ideal for your vendor to ask you after the close of discovery, “So how would you like us to handle all these files we could not process and load for you to review?”

•   Embedded Objects

Many applications permit the user to embed data in a file. Examples of embedded content include; attachments embedded in the body of an email and an Excel spreadsheet embedded into a PowerPoint. You may choose to flag documents with embedded objects for a later review or choose to extract these embedded objects and attach them to the original “parent” document as attachments. A word of caution if you go with the latter option, you may end up with dozens of “junk” attachments if your data set has a high population of embedded images, e.g. images systemically embedded in the signature block of an email.

It is easy to embed thousands of pages of financial data into a single PowerPoint presentation – though only one page of that spreadsheet may be visible to the person looking at the slide on the screen. If not treated properly, embedded content has the potential to inadvertently relay privileged or confidential information to the receiving party.

•   De-Duplication

It is likely your data set contains duplicate documents.  You may want to reduce your data volume by de-duplicating (keeping only one copy of each document).  De-duplicating will save you from looking at the same document multiple times as you review documents in preparation for production or depositions.  If you opt to de-duplicate, consider adding a field that identifies custodians that have duplicate documents that were removed during de-duplication.  You may also want to repopulate these duplicates at the time of production so they are included in your production.  This is important when you need to know who else may have had a copy of a document, e.g. when preparing for depositions. 

Simply put, it is expensive to look at the same document multiple times.  However, you should alert the opposing party if you are de-duplicating for review and not re-populating at the time of production.  

•   Parent-Child

Does your processing tool maintain family relationships, i.e. retain the connection between an attachment and the cover document?  Sometimes the content of an attachment is less important than the context in which it was emailed from one person to another.

 Producing documents without maintaining family relationships is sometimes called “fifty-two card pickup” — for obvious reasons.  You can appreciate why your opponent may cry foul when you produce email and attachments separately without a way to marry them up. 

•   Z-Printing

Look at your data set and if you need to review Excel spreadsheets in image format, perhaps because you need to make manual redactions and do not have access to a native redaction tool, determine whether it is helpful to image the spreadsheets in a “z” pattern.  Z-pattern printing means the vendor images the spreadsheet from left to right, first capturing all of the columns associated with a given set of rows, then moving on to the second set of rows.  Spreadsheets are nearly always wider than one page so if you image in a “z” pattern it is faster (and thus cheaper) to review and redact from left to right. 

Anecdotally, I would estimate spreadsheets in nine out of ten data sets would be easier to review and redact in Z-printing format.  If you get this one wrong, the person drawing redactions will appreciate it all weekend long…

In summary, data processing is a legal issue and not solely a technical one.  As an attorney, if you blindly delegate these data processing decisions to your technical staff or vendor you may later wish you had done your homework first.