Lexbe eDiscovery Webinar- Opposing Perspectives in Document Review

Opposing Perspectives in Document Review
Gene Albert
Lexbe LC
May 21, 2015
Contrasting Plaintiff & Defendant eDiscovery Priorities

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Opposing Perspectives in Document Review | eDiscovery Webinar Series | May 21, 2015

Lexbe is an Austin, TX based eDiscovery software and services provider.
○ Lexbe eDiscovery Platform
Lexbe eDiscovery Platform is a fully-features eDiscovery processing and review
tool. Users can load a variety of file types, process for review, OCR for search, and
conduct document reviews, productions, prepare for depos & analyze transcripts,
conduct case analytics, prepare for dispositive motions, and provide litigation
support during trial.
○ Lexbe eDiscovery Services
Lexbe does large volume document culling, processing from native to PDF or TIFF,
high-volume OCR of image files, Rule 26 and project management consulting, and
related eDiscovery Services.
About Lexbe
Lexbe Sales
sales@lexbe.com
(800) 401-7809 x22
Lexbe is recognized as a 'Top 100' eDiscovery Provider by ComplexDiscovery, a leading electronic
discovery and information governance firm.
‘Lexbe cost advantages, SaaS convenience and search capabilities appeal to many small firms. . . to
handle large amounts of data – without investing in an IT infrastructure.’ 451 Research
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Forrester Research

If you have any questions or technical issues, please e-mail them to:
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Questions & Technical Issues

○ CEO of Lexbe LC, a provider of cloud-based litigation processing,
review and document management software & eDiscovery services
○ Frequent speaker/author on eDiscovery and legal technology issues
○ Planning Committee, Electronic Discovery Institute, State Bar of
Texas
○ eDiscovery consultant & expert
○ Education
MBA, University of Texas (2005)
JD, Southern Methodist University (1983)
BA, University of Texas (1979) Gene Albert
512-686-3460
gene@lexbe.com
https://www.linkedin.com/pub/gene-albert/0/88/ba1
Gene Albert Bio

● Is Discovery Different for Plaintiffs and Defendants?
○ Asynchronous eDiscovery
○ Differing Resources
○ Contingency Arrangements
● Examining Plaintiff and Defendant Discovery Concerns
● Top Takeaways for Plaintiffs and Defendants
Agenda

Defendant's View of Plaintiff’s
Production Request
Asynchronous Discovery
Defendant's View of
Plaintiff’s Production
1 GB = 50,000 pages = 14 Bankers Boxes
1 TB = 50 Million pages = 14,000 Bankers Boxes

Differing Resources
● Defendants are often the larger organization, with greater
financial, institutional, and facility resources.
● In eDiscovery, this manifests itself as larger, ongoing internal IT
departments and litigation support staff, or greater resources to
hire vendors.
● Due to the nature of plaintiff work, it is difficult for these firms -
and uneconomical - to match the internal IT/litigation support
resources of defendants
● This creates a fundamental difference in how the two sides
approach the discovery lifecycle.

Contingency Relationship
● Plaintiffs frequently work under a contingency arrangement with
their clients.
● This increases the overall risk of any large case expenditure and
complicates the plaintiffs ability to value their case heading
towards trial.
● Discovery expenses often involve significant front-end outlays,
which - by themselves - can motivate a plaintiff to settle or drop an
otherwise strong case.
● Whereas defendants usually bill hourly, and are often paid
independent of case outcomes, contingency plaintiffs may only
collect after a successful case outcome.

Plaintiff’s Complaints about Productions
● Important ESI sources were missed or hidden.
● Culling and responsive searches were awful and missed clearly
responsive documents.
● Important documents emerged only after depositions.
● Defendant produced a document dump of largely irrelevant ESI.
● Defendant used insane eDiscovery vendor estimates to justify
proportionality claims.
● No understanding of forms of production and production problems.
Defendant's production was junk.
From Craig Ball, Is There a Right to Fail in E-Discovery?
https://ballinyourcourt.wordpress.com/

Defendant’s Answer
● Plaintiff’s vague and overbroad requests was nothing more than a
fishing expedition.
● Defendant spent a fortune collecting and producing ESI.
● Because Plaintiff’s fishing expedition failed, Plaintiff seeks to make
the case about discovery.
● Because Plaintiff’s fishing expedition failed, Plaintiff is trying to
question Defendant’s competency in collecting and producing ESI.
● Plaintiff needs to show proof of inadequacy of production, not
guesses and unsubstantiated allegations.
Where’s the proof of inadequacy and failure produce?
From Craig Ball, Is There a Right to Fail in E-Discovery?
https://ballinyourcourt.wordpress.com/

Relative eDiscovery Concerns
Plaintiffs Defendants
Planning Medium Medium
Document Collection Low High
Early Case Evaluation/Valuation High Medium
Resp/Priv Review & Production Low High
Ingesting Opposing Production High Low
Evaluation of Received Production High Low
Search Quality and Speed High Medium
Fact/Timelining/Depo Capacities High Medium
Trial Support Medium Medium
Collaborative Capabilities Medium Medium
Expert/IT Assistance Medium Low
Cost Controls High Medium

Planning
● Defendants and plaintiffs both benefit from early stage planning in
both discovery and their case as a whole.
● Plaintiffs need to identify as many relevant custodians and ESI
sources as possible to prepare for the construction of ESI orders at
Rule 26 and other discovery conferences.
● Defendants should anticipate potential custodians and ESI sources
and develop integrated collection and review strategies.

Planning

Document Collection
● Asynchronous discovery is most evident in the area of document
collection.
● Plaintiffs may have a fraction of the collection obligations of
defendants and so document collection is not as large a concern.
● Defendants’ collections are usually a much larger concern and
expenditure. Failing to defensibly hold, collect, review, and
produce responsive documents to plaintiffs in a timely manner
result in severe negative ramifications and sanctions.

Early Case Evaluation
● Before a production has been received from opposing counsel, but
after ESI orders have been developed, there is an opportunity for both
sides to evaluate evidence to date and the relative strengths of their
cases.
● For Defendants, this may be less critical to do early and less significant
because they are in a defensive position and often cannot end or settle
the case without engaging in at least some discovery to determine the
validity of the Plaintiffs claims. Defendant’s main priorities in early case
evaluation are to begin identifying key case facts and ensuring
collection procedures comprehensively capture key documents.
● Plaintiffs focus on early case evaluation because it significantly
influences risk analysis and the decision to proceed with the case or
seek early settlement or even abandon prosecution. Assessing the
value of their case is a constant task for Plaintiffs and the time
preceding receipt of an opposing production is a good opportunity to
evaluate custodians and preliminary case facts.

Early Case Evaluation
● Plaintiffs can evaluate their case early on by
researching preliminary case facts and issues as well
as determining key case participants/custodians.

Responsive/Privilege Review & Production
● Reviewing documents for responsiveness and privileged/work product
content is often the most resource intensive task in litigation and is
another example of asynchronous discovery requirements.
● Plaintiffs have a significantly reduced document collection
responsibility and therefore responsive/privilege reviews and
productions are often relatively simple.
● Defendants’ discovery revolves around responsive/privilege review and
production and so significant time and resources are invested in the
appropriate people, technology, and processes to meet obligations.
● Defendants can approach responsive/privilege review with multiple
methodologies, including linear, keyword, and technology assisted
reviews (e.g., predictive coding), neardup identification, and can choose
to internally staff or rely on outside contract reviewers or managed
review companies to complete.

Responsive/Privilege Review & Production

Ingesting Opposing Production
● Due to the asynchronous nature of eDiscovery, issues with ingesting
productions is an issue faced primarily by Plaintiffs.
● The main concern of plaintiffs is being able to quickly upload a large
production that could be in a number of different formats into a
document management system so that Plaintiff review teams can begin
searching for key documents and evidence.
● Plaintiffs may also receive iterative, relatively small collections over a
period of time and need to have methodologies and tools that reduce or
eliminate inefficient batching and allow for efficient integration.
● Plaintiffs may need to process a received production to make them
systematically reviewable.

Ingesting Opposing Production
○ Iteratively received
productions can be coded and
organized by custodian and
document source.
○ Upload and process received
productions in a variety of formats

Evaluation of Received Production
● Both Plaintiffs and Defendants need to evaluate any new documents
with respect to their existing case. However, this issue primarily
concerns Plaintiffs.
● Receiving parties need to build an accurate understanding of the size
and content of a received production to deploy the appropriate review
resources.
● Parties benefit from being able to identify potential underdelivery or
specifically requested documents that are not included in the
production using automated tools.

Evaluation of Received Production
● Identify potential holes in received
productions.

Search Quality & Speed
● Search speed and quality is important to any party that needs to find
specific content within a large collection of documents.
● Though search may be fast, the underlying indexing method will
determine if results are comprehensive. Incomplete search results
means that important case data cannot be practically found - a major
obstacle if dealing with any significant amount of ESI.
● Parties need be confident that their review tool search indices are
comprehensive, or else miss finding the “smoking guns” in their case.

Search Quality & Speed
Index Method
Captures
Embedded
Text
Captures
Text
Excluded
From Print
Captures
Hidden Text
Imaged/OCR Yes No No
Native Extraction No Yes Yes
Lexbe Dual Index Yes Yes Yes
● Dual Search Index ensures that all of the contents of
a document are searchable and viewable

Fact/Timelining/Depo Capacities
● Both sides use fact & issue timelines to create textual and visual
chronologies of their case and prepare for depositions and motion
practice.
● By starting to develop fact & issue timelines early on in the case and
iteratively developing as documents are reviewed and insights gained,
parties can maintain an accurate understanding of the value of their
case.
● When approaching depositions, parties need to know which documents
relate to potentially negative case facts so they can preempt opposing
depo strategies.

Dynamic Fact/Timelining Capacities
● Both parties benefit from being
able to link specific documents
to particular case facts & issues.
● Annotation capabilities let you
create a separate version of key
documents with alerts to
particular lines, sections,
quotes, etc.

Trial Support
● Parties need to maintain searchable access to case documents that
may be brought up by opposing counsel during trial.
● Both Plaintiffs and Defendants benefit from tools that allow rapid
timeline updating based on live case testimony.
● A best practice for either side is prioritizing accessibility to case data
and documents throughout the trial and appeal process.

Collaborative Capabilities
● Both Plaintiffs and Defendants need to work closely with in-house
counsel, co-counsel from different firms, experts, and others.
● Legal document management systems that are simultaneously secure
against unauthorized access, yet are accessible to authorized users
remotely, support effective collaboration.
● Local discovery solutions (e.g., ‘single-computer’ or ‘behind the
firewall’) can cause collaborative bottlenecks and headaches when
non-local members of the litigation team are unable to reliably access
the review environment.

Expert/IT Assistance
● Both Plaintiffs and Defendants need access to knowledgeable IT
experts. Important for collection strategies, data mapping, Rule 26,
ESI orders, production evaluation and ongoing on-call assistance.
● Defendant counsel often can (and needs to) work closely the internal
IT staff of the organization. Greater resources may also mean greater
access to outside eDiscovery vendors for assistance.
● Plaintiff counsel also needs access to IT and eDiscovery experts, but
often must go to vendors as the Plaintiff itself may not have that
expertise.

Cost Controls
● Both parties prioritize reducing costs and maximizing the efficiency of
available resources.
● A common defense strategy is to attempt to force Plaintiffs to expend
their available resources early in the case. Discovery is a good
opportunity to attempt.
● Plaintiffs are constantly evaluating the value of their case with respect
to available resources and so controlling costs can determine the
viability of a case.
● Defendants can typically afford to operate ongoing IT resources
because their budgets are somewhat independent of case outcomes.
● Plaintiff firms’ revenues are often entirely dependent on case
outcomes. Plaintiffs need to know when their case is out of reach so
they can minimize financial loss.

Plaintiff Attorney Top Discovery Tips
● Quickly get preservation letter out to Defendants.
● Be careful to understand ESI Agreement commitments/limitations, and
don’t agree to limitations when more is needed. Don’t accept PDF or
TIFF alone in a production, if need native data/metadata.
● Understand and participate in defense counsel’s review and production
methodology. Understand defense’s data maps and systems.
● Quickly analyze incoming productions for adequacy and document data
holes to resolve as soon as possible.
● With large incoming productions, determine what review/coding
methodology will be used for the case. Linear review of every
document may not be possible in large document cases.
● Have IT/Lit Supports experts available as needed for strategy, review
of ESI commitments and orders and to assist in assessing production
adequacy.

Defense Attorney Top Discovery Tips
● Map Custodians and ESI early and determine case strategy taking ESI
collection, processing, review and production into account. Quantify
discoverable ESI as early as possible as this will drive review and
production timelines and budget.
● Tie down discovery obligations in an ESI order. Involve organization’s
IT dept early and have available for Rule 26 conferences, etc.
● Document and disclose activities in eDiscovery to show transparency
and reasonableness of methodology and to defend proportionality.
● Customize review methodology by case and need. It’s not ‘one size fits
all’. Make use when appropriate of modern technology in document
review, including keyword enhancements, near-duplicate groupings,
and technology assisted review (e.g., predictive coding’).
● Build in time for adequate privilege review. Use modern tools to make
for more effective privilege review (e.g., neardup groupings, enhanced
search, dual indexing).

Summary
● Discovery is fundamentally different for Plaintiffs and
Defendants for three main reasons:
○ Asynchronous eDiscovery
○ Differing Resources
○ Contingency Relationship
● Through each case stage, Defendants and Plaintiffs have
different priorities based on the nature of lawsuits and
availability of resources.
● Specialized eDiscovery tools and methodologies that take
these differences into account are available, but Defendants
and Plaintiffs value different features.

Thank You
Contact Info
Gene Albert: gene@lexbe.com
(512) 686-3382
Stu Van Dusen: svandusen@lexbe.com
(512) 843-7672
Webinar Questions: webinars@lexbe.com

Lexbe eDiscovery Webinar- Opposing Perspectives in Document Review

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