E-Discovery: How to Do it Wrong (and Right!)
Avoiding Sanctions through Competent Management of the e-Discovery Process

B...
11. The 6 Million Dollar Subpoena

Before getting to suggestions as to how to do e-Discovery right, this paper will first ...
OFHEO told the district court that its prior assurances were quot;based on insufficient dataquot;,
and it could produce al...
Current Issue: In re Fannte Mae Securrtcrs Ldt~~&m:
                                                 E??

Select Facts:.A'...
111. e-Discovery Growth Drivers and Processes


Growth of ESI Drives e-Discovery

There has been much
discussion of the FR...
Meet and Confer




                                  1
           SmpeDataandttesams       Mnr 3?iadlor Meet and ConA?r

...
Electronic discovery processing is designed to accommodate a wide variety of
unstructured data, handle each form in a mann...
retention policies, data retention architecture, backup procedures and how
        recycling policies are actually impleme...
Developing Your Case and the Data Early; Early Case Assessment

Of course it has always been a good idea to get an essenti...
inclined to 'shoot the messenger'. Some clients think they need a very gung ho 'jailhouse
dog' type of litigator and might...
Rented bu~ld~ng
                                                         l e t Hobt frum
                                 ...
opposing evidence and summary judgment motions for evidence that has not been
successfully developed during discovery.

Ti...
Qualcomm's eve of trial discovery of nearly two dozen emails showing Qualcornm's
        involvement early in the standard...
When the outside attorney asks for more information, the next stop may be the
accounting department. Companies routinely k...
-   - ---      -- - - - -
      Repos~tory
               Name          .-a ~ n - O f ~ ~--- ----Server --.
              ...
Backup tapes deserve special mention as they are often the subject of sanction cases.
Typically in sanction cases attorney...
Figure Out How Much You Have to Review

An important part of early case assessment is to determine how much potentially
di...
backup tapes, and other shared user data sources. More contentious cases may call for
collection by forensic experts from ...
identified, of if previously suggests custodians are represented in the data
        collected to date.
        How many p...
lawyers consider quot;manual review [to be] the gold standard by which all searches should
be measured,quot; that in fact ...
of sampling and an early case assessment to understand the case issues and potential case
keywords as early as possible.

...
How can a party go about doing better than just brainstorming keyword terms? A good
approach is to sample and test returns...
separate text file for each TlFF file using OCR (optical character recognition). Special
TIFF-based litigation support sof...
body of an email as it is text-based and easily searchable with a variety of tools. Email
attachments, however, are more c...
1   / I      F   *   125%   -   d,   EJ9
                                                                             _-
 ...
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Avoiding Sanctions through Competent Management of the EDD Process

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How electronic discovery can go wrong in practice and ways to avoid problems

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  1. 1. E-Discovery: How to Do it Wrong (and Right!) Avoiding Sanctions through Competent Management of the e-Discovery Process By: Gene ~ l b e r t ' Presented at the 22quot;d Annual Technology Conference University of Texas School of Law CLE, Four Seasons Hotel, Austin, TX, May 22,2009 quot;[O]ne or more of the retained lawyers chose not to look in the correct locations for the correct docunzents, to accept the unsubstantiated assurances of an inzportant client that its search was sufficient, to ignore the warning signs that the document search and production were inadequate. . . These choices enabled Qualcomnz to witlzhold hundreds oJ thousands ofpages of relevant discovery and to assert numerous false and nzisleading arguments to tlze court andjuty. This conduct wat,rarzts the inzposition of sanctions. 'quot; I. Introduction The number of sanctions in e-Discovery has increased in recent years as judges have become more knowledgeable with the responsibilities of e-Discovery and the new federal rules and comfortable holding lawyers and their clients before them accountable. E- Discovery has become an increasing important part of many cases because so much of what is important in business and personal interactions is now recorded contemporaneously in emails and other electronic documents, aka electronic stored information (ESI). The continued exponential increase in the amount of electronic documents inevitably means more e-Discovery to review each year for any particular type of case. Effective use of new technology and tools is essential to be able to review and analyze potentially relevant documents in an efficient manner. Sanctions involving e-Discovery are levied for a variety of reasons, including misrepresenting ESI, falsely certifying discovery, late discovery and document destruction. But many sanctions are applied not because attorneys involved did not know the law, or care about the case, or even spend substantial effort and time trying to make a legally adequate production. Instead, sanctions often occur because attorneys and their clients simply do not understand the scope of needed discovery in a case and do not apply proper management techniques to address their discovery responsibilities. This paper will address some ways that attorneys get into trouble in e-Discovery and discuss approaches, tools and techniques to avoid problems that can lead to sanctions. I Gene Albert (JD, Southern Methodist University; MBA, University of Texas at Austin) is a founder of Lexbe.com, which offers a web-based litigation management application, as well as other e-Discovery services. He can be contacted at gene@Lexbe.com. 2 Qualcomm Inc. v. Broadcom Corp., No. 0 5 ~ ~ 1 9 5 8 - B (BLM) (S.D.CA Jan. 7,2008), vacated in part, No. 05CV1958-RMB BLM) (S.D. CA. Mar. 5,2008). Qualcomm Inc. v. Broadcom Corp., No. 05cv 1958-RMB (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7,2008). E-Discovery: How to do it Wrong (and Rlght!) Gene Albert, Lexbe.com 22quot;d Annual Technology Conference, University of Texas at Austln Page 1 of 25
  2. 2. 11. The 6 Million Dollar Subpoena Before getting to suggestions as to how to do e-Discovery right, this paper will first look at an example of how it can go very wrong. In re Fannie Mae Securities ~ i t i a a t i o n ~ upheld a contempt order against a non-party for failing to comply with a stipulated discovery order. The Office of Federal Housing Enterprise Oversight (OFHEO) is a government agency that supervised the Federal National Mortgage Association (quot;Fannie Maequot;). In 2003, OFHEO investigated Fannie Mae's accounting and financial practices and found that Fannie Mae quot;had departed from generally accepted accounting principles in order to manipulate its reported earnings and inflate executive compensation.quot; OFHEO's report prompted several private civil actions against Fannie Mae and its executives, which were consolidated into multidistrict litigation in the United States District Court for the District of Columbia. During discovery three individual defendants who were senior executives at Fannie Mae subpoenaed OFHEO, a non-party to the litigation, seeking records OFHEO had collected during its investigation. On November 6, 2006, the district court denied OFHE07s motion to quash, and directed it to comply during the following four months with the subpoena. OFHEO requested and received two one-month extensions, and in the summer of 2007 reported to the district court that it had produced all of the requested documents in the production. The individual defendants thought that more documents existed, and in a designated representative deposition OFHEO disclosed that it had failed to search for off-site disaster recovery backup tapes. The individual defendants then moved to hold OFHEO in contempt, and at the hearing, OFHEO and the individual defendants quot;entered into a stipulated order that held the contempt motions in abeyance and required OFHEO to conduct searches of its disaster- recovery backup tapes and provide all responsive documents and privilege logs by January 4,2008.quot; The stipulated order further stated that quot;OFHEO will work with the [individual defendants] to provide the necessary information (without individual document review) to develop appropriate search terms. By October 19,2007, the Jindividual defendants] will specify the search terms to be used.quot; (emphasis added) The individual defendants then specified over 400 search terms, which eventually resulted in approximately 660,000 responsive documents to the keyword searches (80% of total emails). OFHEO objected but the district court found that the stipulated order quot;gave the [individual defendants] sole discretion to specify search terms and imposed no limits on permissible terms.quot; To try to comply, OFHEO then hired fifty contract attorneys for document and privilege review, spending over $6 million on the discovery request, which was quot;more than 9% of the agency's entire annual budget.quot; On November 29,2007, the day before an interim deadline for producing various categories of documents, OFHEO requested another extension until December 2 1, quot;assuring the district court that it could meet that extended deadline.quot; The district court granted that extension as well, but on December 19, 2007, ' No. 08-5014 (D.C.D.C 2009). E-Discovery: How to do i t Wrong (and Right!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 2 of 25
  3. 3. OFHEO told the district court that its prior assurances were quot;based on insufficient dataquot;, and it could produce all non-privileged documents by the January 4,2008 deadline, but it could not produce the required privilege logs until two months later. The individual defendants then renewed their motions to hold OFHEO in contempt. The district court so held and characterized OFHEO's efforts quot;too little too late,quot; and found that quot;OFHEO ha[d] treated its court-ordered deadlines as movable goal posts and ha[d] repeatedly miscalculated the efforts required for compliance and sought thereafter to move them.quot; As a sanction, the court ordered production of all privileged documents immediately on an attorney's eyes only basis. OFHEO appealed the contempt finding and the sanction to the U.S. Court of Appeals for the District of Columbia. While recognizing the quot;extensive effortsquot; made by OFHEO to comply with the order, the Court of Appeals concluded that OFHEO had not established a reasonable basis for concluding that the district court abused its discretion. The Court found itself quot;ill-positioned to second-guessquot; a district court's assessment of whether strict enforcement of its deadline was necessary. Noting that an abuse of discretion in such a case quot;would risk undermining the authority of district courts to enforce the deadlines they impose.quot; Clearly the result of OFHEO spending so much for a 3rdparty subpoena is shocking, but the review standard for abuse of discretion is high. Here are several things that OFHEO did or did not do (with 20-20 hindsight) that may have contributed to the poor outcome from OFHEO's perspective: OFHEO abandoned objections under FRCP 45 to cost shifting and narrowing of scope by agreeing to the stipulated order. There is no evidence that OFHEO sought to establish that the backup tapes were not reasonably accessible. OFHEO did not offer expert testimony as to the unreasonableness of search terms or of the discovery request in general. Counsel for OFHEO agreed to an open-ended search term procedure without apparently understanding the implications or potential costs. In re Fannie Mae Securities Litigation illustrates the problems resulting from litigants and attorneys not understanding early on in the case the amount of ESI at issue. This is evidenced by the fact that OFHEO missed at least three discovery deadlines, and at the end of 1 % years after the initial subpoena was served did not know how many documents were responsive and had not completed privilege review. This in spite of the fact it had spent over $6 million and had over 50 lawyers working on the request. E-Discovery: How t o do ~t Wrong (and Right!) Gene Albert, Lexbe.com 22quot;* Annual Technology Conference, University of Texas at Austin Page 3 of 25
  4. 4. Current Issue: In re Fannte Mae Securrtcrs Ldt~~&m: E?? Select Facts:.A' .ll?ri ..........-- . . . .. . .. .. .. . . , .- Totd Facts: 14 Dl$rict court rules for the ddendarjks and &&& C % O t %E o durn-rg the mxt f ~ months, w OFEO requests that e-Dtscovefyhe bged to file5 m OFHEO mr1w; several extenam5 Frem the c w t OFHEi)reparts to thecaurt that & h a d p a d . a % h m OFEO c d ~ t mn Rule 3U(bX&j depo thal B had F& s tci wh &a# 6 mflifw tts off-sikedaaster-recovery b& tapes responstve Jwumer~k.and wwhqe If*3fmjantrto specify search terms, D&enMs 5pecIf.y W wrch tam In re Fannie Mae Securities Litigation offers a couple of take-aways. From a legal perspective it may say no more than that if you misrepresent yourself repeatedly to the trial court, miss a lot of deadlines, and then agree to something inadvisable in a stipulated order, good luck getting the trial court or an appellate court to let you off the hook. But from a practical perspective it provides a powerful warning: If attorneys do not get a handle on e-Discovery and ESI issues early in the case, or do not manage e-Discovery processes well, the consequences can be disastrous to the client and the attorneys. E-Discovery: How to do it Wrong (and R~ght!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 4 of 25
  5. 5. 111. e-Discovery Growth Drivers and Processes Growth of ESI Drives e-Discovery There has been much discussion of the FRCP More E = More e-Discovery e-Discovery amendments in recent years, but these merely Digital Information Created, Captured, Replicated Worldw~de reflect the new reality of the amount and importance of ESI. The increasing amount of ESI has been the Online Storag~ primary driver of e- Digital Camera Discovery growth. Facebook Skyp~ Datacenter Application Both the types of Satellitelmages Scanner available data storage Messaging Vtdeoconferenc~n~ media and amount of storage available I n Ctrstomer 5erbrice Record~ng ptups MetbooksServers torens~cs Saa continue to expand unabated under Moore's law. It would be natural to think that the growth is about to level off, but nothing could be further from the truth. Predictions from equipment manufacturers suggest that the amount of digital information will continue to grow at an exponential rate for as long as we can imagine. Plus, digital storage is increasingly where the action is. In particular, email of participants in a commercial litigation matter captures the contemporaneous facts of what happened and why in a way that was unimaginable back in the days of typewriters and phones. An attorney can hardly begin to understand what actually happened in a modern commercial case without a thorough analysis of email and other ESI. Limited Timeline in e-Discovery Under the FRCP there is a fairly limited time span between when a complaint is served and counsel needs to be prepared to attend the meet and confer meeting and the scheduling conference with the judge. During the initial days of the case counsel for both sides must identify sources of data repository, assess their contents and accessibility and be prepared to 'meet and confer' and enter into discovery agreements. This can be a lot to do in a short period of time for cases that involve much ESI. E-Discovery: How t o do ~t Wrong (and R ~ g h t l ) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, Unrverslty of Texas at Aust~n Page 5 of 25
  6. 6. Meet and Confer 1 SmpeDataandttesams Mnr 3?iadlor Meet and ConA?r Understand the ESI Process e-Discovery production has a lifecycle that must be understood to be managed. E- Discovery sanctions usually involve failure to deal with one of the major lifecycle components properly. It can be helpful to break the e-Discovery process into the following steps as defined by the Electronic Discovery Reference Model (EDRM) Project, a leading industry working group: Information management refers to the evaluation of how records management programs impact electronic records and e-Discovery. Identfication refers to the process of learning the location of all data which is subject to the duty to preserve and potentially disclose in a pending or prospective legal proceeding. The duty to preserve electronically stored information (or any potentially relevant evidence) arises when a party reasonably foresees that the information may be relevant to pending or anticipated litigation. Duta collection is the acquisition of electronic information (data) marked as potentially relevant as part of identification. Electronic information should be collected in a manner that is comprehensive, maintains its content integrity and preserves its form. E-Discovery: How to do ~t Wrong (and Right!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 6 of 25
  7. 7. Electronic discovery processing is designed to accommodate a wide variety of unstructured data, handle each form in a manner appropriate to its file type, and generate output that is structured in accordance with review requirements that often vary with law firm practices, client needs and review technology provider specifications. Document review is used to identify responsive documents to produce and privileged documents to withhold. Improvements in data storage, database and search technology, and online review functionality are providing increasingly efficient options for handling the volume of data and streamlining the review process. Analysis is the process of evaluating a collection of electronic discovery materials to determine relevant summary information, such as key topics of the case, important people, specific vocabulary and jargon (which can vary significantly between and even within companies), and important individual documents. Analysis is performed throughout the remainder of the process as new information is uncovered and issues of the case evolve. Good technology and techniques are essential to effective analysis. Production refers to the delivery of responsive, non-privileged documents to opposing counsel. Rule 26(f) sets an expectation that the method and format by which electronic data are to be produced should be considered and negotiated by the parties early in the discovery process. Source: EDRM project4 I V . How to Do it Right The remainder of this paper will address the e-Discovery process and tools and methods to allow a production to be handled competently and efficiently. This requires both an understanding of the process, skills to manage it properly and tools to be efficient. Accept (Even if you can't Embrace) the New Discovery Obligation from Zubulake In the leading e-Discovery case ~ u b u l a k eJudge Scheindlin outlined a list of ,~ responsibilities that counsel would be well-advised to follow when e-Discovery is involved: As soon as litigation is reasonably expected, attorneys should issue a litigation hold directing all employees to preserve documents and data that may be relevant to the litigation. Once a hold is issued, counsel should determine all sources of potentially relevant information and speak with the company's IT department about its document http://www.edrm.net Zubulake IV, 220 FRD 2 16 (SDNY 2003) E-Discovery: How t o do i t Wrong (and Right!) Gene Albert, Lexbe.com 22quot;d Annual Technology Conference, University of Texas at Austin Page 7 of 25
  8. 8. retention policies, data retention architecture, backup procedures and how recycling policies are actually implemented. Lawyers should go further and interview all of the key employees involved in the case to determine how they store electronic data such as emails and evaluate their compliance with company document retention policies. Employees should be instructed to produce electronic copies of their relevant active files and ensure that all backup data that the company is required to retain is safely stored to avoid the risk that backup tapes will be recycled. Lawyers should take affirmative steps to monitor compliance with the litigation hold and periodically re-issue the hold so that new employees are aware of it and that it remains fresh in the minds of other employees. These responsibilities assume a very interactive and involved role of the attroney with his or her client and its employees and agents. It also assumes that the attorney has the skill and resources to manage the e-Discovery process, as well as the attention and cooperation of potentially many diverse employees of the client with control over electronic data. Related to the Zubulake duty is FRCP 26(g), which requires an attorney to sign each discovery disclosure, request, response or objection and to quot;certifly] that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry, the disclosure is complete and correct.quot; The duty to make a quot;reasonable inquiryquot; is satisfied when the investigation undertaken by the attorney leads to conclusions that are reasonable under the circumstances. It is an objective standard similar to Rule 11. The requirement of a certification based on reasonable inquiry is not new, but the recent increase in discovery ESI has renewed focus on FRCP 26(g). So when an attorney responds to a discovery request in error because some ESI was undiscovered, he or she faces possible sanction exposure if there was not a reasonable inquiry into the truthfulness of the filing under FRCP 26(g). Identifying, preserving and collecting ESI can be a sizable project; one with an initially unknown scope. Despite this, attorneys work under set deadlines to complete it. Repeatedly missing deadlines and asking for extensions can materially undermine the court's confidence in counsel. E-Discovery: How to do i t Wrong (and Right!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 8 of 25
  9. 9. Developing Your Case and the Data Early; Early Case Assessment Of course it has always been a good idea to get an essential grasp of the strengths and weaknesses of one's case early as early as possible. However, this becomes more important and more challenging with a case that involves substantial ESI. Assessing one's case early is more important now because keyword selection used for discovery requests and Rule 26 Meet and Confer agreements depends on accurate identification of the important case issues. If the critical issues of a case are not identified until later, then it will become necessary to request additional documents based on new keywords, or from different custodians. This adds cost to discovery collections and tries the patience of opponents and potentially the trial court. At some point in the discovery process the cost of additional collections will shift to the requestor, or it simply will not be possible to get for issues indentified too late in the process. A related important issue involves identifying potential claims and defenses early enough in the discovery process to be able to include them in the pleadings. Assessing one's case is also more difficult with ESI intensive cases because getting information about the case early from the data can be expensive and is dependent on knowing the issues to generate keywords: a 'catch-22'. If one is trying to get the important facts early in the case from the ESI (as opposed to witness interviews and case participants, etc.) then the review of ESI should be an iterative process of trying proposed keyword searches, manually reviewing a sample of the documents returned by the search results, and then revising search terms. The process of getting a handle on a case early is sometimes called 'early case assessment'. As part of the early case assessment process, counsel will identify what discovery is needed, identify key witnesses and data custodians, construct factual timelines and determine the strengths and weaknesses of the case. This assessment is done in the first 60-120 days of a case and communicated in various forms with the client, opposing counsel and the judge. The goal of this proactive approach is to develop an early strategy for the case, realistically evaluate the case, and determine the cost and budget to prosecute or defend, and identify business practices that might be modified to minimize litigation exposure in the future. This sounds like 'mom and apple pie' and is not a new idea6. Why isn't this done on every case? There are several real life barriers to doing a comprehensive early case assessment. One is the need for client support. Doing an early case assessment will cost money and a client may view it as 'over-working' a case if the client does not understand the process and benefits. These benefits include a better understanding of the case early that can lead to earlier opportunities for settlement and reducing unnecessary e-Discovery costs. A more subtle objection is the concern with being the bearer of bad news. A legitimate worry is that the client may not be ready to hear bad news about the case and may be 6 See. ex., Eric L. Barnum, A n Introduction To Early Case Assessment, The Practical Litigator, Nov. 2006, at21. E-Discovery: How to do ~t Wrong (and Rlghtl) Gene Albert, Lexbe.com 22quot;* Annual Technology Conference, Unlverslty of Texas at Austln Page 9 of 25
  10. 10. inclined to 'shoot the messenger'. Some clients think they need a very gung ho 'jailhouse dog' type of litigator and might interpret an early balanced analysis of case strengths and weaknesses as lack of confidence by their attorney in their cause. This problem is compounded when the litigator is recently hired and does not have experience with the client. The client at this point has not yet developed confidence in the judgment of the lawyer and this may make it harder for the lawyer to communicate bad news. For these types of clients some lawyers believe it best to let the adverse facts of their case sink in to the client over time. Depositions are particularly helpful in focusing a client on the potential or actual weaknesses of their story. Eventually the client begins to accept the shortcomings in their case, but not so much directly from their attorney or too soon, and are eventually more inclined to settle. This is why so many cases settle on the courthouse steps. This approach can be unnecessarily expensive as clients eventually become ready to settle a case on the courthouse steps for an outcome that might easily have resolved the matter early on with much less cost and pain to the client. For this reason, the naYve approach of not being able to hear bad news about one's case early is more common with smaller companies, and executives and individuals who do not have enough experience in the vagaries of litigation. The cost of the 'wait and see' approach of not doing early case assessment is greater today, and will continue to grow, because of the increase of ESI. Some cases may have so much potentially relevant ESI that the cost to review it may outweigh the benefits of litigating. In reality a case in which the opposition has enough merit in their case to allow extensive e-Discovery justifies an early evaluation of that cost and raises the case's settlement value. Also, not understanding one's case early can greatly increase the cost of conducting e-Discovery by requiring repeated requests and reviews as key issues and keywords are not understood, and custodians and data repositories not identified, until relatively late in the case. 'Early case assessment' is also used in a different sense by some vendors offering e- Discovery services and products. Here they are instead referring to tools to quickly gather, deduplicate and search ESI as a first pass to provide and early analysis of the amount and content of ESI. This can be important too in some cases, but is a different idea than the process of interviewing witnesses and constructing timelines, etc., discussed here as 'early case assessment'. What types of things might one do as part of an early case assessment? One key step is to identify all the key case participants. These include the parties, executives, material witnesses, potential deponents, subjects of potential third part subpoenas, data custodians of ESI, etc. Case participants can be gathered as a list and discussed with the client and individuals familiar with the underlying facts of the dispute. E-Discovery: How to do it Wrong (and Right!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 10 of 25
  11. 11. Rented bu~ld~ng l e t Hobt frum and 7120 Plne Forest Poad Pensacda FL 32520.5923 m x Phone Fax 745-792-0324 745-732-0325 Defendant 1 Phone: 850-873-6821 && 'Ihippe~ Prnpert~es, Inc. Owned 3nd 2510 H Pace Blvd Fa*: rnamtalnedJet Ho~st Pensacula, FL 32505 Defendant Cell: sut~ect acodent of Emall: Phone: 850-433-5330 Hoist H~miJlmg 2lJ0 E Gregurl St Fa*: Repared jet hact Fensacula, FL 32501 6 1 Jones 11 Phone: 480-123-5487 Witness to acclder,t 807 W Garden St, Pensacola, FL Fax: 480-123-5488 &$ Pres~dent F h Cell: 480-123-5489 witness Started a year agn Emall: b~ll,iones@vahoo.corn Developing this list is an iterative process, as clients and other persons familiar with the case can be shown drafts of the list and it will jog their memories about other persons or companies who should be included. quot;I don't see Judy F. on the list. She worked as contractor for us two years ago and did a lot of work on that project. She keeps her computer at home and will have a lot of files there.quot; Finding potential data custodians early through this process can avoid problems and increased costs down the road. Another early case assessment tool is to construct timelines at the outset. Certainly all lawyers construct timelines eventually as a case progresses towards trial, but there are advantages in doing it very early as part of an early case assessment. When doing chronologies very early in the case, they are of course constructed from limited sources available at that time: facts from initial client interviews, review of key documents forwarded by the client, and alleged facts from the opponents pleadings. However, even these limited sources can begin to give a good picture of where the strengths and weaknesses of the case lie. Current Issue: 05 franl~rs : L X ~ S 5s / I &.st the *&era ?he 4 . d went h e r&?r thdntn the b pa r t] 1'i'Zquot;4 ?&a Fr&-g&&x yB'= -*dhd / W W e Cmwterny W o L!ld the b k k r w w d t e r ths?dc&W Fr g;i2g M F a * a & & W / tm Kmt to U h w k e l t b L u - b s ah* th* acclden IYtW we F t y ~ L~ & s ~ s & s I8 L a #X* !L+ Early case timelines can also include facts that are needed to support the claim or defense based on anticipated jury instructions for the claims involved. These facts remain 'orphaned' until associated with one or more documents or portions of deposition testimony. The existence of these orphaned facts serve as red flags for evidence that needs to be developed during the discovery stage. Similarly tracking facts that one's opponent needs to prove for his or her case serves as focal points for developing E-D~scovery:How to do it Wrong (and Right!) Gene Albert, Lexbe.com 22quot;dAnnual Technology Conference, Un~versity Texas a t Austln of Page 1 of 25 1
  12. 12. opposing evidence and summary judgment motions for evidence that has not been successfully developed during discovery. Timelines also serve as a good way to begin educating clients about the potential holes or weaknesses in their case. A client can begin to digest a truer picture of his or her case through periodic review of timelines showing positive and negative facts backed up with documentary evidence or deposition testimony. Such chronologies can also help the client to develop supporting evidence, both documentary and oral, by jogging the client's memory for missing or contrary evidence. As the case develops and more evidence comes in, the issue timelines can be supplemented more easily. With functional case timelines, an attorney is also in a better position to quickly develop and defend sumillary judgment motions and to identify specific facts backed with evidence. Map the Data, Identify the Custodians At the Rule 26 Meet and Confer, the attorneys for the parties are expected to understand their own IT infrastructure, how much potentially responsive ESI they might have, where it is located and what custodians have control over it. The allowed 120 days (before any extensions) may not be sufficient for many e-Discovery projects. A legal hold can only be effective to custodians who are identified and receive it. Many e-Discovery sanctions involve attorneys not knowing where their client's ESI is until too late in the process. At best this involves embarrassment and loss of credibility with opposition and the court. But failure to identify ESI early on can also lead to spoliation as ESI is regularly destroyed in the usual course of business. So if ESI is not identified promptly in the discovery process and preserved, it is possible that it will be irretrievably lost. This is what happened in the notorious Qualcomm Inc. v. Broadcom Corp case, in which a federal judge admonished Qualcomm and its counsel for failing to discovery and turn over email evidence. Thousands of key emails were discovered only after trial in what the district court referred to as a quot;monumental discovery blunderquot;. At issue were emails and other electronic documents suggesting that, contrary to Qualcomm's claims, that Qualcomm had participated the development of an industry standard which would lead to infringement of Qualcomm's patents. The court ordered Qualcomm to pay $8.5 million for Broadcom's litigation costs and referred counsel for possible state bar sanctions. The court identified quot;numerous warning flagsquot; that should have lead to discovery and production of the withheld documents, including: Broadcom's production of an email reflector list supporting that email regarding standard setting was sent to Qualcomm representatives early on during the standard setting process. Broadcom's impeachment of multiple Qualcomm Rule 30(b)(6) witnesses showing Qualcomm's involvement in early stages of the standard setting activity. 7 Qualcomm Inc. v. Broadcom Corp., supra. E-Discovery: How t o do it Wrong (and Right!) Gene Albert, Lexbe.com 22quot;* Annual Technology Conference, University of Texas at Austin Page 12 of 25
  13. 13. Qualcomm's eve of trial discovery of nearly two dozen emails showing Qualcornm's involvement early in the standard drafting process. The court also noted Qualcomm's specific failures to act, including failure to search the computers of its Rule 30(b)(6) witnesses for responsive email and other documents; failure to use search terms that could have been derived from the materials produced by Broadcom; and failure to otherwise access and review the computers, databases and emails of its employees and consultant involved in the standard-setting process. Failing to find data repositories can be disastrous. How does one go about finding them? When an outside attorney first approaches the IT department of a client asking for a data map, he or she is likely to get a 'network map', which is a graphical representation of computers and other devices and networks. IT professionals maintain these maps as part of their jobs, but they can sometimes get out-of-date due to the highly dynamic nature of IT systems and the rush to do more pressing work. . . This level of information, however, hardly begins to I address what is needed for e-Discovery. First, it I usually refers to computers and network nodes only, and not to backup tapes, software as a service, remote storage, laptops and personal devices, etc. Second, it does not specifically identify custodians, retention policies and other information needed to assess the importance of any particular data store. E-Discovery: How t o do it Wrong (and Right!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 13 of 25
  14. 14. When the outside attorney asks for more information, the next stop may be the accounting department. Companies routinely keep asset depreciation schedules of all fixed assets and these records will give hints at to potential data repositories. But these records are insufficient for e-Discovery purposes as well. Accounting records seldom if ever will provide the kind of detailed use information needed. Also, companies may carry assets on the books that are not really in use for e- Discovery purposes. Moreover, asset schedules refer to fixed assets only, and will typically ignore non-capitalized leased equipment, rented equipment, hosted services and personal assets under the Table PZ: companies influence or control 7 L l s t of flxed .issets w r t l ~ l a s s e s c D e p r e c ~ a t ~ ~ nl e s o (e.g., home computers, laptops, Cla?~ Deacrlpt~or cust phones, personal data managers, 11 Equipment etc.) 12 lEqu~pment Equ~pment Equ~pment #23 #33 6.31 2 10 6,509 97 13 ,Equ~pment Equipment #26 6,562 33 1 4 Equ~pment Equlpmerd # I 0 7,070 14 IT and accounting records kept in 15 Equ~pment Equ~pment #34 7.619 63 the usual course of business are really only the starting point for building the type of database needed to manage e-Discovery. Instead, counsel needs to construct a content map designed to include the type of information needed to properly manage e-Discovery. E-Discovery: How t o do i t Wrong (and Right!) Gene Albert, Lexbe.com 22quot;* Annual Technology Conference, University of Texas at Austin Page 14 of 25
  15. 15. - - --- -- - - - - Repos~tory Name .-a ~ n - O f ~ ~--- ----Server --. ~ Exchange - -- -- c e -- ID ?1€Q-i?136 7 --- -- vj Locatron ?- -- Ma~n L- Offlce - -_I_II 7 Content Descr~pt~on -- -- -- - -- - - - - -- -- - - -- Exchange ernall server. MS Exchange 2007. Appr, 20 GB of Bus~ness Owner emad on server (more In local PST fdes on cl~ent CPUs). - - - Governance Pol~c~es - -- - - - - - - - When D~scont~nued Users generally l~rn~ted 200MB on server, but excepbons to allowed on case-by-case baas. Local PSTs allowed L - -- - -- - - - - --- I Not Reasonably Accessible r- - - - - - - --- --- -- --- - Record Last Updated = I - - - ; Dally full backup, wTh tapes retamed For 30 days, Monthly backup tape reta~ned 6 month. For An ESI Content Map is a report of an organization's electronic data sources for use as a litigation management tool. It will include the names of custodians, the type of information included, backup policy, location and other information helpful in determining if a repository is reasonably accessible for legal purposes. It will not include irrelevant IT structure or accounting information. Data sources include e-mail archives, network shares, document management systems, financial systems, proprietary databases, external databases, etc. The map will include understandable information that counsel needs to competently identify, preserve and collect ESI required for discovery related to litigation or a governmental investigation. Additionally, a well-maintained ESI content map can help show compliance with the safe harbor in FRCP Rule 37 for a party that demonstrate with quot;good faithquot; that its ESI practices are sound. This can help counsel demonstrate that a company has been proactive regarding its discovery obligations. E-Discovery: H o w to d o i t W r o n g ( a n d Rtght!) G e n e Albert, Lexbe.com 22ndAnnual Technology Conference, University o f Texas a t A u s t ~ n Page 15 o f 25
  16. 16. Backup tapes deserve special mention as they are often the subject of sanction cases. Typically in sanction cases attorneys will represent to the court that all ESI in a case has been found and then be embarrassed later as more backup tapes appear. How does this happen? Some cases involve intentional malfeasance. But more often the problem may simply be one of lack of communication. One common problem is the lack of accurate knowledge among senior management as to how backups are actually done in their company. The cost of backup tapes is Q: Now many backup tapes do you maintain? cheap, but the depends on & c you ask 3! consequences of not Oeponent Answer having one when CI0 quot;None. We back upeverything online now.quot; needed are great. So quot;Wealso still follow a poltcy of keeplng monthly backup tapes going operators who make Director of IT back three months and 10 daily backup tapes that are rotated dally backup tapes can and wer-writethe ones that are 10 daysold. 13 total.quot; sometimes retain extras. It is one thing to have IT Supervisor quot;We keep daily tapes going back 30 daysand six months of monthly, an IT procedure (e.g., to and there are 2 tapes for each backup, so about 70.quot; rotate and overwrite backup tapes) and it is haveone. Most old backup tapes are in our offsite warehouse. another to have it Night-shift There must be over a thousand there going back over 10 years. I IT Operatot followed consistently. think Fred and Bill have some at home too. Maybe others too, you'd Few senior managers (who most often communicate with outside lawyers) and inside counsel actually are involved with the details of how backup tapes are actually made. It is important, therefore, as part of building a content map to identify and interview IT staff down to the operator level to find all potential data repository early. E-Discovery: How to do it Wrong (and Rlght!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, Universtty of Texas at Austin Page 16 of 25
  17. 17. Figure Out How Much You Have to Review An important part of early case assessment is to determine how much potentially discoverable ESI exists, how much is reasonably assessable, and the volume of page equivalents to deal with once a review begins. Attorney review costs are primarily page and document driven. A surprising number of page equivalents can exist on drives and storage media like CDs, DVDs and flash drives. A distinction needs to be made between raw ESI before and after culling and deduplication. As part of I Pages in a MBIGB e-Discovery Calculator these processes7 'ystem 71-11,sfree O I I I I I ~ ~ca~l:Liritul III~IJ~;~ e g a i ~ ~ ~ t e s , rjt~vali~u:3 vpes p g , t:~l~ttc~nk ctr ~>igrib>yte,s file e!,la~~ files and other clearly F S i e , Word, b c e i and other rlative flies, P C J F ~TIFF^, etc ) estimate- ~qutualent , pages and b.:zse? irrelevant files are removed, duplicate files logged and only one copy 111s 1:tl~dyct':. - I raiiuiritor 1 5 ~ ~ s e ffijrl i;iiculatitlg e-cuscoveru' riocun~erit I u revlev.; rosts a n d preparing Ilt~gatlon of duplicate files left in the collection for review. Culling and deduplication can reduce data stores by 20%-70% depending on how data are collected and other factors. TI$% Even at an early stage before e-Discovery processing, an estimate of culling and deduplication Grantf Total reduction in data size can [Compute] *=, g&&{%-: , < --y-%k-+ac . be made and a page http //www lexbe corn/hplPages-Megabyte-Gigabyte aspx estimate generated. Different file types convert into pages at very different rates, so it is not possible to get a very accurate estimate of page equivalents by taking the overall size of data stores (in MB or GB) and converting based on a single conversion factor (e.g., pages1GB). There is just too much variation between different data collections. Instead, an estimate based on the relative prevalence of different file types in the collection is more accurate. These early page estimates are critical in determining what kind of staffing will be needed to review docun~ents, how long the review will take and how much discovery review will cost. Consider a Quick ESI Analysis Collection can be done in several ways and the method of collection may vary with the type of case. In very routine cases, identified custodians can self-collect files and forward to counsel. Independent collection from custodians is becoming more common - as it avoids the problem of a custodian intentionally or inadvertently under-disclosing responsive EST. The IT department can collect email repository on the server, file shares, E-Discovery: How t o do it Wrong (and Right!) Gene Albert, Lexbe.com 22quot;dAnnual Technology Conference, University of Texas at Austin Page 17 of 25
  18. 18. backup tapes, and other shared user data sources. More contentious cases may call for collection by forensic experts from certain custodians. Forensic collection can preserve all of the system metadata and forensic investigators can certify to the chain of custody of the evidence in case of challenges to its authenticity. Sometimes actual drive images are made of the computers of key custodians. One case may involve ESI gathered from by under different methodologies, and as a result may be a hodgepodge drive images, email stores, individual files, etc. An increasingly popular technique is to do a quick analysis of what is in an ESI collection. As mentioned above, it is critical to understand early on in an e-Discovery project how much work must be done to be able to properly staff and construct accurate project timelines. Clients also require budget estimates and need to be able to make review decisions, and determine whether and how to proceed with litigation, with overall costs in mind. Quick ESI Analysis Amount of Data in Analysis Review Statistics Potential Custodians Metadata Extr. S~ze(GB) 51 3 Est Paaes Name #Flies % No of F ~ l e s 3.728 Emall 492,480 29% Br~an Budw~n 349 13% Images 89,775 5% Glor~a McM~nn 237 11% File Type Distribution PDFs 112 860 7% Shannon Norberg 252 9% No % S~ze[GB] % Presentat~ons 20,520 1% Dav~d Bahler 214 8% Emall 1.274 34% 12 312 24% Spreadsheets 76,372 4% Ann Forster 182 7% PDFs 528 14% 5643 11% Text 513,000 30% Ranjeev S~ng 155 6% Sytern Flies 515 14% 11 799 23% Word Process~ng 184,680 11% Chad Huston 132 5% Other 336 9% 3078 6% Other F ~ l e Types 230.850 13% Reese Range 112 4% Tert 295 8% 2 052 4% Total Pages 1 720,537 Allson Kneeland 95 4% Word Processing 271 7 % 3078 6% Kr~sten Vale 81 3% Audlo 217 6 % 6 156 12% PagestDocument 8 Rob Hernandez 69 3% Images 183 5 % 3531 7% Est Documents 2,745,967 Mason Gross 58 2% Presentat~ons 54 1% 1 026 2% Brlan McKn~ght 50 2% Spreadsheets 37 1% 0 509 1% Review Time D~ane Dav~s 42 2% V~deo 18 - 0% 2052 4% Doc Rev /Hr Man Hours Ann Volgt 36 1% 3.728 51 296 25 109,839 Joshua Szymczak 30 1% 50 54,919 Fred Klng 26 1% 75 36613 Lei Sun 22 1% 100 27,460 Berry Shelton 19 - 1 % 2.684 83% Raw or partially processed ESI can be analyzed relatively inexpensively (compared with full ESI processing) to obtain the following information early in the process as a 'Quick ESI Analysisquot;: What is the approximate distribution of file types in the data collection? What is the approximate distribution of file dates in the collection? Discovery productions are often limited by file creation dates and this can show how the data collected will be reduced by date limitations. What persons are identified as authors in the files (from email and file metadata)? This shows if the collection identifies custodians that have not previously been E-D~scovery:How t o do it Wrong (and R~ght!) Gene Albert, Lexbe.com 22quot;* Annual Technology Conference, Unlverstty of Texas at Aust~n Page 18 of 25
  19. 19. identified, of if previously suggests custodians are represented in the data collected to date. How many pages are likely to be converted from the data collected? Construct Good Keyword Searches We are in the middle of a paradigm shift in electronic discovery from mainly manual review to mainly electronic review. Prior to e-Discovery, attorneys believed that they should manually review every document (if not every page) of a document review set, and anything short of that standard was deficient. As electronic data repositories have exploded in size this approach has become untenable in an increasing number of cases that involve so much ESI so as to be uneconomical (or even impossible) for attorneys to try to manually review all potentially responsive documents. As a result attorneys have become increasingly reliant on keyword searches to identify potentially responsive documents. But a study conducted the 1980s casts doubt on the ability of litigation teams to accurately determine a set of comprehensive search terms that will return all or even most potentially relevant documents. Attorneys and paralegals involved in a subway accident case used a keyword methodology to search a discovery database consisting of 350,000 pages in 40,000 documents. The litigation team believed that they had located at least 75% of the relevant documents. A separate manual review of documents was conducted and found that the litigation team had only identified 20% of potentially discoverable documents through keyword searching alone.' Many of the missed documents included vocabulary that the litigation team had not anticipated. Participants working for the subway in internal communications referred to quot;the unfortunate incident,quot; while victims referred to it as the quot;disasterquot;. Relevant documents also included oblique references to the quot;event,quot; quot;incident,quot; quot;situation,quot; quot;problem,quot; and quot;difficulty.quot; Many documents were missed that might have been identified with a thorough manual search or more inclusive searching approaches, like concept searching. This study illustrates that keyword searches should be designed with these types of potential problems in mind. While keyword searching alone can miss many documents, so can manual review. As anyone who has done document reviews knows, it is grueling work and concentration lags after even a short period of time. Plus different reviewers will apply disparate standards even working from a well-defined protocol and will produce inconsistent results. The influential Sedona Conference supports the conclusion that manual review alone is not the answer. In Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery (August 2007),~ authors note that while most the Blair & Maron, An Evuluation of Retrieval Eflecliveness for u Full-Text Document Retrieval Sj~stem, 28 Com. A.C.M. 289 ( I 985) (publication o f the Association for Computing Machinery). 9 E-Discovery: How to do ~t Wrong (and R~ght!) Gene Albert, Lexbe.com 22quot;* Annual Technology Conference, Unlverslty of Texas at Austln Page 19 of 25
  20. 20. lawyers consider quot;manual review [to be] the gold standard by which all searches should be measured,quot; that in fact a manual review methodology inevitably results in its own errors of missed documents. quot;Human review of documents in discovery is expensive, time consuming, and error-prone.quot; Instead, a mixed approach is best with construction of superior search keywords through an iterative methodology of keyword searches on a representative sample and then manual review of returned documents from the sample to develop an expanded list of keywords. As keyword searches become more important, not surprisingly we are seeing opposing parties construct very different sets of proposed search terms. We saw this in the Fannie Mae Securities Litigation case, discussed above, and it is also the subject of William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. CO.,quot; in which a U.S. magistrate judge recently issued a self-styled quot;wake-up callquot; to lawyers designing keywords without adequate information quot;by the seat of their pants.quot; This case involved claims concerning alleged defects and delays in the construction of the Bronx County Hall of Justice. The Dormitory Authority of the State of New York (quot;DASNY quot;) directed the project. At the time of the discovery dispute, non-party Hill International served as DASNY's construction manager and agreed to produce Hill's DASNY-related ESI to the other parties in the action. DASNY proposed a handful of search terms including quot;DASNY,quot; quot;Dormitory Authority,quot; quot;Authorityquot;, quot;Hall of Justicequot; and quot;Bronx but not Zooquot;. The other parties requested thousands of additional search terms, including quot;sidewalk,quot; quot;delay,quot; quot;budget,quot; quot;elevator,quot; quot;claimquot;, etc. The magistrate judge complained that he was in the quot;uncomfortable positionquot; of having to construct a search term methodology without sufficient input from the parties or the relevant custodian. He ruled that in addition to DASNY's proposed terms, the search should incorporate the names of the parties' personnel involved in the courthouse project, but rejected a much expanded keyword list without more justification. He criticized the parties search term methodology as quot;just the latest example of lawyers designing keyword searches in the dark.quot; All keyword searches are not of like quality. Judge Paul Grimm recently wrote quot;while it is universally acknowledged that keyword searches are useful tools for search and retrieval of ESI, all keyword searches are not created equal; and there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search or relying exclusively on such searches for privilege review.quot; '' Keywords are often negotiated very early in the case. But as the case evolves new issues and keywords inevitably will be identified. As this will involve more expense for the responding party, going back and negotiating more keywords may be difficult. Before allowing this without consent a court may want to know why proposed keyword additions were not identified earlier. This supports the importance of the iterative process 'O No. 07 Civ. 10639,2009 WL 724954 (S.D.N.Y. March 19,2009). 'I Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. at 25 1, 256-57(D. Md. 2008). E-Discovery: How to do it Wrong (and Right!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 20 of 25
  21. 21. of sampling and an early case assessment to understand the case issues and potential case keywords as early as possible. Proper keyword construction is harder than it looks. Many lawyers underestimate the complexities involved because they think it is just like running searches in LexisTMor WestlawTM, which they have been doing as long as they have been practicing. But legal research searches are much different in character because they address only structured text databases designed to provide for easy and accurate results. Searching unstructured e-Discovery repositories is a much different task and involves many more potential dificulties. There is never a 'perfect' set of keywords, and keyword construction will always involve a trade-off between being overly-inclusive (false positive or Type I error) and being overly-exclusive (false negative or Type I1 error). Keywords can have a number of other problems, including: Keywords created by brainstorming only, not sampling and testing Failure to identify jargon of an industry or internal vocabulary of a company Failing to account for misspellings and abbreviations, particularly from phones and PDAs General search terms that bring up too many irrelevant documents Some now suggest that Boolean keyword searches be supplemented with other information retrieval methodologies, like grouping and concept search12. This can increase search results, but may increase the false negative rate as well. Also, these approaches are often proprietary and not as transparent as simple Boolean keyword searching. Courts are beginning to call into question whether attorneys are competent to develop keyword searches in the first place: quot;[Flor lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of ~ v i d e n c e . quot; 'This ~ thinking suggests we may soon see more use of experts in the area of keyword validation and the resulting Daubert challenges as part of cases involving disputed e-Discovery methodology. 12 http://www.lexbe.com/hp/lititech-concept-searching-litigation.aspx I' United States v. O'Keefe, 537 F. Supp. 2d 14,24 (D.D.C. 2008). E-Discovery: How t o do it Wrong (and Rlght!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 21 of 25
  22. 22. How can a party go about doing better than just brainstorming keyword terms? A good approach is to sample and test returns for different proposed search terms. This provides a quantitative approach to estimate how many documents will be returned with different a Quick Keyword Analysis Plaintiffs Keywords Defendant's Keywords Searc h Tern-, Docs Returned quot;10 Search Term Docs Returned % access 247 796 DASNY (company name) 202 5% alarrn 42 1% D~rn~dbry AuIhonty B 1% budget 6!32 19% Authority AN0 party names 139 4% burld ?,&4 78% Cal~rtf AND Bronx 94 3% chanya order @32 24% Hall of Juottce 21 1 % clam 529 14% 'F3rorbx but not Zoo 124 3% delay 243 7% drnm~af 107 3% ele$ator 35 1% elecIr~cal 3 9 8% s~dewalk 1 d 5% 9 bPtB THClilSANDS MORE iI I Total Search Return 3.~04 94% I Total Search Return 561 16% I Arnount o f Data in Analysis Size (C43) 51 3 N o of F~les 3.728 keywords. The next step is to take a sample of returned disputed keywords to determine through manual review the percentage of relevant documents brought back with the search. An approach like this helps to give magistrates and judges a better basis to include or exclude disputed search terms. Decide on the Best Review Format There is a lot of debate now as to the best format of ESI to request in discovery. The choices are to convert to PDF or TIFF or keep the documents in native format for review. The decision depends in large part on capacity of the document review software to be used and how the process is managed. TIFF is the older Review Format Options standard and is still I 1 Advantages Disadvantages most used in large I I >Busmess standard Searchable 1 productions. A I >Can be searchable >Redact~on tr~ckler IS disadvantage is that , >Can Bates stamp on page TIFF files are raster I Image I >Best for some software >Redact~on error less 1 >NOOCH in document images (made up of 1 TIFF bawd prone / 1 zRequ~res speclal software to read wfth searchable text pixels like a ' >Can Bates-stamp on page , photograph). The commonly used TIFF 1 e.g , Word, >Includes metadata >Requires original applicat~on or formats are not Native 1 1 >Some files don't convert 1 web viewing software 1 to PDF/TIFF well >Cannot Bates stamp at page level searchable. This is j >No conversion charge handled by creating a E-Discovery: How t o do i t Wrong (and Right!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 22 of 25
  23. 23. separate text file for each TlFF file using OCR (optical character recognition). Special TIFF-based litigation support software associates the image TIFF and matching text file for searching and viewing. But these documents are not very portable and anyone who wants to work with the files must have the required viewing software, usually older litigation support software systems first developed before PDF became commonplace in litigation. PDF files are becoming more popular for e-Discovery productions. PDFs have the advantage of retaining the raster image but also can embed searchable text in the file, known as 'text under image PDF' or 'searchable PDF'. The text in this type of PDF can be either transferred from a text-based document as part of the conversion process to PDF (e.g., from a Word document), or created by using OCR with scanned documents. PDFs are portable in that they can be transferred and viewed in a variety of contexts without special software, other than the free Adobe AcrobatTM viewer or competitive PDF viewers. Native review refers to conducting a document review in the original format maintained by the custodian. While still a minority approach, it is gaining proponents.'4 The chief advantage of native review is avoiding the processing cost of converting ESI to PDF or TIFF. One disadvantage is that the document review may be more time-consuming and difficult than if the documents were converted first to PDF or TIFF. This problem has been lessened in recent years with the newer generation of litigation document review software that is designed to work well with documents in native format. These programs allow for automatic conversion of common native file types into viewable HTML renditions that can be reviewed without needing to open the reviewed documents one at a time in the applicable native application. Even if the decision to convert ESI to PDF or TIFF is made, certain document types do not convert well and should also be available in native format. Excel XLS is the most common example of a file type that often does not convert well for document review. Possible problems include pages not formatted for printing, the need to see formulas as well as values, filtered data, etc. But the problem is not limited to spreadsheets and many other file types may need intermediate processing to view in PDF or TIFF or not be viewable at all except in the applicable native application. Special Considerations for Email in Document Review As discussed above, attorneys are relying more on text searching and less on manual review. This is especially true for email, which often makes up a majority of ESI, and may comprise the most important EST in business disputes. Litigants often cull down email repository to a more manageable size through keyword searches. When doing productions that rely on text searching to identify responsive and privileged documents, it may be important to ensure that the entire data set is searchable. Searching in native format (no conversion to PDF or TlFF plus associated text files) works well with the 14 Ralph Losey, Should You Go Native?, http:llralphlosey.wordpress.com/2009/02/17/should-you-go- native/ E-Discovery: How t o d o it Wrong (and Right!) Gene Albert, Lexbe.com 22quot;d Annual Technology Conference, University of Texas at Austin Page 23 of 25
  24. 24. body of an email as it is text-based and easily searchable with a variety of tools. Email attachments, however, are more complicated. It is not uncommon for 10% or more of attachment files in native email collections to be non-searchable for a variety of reasons. If these attachments are not converted to a searchable format they will be missed in a keyword search. Reasons why email attachments may not be searchable include: Scanned files and faxes included as attachments Image based PDFs, JPEGs Compressed files (ZIP, RAR) Password protected files Unrecognized file types, other non-searchable native files This is a knotty problem that deserves some consideration at the outset of a case before e- Discovery commitments are made. There are three choices as to how to handle email repositories in native format (e.g., Outlook PST or MSG files): Review all email and attached documents manually for responsiveness and privilege. This can be very expensive in attorney time and still miss documents that would be found in a keyword search. Convert all emails and attachments to a searchable format (searchable PDF or TIFF plus associated text files) with OCR and use keyword searching. The attachments can be joined to the original email or saved as separate files and associated with the original email. Conversion to PDF or TIFF with OCR will provide the best result from a searchability perspective but introduces a higher processing cost. Keyword search in native format without converting email attachments to a fully searchable file type with OCR. This is less expensive than the other choices, but may miss a substantial percentage of responsive or privileged documents in the form of non-searchable attachments. In any case the approach should be discussed and agreed upon early on in the process so that the attorney is not criticized later for missing discoverable evidence. Conduct the Review Once ESI has been collected, culled and processed, it is available for attorney review for substance and privilege. For cases involving large collections of electronic data, the attorney will want to use a well-designed review tool to efficiently work through the document collection. The review process involves looking at documents responsive to searches, reviewing for key issues and responsiveness, and identifying or confirming determinations of privilege and confidentiality. E-Discovery: How t o do ~t Wrong (and Right!) Gene Albert, Lexbe.com 2Znd Annual Technology Conference, Un~versity Texas at Austin of Page 24 of 25
  25. 25. 1 / I F * 125% - d, EJ9 _- I_ vsx X DoFaapb7 OStdnddrd -- LNVOICE Ortxt lzGZizl *+ Wemqd0rldl.RwNext 22. Dr.cc.111kk.r 2004 ,hiquot;, lkwatenng 124; SW Orange A*r.nuc a+ @ Dot Disc - - Nstcs Fa? 5e-e % : ?- n- o ,2~& p ~ t Plantatton Counlr. BeFlora oiscmay 429-430-q605 Ropz/17na)9 ~ ~ ~ p a n u v e b I Kumber ,5565 D Claw- & e d w om- Wd.Robrt LFJconirdentral -quot;-----------i f // ~ Dcseription - ---f-quot;=--1 3~u.m~~ *E , ~ ~ ~ - ~ ~ p t B c e h o oiisqemhly l- 3~ton jei ------ n . b k hoist I L --.- L- - -] ] { c - ' f ~ ] f b r e i g h~t a t 1-rj T* I~~~~ HOL.~ & l?-'?-'W r't two arhn~chlans ] i I we. ~ 2 , zow ,[12-22-2004 1; .Manltfter -1- 1 ' DDLSOVLe m ar hr -L R Green M 1: l DUE' I TOTAL , S 1219 00 szE zef;&&*;; TW mv 2 ew n I -.- - - Chsrvtathr* W t q R m O e a l Please remit thc [oral amoiint due wthm 50 day$ *- E -- -- c*c-F=+4z --____.-. 1 hank Sou. =-w* -- .- --- --F=wq L -. -- - .- CugmmC4id5 AtW-vc- .--..-.-_______ Conduct the Privilege Review and Prepare the Privilege Log In the In re Fannie Mae Securities Litigation case, privilege review consumed most of the $6 Million spent. It is not unusual that privilege review and log generation will constitute a large portion of a discovery budget. While claw-back agreements are available under FRCP 26(b), attorneys are rarely comfortable with letting a discovery production out the door without some additional attorney searching or manual review for privileged materials. The consequences of disclosing privileged materials may be too great, even if protected from inadvertent waiver. Computerized review tools help here by making the review more efficient and then automatically generating the privilege log. V. Conclusion Failure to understand and maintain control of e-Discovery processes can lead to a number of bad consequences. At minimum, the attorney can be embarrassed and lose credibility with his or her client and the court. But shortcomings can also lead to sanctions as even inadvertent e-Discovery mistakes can have serious negative ramifications as they may violate e-Discovery related representations and make it appear (even if not true) that the attorney and/or client has something to hide. E-Discovery certainly can be managed properly, but it requires a solid understanding of the underlying processes and technology and diligent project management throughout the case. This paper is ava~lable Lexbe.com at to http:l/w.lexbe.com/hd litilawhostedleDiswverv-How Do it Wrong (and Riahthdf E-Discovery: How to do it Wrong (and Right!) Gene Albert, Lexbe.com 22ndAnnual Technology Conference, University of Texas at Austin Page 25 of 25

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