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Defining a Legal Strategy ... The Value in Early Case Assessment

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Early Case Assessment provides the framework for litigators to identify and analyze electronically stored information in response to a litigation hold and.or discovery request.

Early Case Assessment provides the framework for litigators to identify and analyze electronically stored information in response to a litigation hold and.or discovery request.

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  • 1. The Bar Association of the City of Richmond Continuing Legal Education Seminars 2009 – 2010 “E-Discovery for Small and Mid-Sized Firms” Defining a Legal Strategy …. The Value in Early Case Assessment Presented by Aubrey L. Owens, Jr. Superior Document Services October 14, 2009
  • 2. Table of Contents Overview: What is Early Case Assessment? Page 1 Identification of Evidence Page 2 Custodian Interviews Page 2 Data Mapping and eScoping Page 3 Preservation and Collection of Evidence Page 4 Forensic Preservation and Collection Page 4 Active Preservation and Collection Page 5 Network Appliance Preservation and Collection Page 5 Search and Analysis of Evidence Page 6 De-duplication Page 6 Proximity Filters Page 6 Keyword Generation and Analysis Page 7 Review of Evidence Page 8 Relevance Review Page 8 Substantive Review Page 10 Production of Evidence Page 11 Native Production Page 11 Image Production Page11 Metadata Page 12 Conclusion Page 13
  • 3. Overview: What is Early Case Assessment? According to a 2005 Gartner report, 75 percent of global companies will be involved in a legal or regulatory action that requires a systematic approach to legal discovery in the next year. Through 2010, companies without formal e-discovery processes will spend nearly twice as much on gathering and producing documents as they will on legal services. 1 Early case assessment includes the ability to identify the facts of the case through analysis of the custodians, concept and thread analysis of emails and data sampling other electronic data to determine the best case strategy. This should be done in order to better prepare the client for potential expenses that will arise should litigation be propounded. What is the benefit in propounding litigation when the case is worth $1M and it requires spending $150K just to process data for review (not including attorney fees)? 2 The December 2006 Amended Federal Rules of Civil Procedure provide the framework for litigants to meet and confer with their clients and opposing counsel in an effort to clearly identify the scope of the litigation. Digital (electronic) record keeping is common place in the majority of companies, a result of the explosion of email communications, as well as the ease of creating, sharing and storing pertinent business documents in an electronic format. The task of the litigant is not to produce everything, but to make a defensible production by narrowing the scope of what is relevant. 1 Kroll On Track Discovery- (2006) PRACTICE POINTS: TEN STEPS FOR EARLY E-DISCOVERY CASE ASSESSMENT 2 Managing the Litigation Lifecycle – Owens, A. (2008) Early Case Assessment All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 1
  • 4. Identification of Electronic Evidence “... Understand your client’s technology. A solid case assessment involves thoroughly understanding your client’s information as it relates to the scope of the opposing party’s discovery requests. Assessing your client’s data will involve taking an inventory of key custodians and determining your client’s relevant hardware, document types (e.g., e-mail, database files, word processing documents, etc.), operating system and software packages (current and archived), employee computer use policies, and data storage/retention policies”3 Custodian Interviews Early in the process, the Legal and IT teams gather information to identify the potential custodians and sources of information potentially responsive to the scope of discovery. The custodian interview process is the first step to uncovering “who, where, when and how data lives” throughout the enterprise. Legal Counsel will interview each custodian with a series of questions designed to make a defensible claim to FRCP Rule 26(a)(1)(B), involving the Duty of Disclosure. Information gathered during each interview process will be pertinent to developing the case strategy while mitigating risk. 3 Kroll On Track Discovery – (2006) PRACTICE POINTS: TEN STEPS FOR EARLY E-DISCOVERY CASE ASSESSMENT All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 2
  • 5. Data Mapping & eScoping For Corporate legal departments, the struggle to stay on top of litigation in 2009 will get worse before it gets better. It's enough to make many wish they had a field guide to find their way through the forest of lawsuits. Fortunately, there are ways that in-house counsel can proactively prepare for litigation and regulatory and compliance issues, easing the burden of discovery, while increasing the defensibility of their processes and procedures. Developing a data map of an organization's information flow is one important step. 4 A well constructed data map tells where information is stored throughout the enterprise, as well as the technology used in the normal course of business. When used properly, the legal and IT teams have the ability to target specific areas of information that are well known to be responsive to the scope of the discovery request. This process is known as eScoping. eScoping early in the process provides the legal team with information-specific areas that are obviously responsive, privileged, or irrelevant to the discovery request. In some instances, eScoping will reduce the amount of information required for preservation, based on the collection method. Additionally, eScoping provides a foundation for identifying keywords and other potential custodians. AccessData FTK® Imager Lite www.accessdata.com Pinpoint Laboratories SafeCopy® www.pinpointlabs.com 4 Law.com (Corporate Counsel) – Tarr, B. (2009) - Finding Your Way Through Discovery by Data Mapping All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 3
  • 6. Preservation and Collection of Evidence “The reality of electronic discovery is it starts off as the responsibility of those who don’t understand the technology and ends up as the responsibility of those who don’t understand the law.” Forensic Preservation and Collection Computer forensics is the name of the science of resurrecting deleted data. Because operating systems turn a blind eye to deleted data (or at least that which has gone beyond the realm of the Recycle Bin), a copy of a drive made by ordinary processes won’t retrieve the sources of deleted data. Computer forensic scientists use specialized tools and techniques to copy every sector on a drive, including those holding deleted information. When the stream of data containing each bit on the media (the “bitstream”) is duplicated to another drive, the resulting forensically qualified duplicate is called a “clone.” When the bitstream is stored in files, it is called a “drive image.” Computer forensic tools analyze and extract data from both clones and images. Guidance EnCase® www.guidancesoftware.com AccessData FTK® www.accessdata.com Paraben® P2 Commander www.paraben.com All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 4
  • 7. Active Preservation and Collection Specific sources of targeted directories and files are captured in a non-forensic method. Active collections are the fastest way to get a snap shot of files deemed definitely responsive and/or privilege in regards to the scope of discovery. Most active collections are not defensible, unless the parties have previously agreed and had this approved by the courts. Active collections have several risk factors. These include spoliation of metadata and defensibility of authenticity. AccessData FTK® Imager Lite www.accessdata.com Pinpoint Laboratories SafeCopy® www.pinpointlabs.com Network Appliance Preservation and Collection The ability to conduct investigations across domains provides a unique advantage in seeking out potentially relevant electronically stored information. Larger corporations benefit from the process of implementing this form of data crawling. The benefits of such a solution assist in day-forward preservation of information in response to legal investigations. Data crawling network appliances are installed within the corporate firewall and are administered through a collaboration of the internal IT department and the in-house counsel. Based on specific terms and other information provided, the appliance will constantly seek information across the entire enterprise, identifying any electronically stored information meeting the specified criteria while making a preserved copy of the data in a "legal hold” folder for review by the legal team. The appliances have features that allow the sending of legal hold notifications, managing the discovery calendars, searching the information for relevance, and preparing productions to outside legal counsel. All activities are tracked for defensibility and a continuous chain of custody report can be accessed on demand. Clearwell® www.clearwellsystems.com Kazeon® www.kazeon.com Relativity® www.kcura.com Venio FPR® www.veniosystems.com RedFile® www.redfile.com All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 5
  • 8. Search and Analysis of Evidence “… quickly discover the most important facts about the case, whom you need to interview to gain additional information, and additional materials you might need to collect (e.g., additional custodians)… develop a process … that works with your tool set to obtain as much early information quickly as possible…” 5 De-duplication In excess of 90% of all business communications are maintained in electronic form, with the exception of legacy documents and documents requiring original signatures. Thus, the amount of redundancy of shared documents within corporate departments has an adverse effect on preparing a response to a legal discovery request. Within every business there are at minimum 5-7 exact versions of the same document; another 10 near iterations of the original document; and these electronic iterations are found living across several custodians within the enterprise. Including servers, archive folders and personal storage devices. De-duplication refers to the process of electronically reading the file header information and the text of each document to establish a unique fingerprint. This fingerprint is referred to as a hash value. Hash values are usually generated by two different algorithms: MD5 or SHA1. These algorithms allow software to compare all collected electronically stored information (“ESI”) to determine the original version of a document, and further report where duplicate instances are located within the enterprise or collected data set. De-duplication will reduce the amount of ESI for review by 50% in most matters. Proximity Filters In addition to using de-duplication, additional proximity filters continue to narrow the scope of review. These filters target date ranges, directories, custodians, and use of keyword terms. 5 Findlaw.com Analysis Initial Case Assessment All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 6
  • 9. Application of Proximity filters will narrow the scope by approximately 70% after de- duplication. Keyword Generation and Analysis The ability to intuitively understand a case and its documents can rely heavily on the use of keyword terms. The effective use of keywords will identify “hot docs” within the collected data set. These terms are identified during the meet and confer custodian interview, as well as eScoping. They generally relate to “code words” that are directly associated with the matter. Litigators apply the terms to the entire document population to quickly find and categorize documents based on their relevancy. Lately, keyword term searches have come under serious scrutiny by the courts for their unreliability and inconsistency among different parties. Counsel are bound by the FRCP to share and agree upon the keyword terms being used for the purpose of discovery. The challenge for counsel is to generate a comprehensive set of suggested terms that will produce the most relevant results. Technology today provides intuitive analytics to accommodate the increasing demand of the court for the defensibility of keyword searches. Trident Pro® www.discoverthewave.com Casemine® www.casemine.com LAW® Pre-Discovery http://law.lexisnexis.com/law-prediscovery CaseLogistix® http://www.anacomp.com/clx/ Discover-e® http://discover-e-legal.com/ All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 7
  • 10. Review of Evidence Relevance Review The first pass review, or relevance review, by the trial team quickly identifies potentially responsive ESI. The following types of search analyses are applied to the relevance review process: Latent Semantic “… Latent Semantic Analysis (LSA) is a theory and method for extracting and representing the contextual-usage meaning of words by statistical computations applied to a large corpus of text (Landauer and Dumais, 1997). The underlying idea is that the aggregate of all the word contexts in which a given word does and does not appear provides a set of mutual constraints that largely determines the similarity of meaning of words and sets of words to each other ...” 6 Latent Semantic Analysis allows for iterations of common names to be grouped together to maximize accuracy in search string results. For example, “William Jefferson” and “Bill Jefferson” could be joined as one keyword term. Additionally, the ability to join misspelled words into similar search strings is an additional benefit of using semantic analyses during a review. 6 University of Colorado at Boulder – Landauer, T. K., Foltz, P. W., & Laham, D. (1998). An Introduction to Latent Semantic Analysis 1988 All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 8
  • 11. Categorization The use of relevance tags to group documents by category gives a more in-depth, substantive review or production. Common tags include Responsive, Privilege, Attorney- Client, Hot Docs and Non-responsive. Also, grouping items by date provides additional criteria when evaluating ESI for relevancy. The tags are then used to query documents for preparation of depositions and productions. Conceptual Search and Clustering “… a search engine that retrieves documents based on a combination of keyword and conceptual matching. Documents are automatically classified to determine the concepts to which they belong. Query concepts are determined automatically from a small description of the query or explicitly entered by the user…”7 The ability to link documents that are closely related using “code words” is made more efficient by using conceptual search analytics. Conceptual searching decreases the effort required by the legal team to quickly identify the “smoking gun” and related supporting documents. Today, two basic approaches to grouping (sometimes referred to as "clustering") similar documents exist: rules-based and example-based. In a rules-based model, the review team establishes criteria that help determine relevancy rates in the overall document collection. A rules-based approach is similar to keyword searching, but often provides more relevant results compared to keyword searching, as the search engine may use proximity, word patterns, co- occurrence of key concepts, and/or thesauri to determine search "hits" and relevancy. In an example-based approach, documents programmatically describe themselves based on the concepts that are identified within each document. The system then groups documents that are contextually similar for review. An additional benefit of most example-based approaches is that reviewers can employ both discovered material and their knowledge of the matter to narrowly group potentially relevant content. For example, when relevant documents are identified during review, an example-based system can regroup the collection of documents based on the reviewer-provided examples of the relevant document(s). 8 7 University of Kansas - EECS Department Madrid, J. M. & Gauch, S. (2002). Incorporating Conceptual Matching in Search 8 Findlaw.com – Review of Emerging Technologies: Auto-Coding or Clustering All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 9
  • 12. Substantive Review Linear review using in-house or contract attorney reviewers to identify important documents, while eliminating irrelevant files via document management databases. There are two distinct platforms for the substantive review: In-House Relational Database Reviewers access a database stored within the enterprise environment to identify and categorize potentially relevant documents. The database provides the review team the ability to search (boolean and fuzzy) across the entire data set to tag documents based on relevancy. The in-house platform is typically limited based on the systems configuration of the end-user computer and other licensing restrictions for multiple user access. Concordance® Summation® Microsoft Excel® Microsoft Access® Hosted Document Repository “… a hosted litigation support solution is a database hosted online by a third party for a law firm or multiple firms. This could be a firm with a very large case or multi-party litigation. Each party can have its own secure log in passwords and not have access to their opponents’ work product…”9 These solutions improve the review process and offer quite a few benefits: • efficient and advanced searching, • limitless secure user access, • continuous availability to documents via any web browser, and • enhanced functionality to identify and record document relevance. 9 Bow Tie Law Blog - Court Orders For Hosted Review Solutions: When the Judge Wants to See the Discovery Too (2009) All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 10
  • 13. Production of Evidence Native Production “…the responding party provides the requesting party with the documents “as is.” For example, if the producing party used Microsoft Word internally for generating and storing documents, they would provide the requesting party with unmodified (native) Word (.doc) files…”10 A common misconception is that native production allows an opponent to alter the production without being discovered. This can be prevented by using electronic file signatures (hash values) that will identify even the smallest data alteration. A few pros and cons should be considered before using a native review: • PROS: Native data provides easy access to all data, including metadata. Native files retain the original look and feel without translation. There is the potential to implement forensic evidence. • CONS: Originals can be easily modified – with or without intent. Bates numbering becomes inefficient, and requires modifying the original document. There is no easy means for creating redactions with native documents. Image Production Electronic conversion of native files to .TIF, .PDF and/or .JPG format for producing to opposing parties instead of printing to paper is very common. In addition to providing electronic images, the associated metadata and extracted text (OCR where applicable) are provided. This method of production is the standard. Documents produced in this form are easily accessible, searchable and quickly identified when document identifiers (bates numbers) are embedded into the electronic image. These documents are not easily altered, but redactions can be performed when producing proprietary 10 Fulcrum Inquiry® LLP - How To Select The Right Form Of Electronic Discovery (2007) All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 11
  • 14. (or responsive-privilege) content. Metadata The who, what, when and how about an electronic document is referred to as metadata. This data provides information that can aide in settling a dispute regarding the authenticity and time line for a given file and/or production. Metadata can provide information that can help resolve a dispute. Metadata can help lawyers in a variety of ways: 11 1. Reviewing deleted text, and who added text, can be helpful in understanding the path of negotiations and what was intended by the parties. 2. Metadata can help resolve issues regarding (i) the authenticity of a file, or (ii) the timing of documents and the events they describe. 3. Knowing who obtained a file can assist determining whether legal privileges have been waived. 4. Metadata may indicate that a file was based on another older file or was authored by another person, thus calling into question how much additional work was involved in the new document or author. 5. Parties sharing drafts through word processing files could easily be embarrassed (or worse) by the history of what was created and deleted in the exchanged draft. (When issues of document spoliation do not exist, programs, including an option in Microsoft's 2004 versions, can eliminate the metadata and drafting history.) 11 Fulcrum Inquiry LLP - Metadata Primer For Lawyers (2005) All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 12
  • 15. Conclusion The landscape of legal discovery continues to evolve at a rapid pace as the dynamics of collaboration between people are constantly being recorded. The time of holding a business conversation over the phone with a “note taker” have quickly diminished with technology such as voice –over-internet-protocol (VOIP) where all conversations are recorded with or without knowledge of both parties. Creating a business communication via a typewriter seems like a myth from the Pony Express, while today all business communications are created via a keyboard and saved to a chip of physical memory somewhere. The United States Postal Service year after year continues to see a drop in shipping letter sized mail while statisticians report that over 10 billion emails are sent daily world-wide. One might ask, “What did people do before computers, cell phones, email, etc…?” The technological advances of the last 3 decades have created a paradigm shift in human interaction. Litigators also have evolved in the manner for which responses to legal discovery requests are prepared. The courts have recognized these ever evolving developments by amending and monitoring the Federal Rules of Civil Procedure. This includes setting standards for the discovery, handling and production of electronically stored information throughout the litigation lifecycle. Implementation of Early Case Assessment techniques during the discovery phase of litigation quickly identifies a case strategy. Litigators benefit as they are able to identify the level of technology, retention policies, and volume of information. Thus, a roadmap for mitigating risk and expense. “The reality of electronic discovery is it starts off as the responsibility of those who don’t understand the technology and ends up as the responsibility of those who don’t understand the law.” All Rights Reserved. 2009 Superior Document Services Richmond, Virginia Page | 13