by By Andre Guilbeau and Christopher H. Dodd
Don’t Get So Close to the Data that You Obscure the View
Don’t get too close to the elephant
Understanding electronic discovery, or e-Discovery, is a lot like three men with bad eyesight trying to describe an elephant by touch. Feeling the trunk, the first man thinks the animal is long, narrow and flexible. Another touches the foot and insists that it is hard and squat. The third man checks out the ear and is convinced the animal is floppy and wide, much like a sail. If any of the three had been able to step back to examine the whole rather than its parts, their perspective would be much different.
Often, law firms, corporate legal departments and other data auditors get too close to their data and could be overwhelmed by the sheer volume of data and the strict regulations and guidelines surrounding collection, preservation and the discovery process.
Paper-based discovery processes, such as bulk printing, mark ups, and circulating documents for review are almost gone from use. However, the explosion of electronic data volume to be reviewed – in less and less time – has driven law firms and enterprises to acquire e-Discovery tools that may not be adequate to meet the requirements of their cases.
Many of these tools can handle low volume e-Discovery projects, but they cannot handle obscure or cryptic data types, overly complex searches, multi-level sub categorization, or provide robust quality control. Additionally, are the resources available to accurately and quickly review, analyze and produce the necessary data? This is where getting too close to the data can create myopic errors.
Today the Courts have no tolerance for delays due to e-Discovery impropriety. A 2004 case filed in the State of Florida, Omega Patents v. Fortin Auto Radio, found both the plaintiff and the judge unhappy with the defendant’s volume of e-Discovery production. The defendant originally produced only a few documents and just five emails from a universe of tens of thousands. When pushed, the defendant searched for and reviewed more than 17,000 emails, producing 2,000 for plaintiff review. When the defendant filed a complaint following the search, the Court ruled that they had not proved the undue burden and expense of the subsequent search and issued a monetary sanction against the defendant.
Without the proper infrastructure, expertise and tools, e-Discovery can be time-consuming and costly. Mistakes in the processing can cause unacceptable delays; and cost millions in fines and sanctions.
Kiersted / Systems, ranked in the top 5 e-Discovery firms for experience in the 2007 and 2008 Socha-Gelbmann Study, uses its 25 years of expertise in discovery and litigation support to examine the e-Discovery workflow from beginning to end in this white paper. Attorneys and litigation support teams will gain a clearer understanding of:
- Data Collection: No data left behind
- Review Strategy: Develop and follow a clear review strategy
- Outsourcing e-Discovery: The benefits of and finding the right e-Discovery provider
Data Collection: No data left behind
When a request for e-Discovery is made, it is imperative to collect the data as quickly as possible to ensure data integrity and to avoid deletion of critically important data. With the explosion of data within businesses today, the volume of requested discovery data can become unreasonably large. It is within the Courts’ power to specify the limits of discovery.
In 2006, the U.S. Supreme Court’s amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails, text messages and instant message (IM) chats as likely records to be archived and produced when relevant. The rapid adoption of instant messaging as a business communications medium during the period has made IM as ubiquitous in the workplace as email; and created the need for new guidelines for retention.
Collect everything, as quickly as possible
The urgency of litigation generally requires that electronic information be collected as quickly and comprehensively as possible, while maintaining its content integrity and preserving its form.
The Electronic Discovery Reference Model (Figure 1) demonstrates the clear workflow of an e-Discovery process. Having all data at the start of e-Discovery speeds and improves the accuracy of the overall processing. It’s much easier to cull the entire data universe one time than to go back and attempt to collect relevant but missed data as time passes.
The Court can limit the number of depositions, interrogatories, and documents requested if it determines that the discovery sought is overly burdensome, redundant, unnecessary, or disproportionately difficult to produce with respect to the importance of the case or specific issue. Additionally, the work-product doctrinei protects tangible (and some intangible) items created in anticipation of the litigation, such as a memorandum from an attorney outlining his strategy in the case.
Increasingly, metadata (data about the data) must be collected and maintained during this process. Also, today it is expected that the information will be producible in its native file format whenever possible. The process of collecting electronic information will generally provide feedback to the identification function which may impact and expand identified content.
Data collection done by internal IT staff or corporate counsel can be called into question as incomplete or having a conflict of interest, resulting in fines, sanctions or case loss. This, again, goes back to being too close to the data to maintain an objective view.
Document the full chain of custody from start to finish
Another Kiersted /Systems white paper, Take off the Blinders: Don’t Let Secret Data Destroy Your Business dealt with digital forensics. That paper discussed how a forensically sound collection requires complete and detailed documentation each time a device changes hands during the collection. Documentation should include, at a minimum, the make, model, serial number of each storage drive; photographs of each drive; and MD5 or SHA hash value of the drives acquired to ensure integrity of the data. The make, model and serial number of the case of each computer should also be recorded along with any labels or company-assigned identifiers on the case.
Identify all corporate and employee data sources
Before analyzing if and how data should be preserved, collected and reviewed, the locations of all potentially discoverable data must be identified. Discoverable data sources can include office computers; home computers; document management systems; fax, email and file servers; PDA’s; smart phones, and archives.
Data collections often begin with key players and key business information systems because they typically are at the center of a disputed transaction or matter and often retain the majority of information relevant to the dispute. Quick collection of this data enables legal counsel to access and understand samples, such as select emails and reports, which help them define the legal and factual issues which drive further identification and discovery. Failure to preserve key player and key system data also poses the greatest risk of penalties.
Another important potential collection source is a message archive system. With electronic message archiving in place for both email and IM it becomes a fairly simple task to retrieve any email or IM chat that might be used in e-Discovery. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.
Modern message archival systems allow legal and technology professionals to store and retrieve electronic messages efficiently and in a timely manner.
Review Strategy: Develop and follow a clear review strategy
Most companies are taking greater control of their review strategies, with corporate counsel managing the review process, often with outside counsel contracting an e-Discovery provider to handle the data collection, processing and review management.
Like any business process, optimization of the e-Discovery process and the resulting cost and risk reduction improves over time due to the team’s experience. Start by trcking each and every matter using a consistent and rich set of metrics. This enables your team to develop knowledge and experience that can be applied in future matters of any size or scope. Over time, you will be able to more accurately gauge projected costs and timelines for all of your matters that involve e-Discovery and document review.
Defining the right review strategy
The goal of a clear review strategy is to set goals and benchmarks that will keep the process on track and on budget. Typical elements to identify within a review strategy include;
Generally the review strategy is developed either by corporate or outside counsel. Only by establishing a clear, measurable strategy that incorporates data collection, e-Discovery processing and review, can a defensible outcome be ensured. The review strategy identifies:
- Identify the data sources to be analyzed.
- Define the appropriate culling mechanisms to winnow down the data universe accurately and efficiently.
- Map out a comprehensive review workflow.
- Identify who will be responsible for reviewing data at what point.
- Select an appropriate review tool and platform.
- Determine how review completion will be measured.
In our experience, the best review processes include a dedicated review model that is managed by corporate counsel or outside counsel working with a contracted legal review team.
Cull the data universe with an e-Discovery tool or provider
The large quantities of electronically stored information (ESI) must be reduced in size prior to attorney review to make economic sense within the e-Discovery process. Reviewing all of the ESI to respond to discovery requests is almost impossible and not feasible. The time and expense involved would far outweigh the value of the large majority of cases.
One of the primary reasons for “processing” data in an e-Discovery project is to make a reasonable selection that should be moved forward into an attorney review stage. Once data has gone through “preparation” there are a number of techniques for selecting the items to move forward, and identifying those to leave behind.
- De-duplication and some forms of near de-duplication can suppress redundant data from being reviewed multiple times.
- Validated search terms, as well as simple date range culling, can be applied to find certain items for review while leaving others behind.
- Concept extraction and other forms of document similarity identification can be used to classify items that should be moved forward into review.
A wide variety of e-Discovery tools are available to meet a variety of needs. It is important to match the tool to the requirements of your discovery requirement. To determine the tool best suited for your process, ask several questions:
- Can the tool map and mimic whatever your review system requires?
- Will the tool handle multiple passes, granular categorization, stringent quality control of coding validation, and high volume linear review processes?
- Is your e-Discovery requirement relatively simple? Then an off-the-shelf tool that can handle 80 percent of your discovery will likely suffice.
However, if you cannot risk your case on inadequate e-Discovery, than you should consider outsourcing to a proven e-Discovery provider. Even with an outsourced provider, it is imperative to remember never to assume that any cull is correct without a thorough review.
Outsourcing e-Discovery: Benefits of and finding the right provider
Most large law firms and corporations have some capacity for in-house e-Discovery. As discussed earlier, in a large, complex case, the data volume can quickly overwhelm their available resources. The result can be costly if fines, sanctions or case losses occur.
When e-Discovery is not the core business, the cost of trying to keep up with the latest e-Discovery technology, hosting capacity for processing and reviews and the manpower required becomes even more prohibitive.
Specialized e-Discovery firms are geared to the discovery process. Relied on by their clients to do the heavy lifting, the top e-Discovery providers are staffed with experienced professionals who can participate in the development of a review strategy and manage large volumes of data under tight deadlines. They have the latest technologies to keep up with the most recent data innovations.
By outsourcing e-Discovery, both corporate and outside counsel gain the resources to ensure objective searches, efficient and timely production, and manageable reviews. Most importantly, they can avoid the myopic views of the data that can result in fines or sanctions by the Court.
Secret to finding the right e-Discovery provider
Finding the right e-Discovery provider can be a challenge, especially if you have a Court-ordered, large volume discovery to deliver. There are many great firms with exceptional tools. In the end, selection of an e-Discovery provider depends on the following factors:
- Are they flexible enough to adapt to your review processes? Time is of the essence during discovery and there’s rarely time to learn a new process. When the e-Discovery provider can fit seamlessly into your world, the result is efficiency, cost control and reliability of data.
- Do they have the capability to handle all data types? When your e-Discovery will include Lotus Notes, voice mails, GroupWise, SharePoint, Microsoft Office or any number of other data types, the e-Discovery provider must have the capacity to process all with reliability and efficiency.
- Can they incorporate a variety of searches – Boolean keyword, document grouping, conceptual? Flexible and accurate e-Discovery can require use of multiple search types. The provider you select must be able to integrate your selected search types into the review strategy.
- Do they have a track record for error-free delivery? Your case can and will depend on the accuracy of the discovery produced for review in a timely and reliable manner. Check the references of the provider you are considering. Know their track record, especially for working under tight deadlines on highly complex projects.
The bottom line on selecting an e-Discovery firm is to know that the provider you select has the flexibility to work within your review system and processes, and the experience and skill to deliver reliably under fire.
In Summary
Electronic discovery is not a commodity product that can be provided with some software and a few computers. Be mindful of companies who have recently jumped on the e-Discovery bandwagon. And, off-the-shelf software packages may be able to handle small e-Discovery needs, but they can quickly become inefficient when large-scale discovery matters arise.
Electronic discovery is a complex yet necessary process which represents the very core and foundation of your case. If employed correctly, it can be a powerful tool to give your team and clients a competitive advantage in all aspects of litigation.
Kiersted Systems: The best kept secret in e-Discovery
There is no secret in Kiersted / Systems’ record of performance. For 25 years, Kiersted / Systems have been on the cutting edge of litigation technology, from multi-billion dollar insurance litigation to international mergers. Major legal firms and large enterprises across the U.S. have relied on Kiersted / Systems for personalized data collection and processing.
Recently, a Fortune 100 company engaged Kiersted / Systems to collect 115,000 e-mails totaling more than 400,000 pages. Using Kiersted / Systems’ proprietary software and technologies, key word and key phrase searches were run on the unique e-mails and attachments to help identify potentially responsive and privileged material.
In just days, the database of 115,000 e-mails became a more manageable 37,000 count. A team of several attorneys in multiple locations then used Kiersted’s KEPS Review System to find, identify and cull out non-responsive files. Images and critical metadata were supplied to the client for loading into their document management system. Besides holding costs down, the proper application of technology to the discovery process assured the legal team of thorough and complete document review and production.
From e-Discovery to forensics collections, law firms face the kind of legal technology challenges that demand proven expertise. Kiersted / Systems solves your firm’s legal technology challenges so you can spend more time meeting your clients’ legal needs.
*”Work product”. Black’s Law Dictionary. p. 1298.
