Avoiding E-Discovery Disputes
And keeping the Judge Happy
Judge David Harvey
LLB Auckland
M Jur Waikato
PhD Auckland
A Judge of the District
Court
Auckland
New Zealand
Judge David ...
Topics
• The nature of the E-Document
• The E-Discovery Process
• Counsel’s Obligations
– The checklist
– The Electronic B...
TECHNOLOGY
Current State of Documents and Data in E-space
• Paradigmatic
change
challenges our
assumptions
about and
expectations of
information.
The Digital Paradigm
• The digital paradigm is
so revolutionary that
it undermines some of
the values and
assumptions that
underlie traditional...
The Document in E-Space
Tangible Material
• Discovery and searches
are based on the quest
for information
• Information on paper –
easy for a read...
Nature of an “E-Document”
• An e-document is not “out there
somewhere” like a book in a
library
• An e-document is a “proc...
Technology and “Functional
Equivalence”
• Involvement of technology
makes the e-document
paradigmatically different
from h...
• Why are we
referring to
“documents”
• Reflect a past
paradigm where
information was
stored on paper
• Information is a
b...
ELECTRONIC DISCOVERY
What is E-Discovery?
• The methods by which the parties use electronic
means to assist in
finding, identifying, locating, ...
Understand the Process and Purpose of E-
Discovery
Initial Objectives
• A pre-existing good information management
system is an excellent starting point
• Reduce the volume
...
Why is important to know this stuff?
• Lawyers and Judges MUST be aware of the
elements of the E-Discovery process
• Lawye...
Why is this so?
• Look at the Checklist and the Electronic
Bundle Protocol
• Do you REALLY think you can avoid
understandi...
The Checklist
The New Zealand
Checklist
Designed to assist the parties carry out discovery
The checklist itself highlights ways to reduc...
Underlying Premise
• Co-operation between counsel to limit
discovery to what is
– Reasonable
– Proportionate to the issues...
Assessing Proportionality
• Review pleadings to identify document
categories
• Identify
– Location of documents
– Document...
Likely Volume and Cost
• Estimated cost of discovering identified
material
• Includes
– document review for
• privilege,
•...
Assess and Discuss
• The ongoing responsibility of co-operation and
conferring
• Is the estimated cost proportionate to th...
Extent of Search
Two Points
• Identify whether methods listed in the
tailored discovery provision may help locate
electronic material
• Con...
Tailored Discovery
Consult, Confer and Co-operate
• Try to agree to a proposal for a discovery
order with respect to:
– Categories of documen...
Methods and Strategies for locating
Documents
• Agreement on methods and strategies that will result
in a reasonable and p...
Listing and Exchange
Listing and Exchange Protocol
• Protocol provides for way in which
information should be presented and
summarised
• May be...
Listing ESI
• Listing ESI requires different considerations
– Native file format
– Extracted metadata
– Use image format o...
Presenting Documents at Trial
Consult and Confer - Again
• Must consider how documents will be used
efficiently
• Whether an electronic bundle should be...
The Electronic Bundles Protocol
2013 Practice Note
• A guideline for lawyers and judges
• Intended to encourage and facilitate use of electronic
bundles
• Sets out the class...
Observations
• Protocol applies to civil and criminal
proceedings
• Emphasis on counsel’s duty to co-operate
• In PDF form...
• Mirrors the “Eastlight File” format of
hardcopy production
• Uses language of the hardcopy
paradigm
• Adobe Acrobat and ...
• Keyword Searching
• Duplication and Exclusion
• Concept Searching
• Clustering
• Document Prioritisation aka Predictive ...
• Key word searching is a fairly blunt instrument but
may be useful for Early Case Assessment
• Key words create a black o...
Involvement in Effective Keyword
Searching
• Cannot proceed from an
uninformed perspective.
• Examine the approach of the
...
Duplication and Exclusion
• The process of identifying and removing
duplicate documents from a collection of
documents so ...
Duplication Problems
• In the paper world the process of
duplication required visually sighting
documents
• Some lawyers a...
Concept Searching
• Useful when large volumes have to be examined
and the search attempts to match results with
the query ...
Clustering
• Clustering groups documents by identifying
conceptually alike documents and the technology
breaks them up int...
An Example
• Someone creates a word doc, then prints it
PDF, another person opens the PDF, cuts and
paste the text of the ...
Near Duplicate Identification
• Not referred to in the New Zealand checklist
• Near duplicate technology identifies docume...
Email Threading
• Many emails contain earlier message and are
constructed in the form of a thread or a chain
• Email threa...
Predictive Coding in Practice
Most expensive component of any
document production remains the
lawyer review
Keyword search...
Native File review
• Allows lawyers to view documents in the format
in which they were intended to be viewed
• Spreadsheet...
ADVICE FOR THE BAR
Knowing Saves Time
Ensure that both sides know
something about their clients
systems such as:
• Know and verify how to man...
• It is implicit that all parties including the judicial officer
should have the knowledge of the benefits, advantages
and...
Meet and Confer
• Critical part of the
process
• Assessing
proportionality
• Determining extent
of search and
strategies
•...
Focus on the Facts and Issues
• Identify the issues to determine
relevance
• Then focus on how e-discovery
facts can achie...
Remember to
educate and listen as
counsel and parties
are not likely
technology or e-
discovery gurus.
For E-Discovery spe...
• There are ways utilising meet and
confer, conferencing, careful case
management, scheduling conferences and
time tabling...
• New Zealand and England use variants of a checklist or
questionnaire.
• The checklist provides a very useful roadmap to ...
Working as a team
• Meet and Confer is one aspect
• Case Management Conference brings in the
other players
• Judge can ass...
• Use the case management
conference actively to superintend
the discovery process
• Encourage narrow targeting of
request...
• Always encourage co-operation and
continually remind the parties of the
necessity for reasonableness and
proportionality...
• Is the scope of discovery reasonable in the
context of the case
• Is the scope of discovery proportional to the
matters ...
What is
Proportionality?
• The relationship
between cost and
value in the
proceedings
• Is the extent or
manner of the
dis...
• Focus and reduce the issues to be determined
within the framework of the pleadings.
• Proper Case Management will distil...
Looking Ahead
• Particular methods of discovery will
depend upon the case in hand
• Different products may be more
relevan...
Avoiding e discovery disputes
Avoiding e discovery disputes
Avoiding e discovery disputes
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  • It is implicit that all parties including the judicial officer should have the knowledge of the benefits, advantages and disadvantages of the various documents sorting and document review technologies that are available At times, depending upon the nature of the documents and their extent, such knowledge or awareness is going to have to be detailed and specific May have an impact upon a tailored discovery order
  • Parties should be prepared to provide greater information if there is a dispute about proportionality.There is a difference between proportionality and taking ‘short-cuts’.What is the cost and time that make the approach disproportionate? Lawyers sometimes say they did not have time to do all of this work prior to discussing with the other party. They usually just say it is not proportionate as an excuse.
  • Avoiding e discovery disputes

    1. 1. Avoiding E-Discovery Disputes And keeping the Judge Happy
    2. 2. Judge David Harvey LLB Auckland M Jur Waikato PhD Auckland A Judge of the District Court Auckland New Zealand Judge David Harvey has been a judge of the district court in New Zealand for 25 years. He also teaches law and information technology for the Faculty of Law, Auckland University, and has written a text on Internet and computer technology law titled internet.law.nz, now in its 3rd edition. He has written extensively in the field of law and technology and has presented a number of papers both in New Zealand and internationally on law and technology matters. He graduated with an LLB from Auckland University in 1969, MJur from University of Waikato in 1994, and PhD from Auckland University in 2012. His doctoral dissertation was on the influence of a new technology (the printing press) on law and legal culture in England in the Early Modern period. Judge Harvey has an interest on the immediate and wider impact of technology on the law and legal culture. He has co-written an article with Daniel Garrie on New Zealand’s new Discovery Rules and has delivered several presentations on the subject.
    3. 3. Topics • The nature of the E-Document • The E-Discovery Process • Counsel’s Obligations – The checklist – The Electronic Bundle Practice Note • Knowing the Technology • Working as a Team
    4. 4. TECHNOLOGY Current State of Documents and Data in E-space
    5. 5. • Paradigmatic change challenges our assumptions about and expectations of information. The Digital Paradigm
    6. 6. • The digital paradigm is so revolutionary that it undermines some of the values and assumptions that underlie traditional thinking about documents. • Instead we should be thinking about “information”
    7. 7. The Document in E-Space
    8. 8. Tangible Material • Discovery and searches are based on the quest for information • Information on paper – easy for a reader to access that information long after it was created • Tangible – has a discrete physical existence
    9. 9. Nature of an “E-Document” • An e-document is not “out there somewhere” like a book in a library • An e-document is a “process” whereby unintelligible pieces of data – distributed over a storage medium – are assembled, processed and rendered legible • As a single entity, the document is “nowhere”
    10. 10. Technology and “Functional Equivalence” • Involvement of technology makes the e-document paradigmatically different from hard copy. • “Functional equivalence” is used to bring cyber searches into line with hard copy searches. • An electronic document may be seen as “functionally equivalent” in the presentation of information in readable form.
    11. 11. • Why are we referring to “documents” • Reflect a past paradigm where information was stored on paper • Information is a better word • Or perhaps Electronically Stored Information (ESI) if you want precision
    12. 12. ELECTRONIC DISCOVERY
    13. 13. What is E-Discovery? • The methods by which the parties use electronic means to assist in finding, identifying, locating, retrieving, reviewing, lis ting or exchanging documents to satisfy discovery obligations • Rules do not mandate the use of digital tools and methods to find, identify, locate, retrieve or review documents • But such tools and methods, when properly implemented, can lower the monetary costs of the litigation and accord with cost and proportionality
    14. 14. Understand the Process and Purpose of E- Discovery
    15. 15. Initial Objectives • A pre-existing good information management system is an excellent starting point • Reduce the volume • Restrict to relevance • Identifying classes of information – early case assessment (ECA)
    16. 16. Why is important to know this stuff? • Lawyers and Judges MUST be aware of the elements of the E-Discovery process • Lawyers need to satisfy the Court (in disputed cases) that proper processes have been undertaken • Judges need to be able to craft proper directions and discovery orders that recognise the potential (and limitations) of technology
    17. 17. Why is this so? • Look at the Checklist and the Electronic Bundle Protocol • Do you REALLY think you can avoid understanding the technology
    18. 18. The Checklist
    19. 19. The New Zealand Checklist Designed to assist the parties carry out discovery The checklist itself highlights ways to reduce some of the listing and exchange costs - “to reduce unnecessary costs of listing documents parties are encouraged to: a) Use native electronic versions of documents as much as possible; and b) Use the extracted metadata from native electronic documents instead of manually listing documents; and c) Convert documents to image format only when it is decided they are to be produced for discovery; and d) If document images are to be numbered, only number those images if they are to be produced for discovery.”
    20. 20. Underlying Premise • Co-operation between counsel to limit discovery to what is – Reasonable – Proportionate to the issues in dispute – Relevant
    21. 21. Assessing Proportionality • Review pleadings to identify document categories • Identify – Location of documents – Document custodians – Volume of documents
    22. 22. Likely Volume and Cost • Estimated cost of discovering identified material • Includes – document review for • privilege, • confidentiality and • Listing • Is specialist assistance required to help make informed decisions
    23. 23. Assess and Discuss • The ongoing responsibility of co-operation and conferring • Is the estimated cost proportionate to the sums in issue • Might a tailored order help keep costs down
    24. 24. Extent of Search
    25. 25. Two Points • Identify whether methods listed in the tailored discovery provision may help locate electronic material • Consider seeking a tailored discovery order • Proportionality and cost govern criteria – Number of documents – Nature and complexity of proceeding – Ease and expense of retrieval – Significance of any document located in search
    26. 26. Tailored Discovery
    27. 27. Consult, Confer and Co-operate • Try to agree to a proposal for a discovery order with respect to: – Categories of documents to be discovered – should be limited to what is reasonable and proportionate • Subject matter • Date Range • Types of Documents • Key individuals – document custodians
    28. 28. Methods and Strategies for locating Documents • Agreement on methods and strategies that will result in a reasonable and proportionate search – Keyword searches – Other automated searches and techniques to cull douments • Concept searching • Clustering technology • Document prioritisation (predictive coding) • Email threading • Any other tool or technique – Near duplicate identification – Specialist assistance? • Consider a staged approach to discovery
    29. 29. Listing and Exchange
    30. 30. Listing and Exchange Protocol • Protocol provides for way in which information should be presented and summarised • May be modified by agreement in writing • Arrangements for electronic material that contains relevant unseen information
    31. 31. Listing ESI • Listing ESI requires different considerations – Native file format – Extracted metadata – Use image format only if document to be produced for discovery – should be searchable – Only number images to be produced for discovery
    32. 32. Presenting Documents at Trial
    33. 33. Consult and Confer - Again • Must consider how documents will be used efficiently • Whether an electronic bundle should be used • Ensure listing and exchange is compatible
    34. 34. The Electronic Bundles Protocol 2013 Practice Note
    35. 35. • A guideline for lawyers and judges • Intended to encourage and facilitate use of electronic bundles • Sets out the classes of information that may be in EB – Documents referred to in a hearing – Affidavits – Pleadings – Briefs – Submissions – Authorities • Used when “common bundle” would exceed 500 pages
    36. 36. Observations • Protocol applies to civil and criminal proceedings • Emphasis on counsel’s duty to co-operate • In PDF format • Must be searchable • Folders used within the bundle
    37. 37. • Mirrors the “Eastlight File” format of hardcopy production • Uses language of the hardcopy paradigm • Adobe Acrobat and Foxit Phantom PDF both allow information ordering by tabs
    38. 38. • Keyword Searching • Duplication and Exclusion • Concept Searching • Clustering • Document Prioritisation aka Predictive Coding • E-mail Threading • Near Duplicate Identification • Native File Review Technology and E-Discovery
    39. 39. • Key word searching is a fairly blunt instrument but may be useful for Early Case Assessment • Key words create a black or white scenario based upon whether or not a document contains a word or does not • The difficulty with key word searching is that it may result in irrelevant documents being identified because the key word selected may have different meanings or context to what is desired • Ideally the construction of the search string or key words should be discussed with other parties so that the key words may be agreed • Because of its limitations, key word searching is not an ideal method of cutting and filtering documents and other automated searches may be preferable Search – Keyword Searches
    40. 40. Involvement in Effective Keyword Searching • Cannot proceed from an uninformed perspective. • Examine the approach of the parties • How did they go about keyword selection and search construction • Is the dispute about definitions of the keyword search or something else • If judge is required to adjudicate a keyword dispute consider a mixed process – Sampling and testing followed by – Manual review
    41. 41. Duplication and Exclusion • The process of identifying and removing duplicate documents from a collection of documents so that one unique copy of each document remains • A cryptographic hash function such as the message digest algorithm five (MDA5) may be used to generate a digital fingerprint for an electronic document. • The digital fingerprint of a document can then be electronically compared against the digital fingerprint of any other document to determine whether the documents are exact duplicates • Duplication may also be implemented by using a cryptographic hash function applied to a group of documents
    42. 42. Duplication Problems • In the paper world the process of duplication required visually sighting documents • Some lawyers are still using the same practices that they used when reviewing paper documents adding unnecessary cost and burden to the discovery process • It is not unknown for the document review process to be carried out by printing out hardcopies of all the electronic material and then laboriously reading through document by document to ascertain if there were duplicates
    43. 43. Concept Searching • Useful when large volumes have to be examined and the search attempts to match results with the query conceptually • Methodology is based not upon key words but upon the subject matter of the document paragraph or sentence • Concept searching adds additional information to the very basic key words as it evaluates both words and the context in which they appear
    44. 44. Clustering • Clustering groups documents by identifying conceptually alike documents and the technology breaks them up into groups of similar documents. The technology is calculated through the mathematical relationship between the text context of the documents. • There is an advantage with process in that similar issues can be investigated at the same time instead of reviewing different documents throughout the document review set.
    45. 45. An Example • Someone creates a word doc, then prints it PDF, another person opens the PDF, cuts and paste the text of the document into an email and emails that to third person. • That person then prints the email, and a fourth person scans the email to TIFF. • Cluster analysis could possibly put all of the files together in a cluster - four types of files in the cluster (DOC, PDF, MSG, and TIFF) all because the content is similar.
    46. 46. Near Duplicate Identification • Not referred to in the New Zealand checklist • Near duplicate technology identifies documents that have similar content although not an exact duplicate • The technology groups all of the near duplicates together so they can be reviewed at the same time allowing the reviewer to quickly focus on the differences and move through the documents more quickly and accurately • Email threading and near duplicate technology can be used on paper documents as well as e- documents • The accuracy of the paper documents will depend upon the quality of the text searchable content or OCR – (optical character recognition) when the document is scanned
    47. 47. Email Threading • Many emails contain earlier message and are constructed in the form of a thread or a chain • Email threading technology is essential to respond to the problems caused by these chains • By identifying the end point of the email chain, redundant emails do not have to be reviewed • Threading organises emails into conversations, revealing the context of the communication and reducing review time by 50% or more
    48. 48. Predictive Coding in Practice Most expensive component of any document production remains the lawyer review Keyword search: an imperfect state- of-the art Is there a better culling tool?
    49. 49. Native File review • Allows lawyers to view documents in the format in which they were intended to be viewed • Spreadsheets and databases may only be able to be accurately assessed for their native applications. This can have considerable cost saving • Converting all documents to PDF prior to the document review (rather than after it) will usually add unnecessary expense to the discovery process • It will usually be more efficient to review documents in their native file format and then only convert the relevant documents to PDF for the electronic exchange of documents
    50. 50. ADVICE FOR THE BAR
    51. 51. Knowing Saves Time Ensure that both sides know something about their clients systems such as: • Know and verify how to manage information • Know what systems may be impacted • Know what systems are involved • Bring technical documents including data map
    52. 52. • It is implicit that all parties including the judicial officer should have the knowledge of the benefits, advantages and disadvantages of the various documents sorting and document review technologies that are available • At times, depending upon the nature of the documents and their extent, such knowledge or awareness is going to have to be detailed and specific • May have an impact upon a tailored discovery order
    53. 53. Meet and Confer • Critical part of the process • Assessing proportionality • Determining extent of search and strategies • Checklist premised on meet and confer
    54. 54. Focus on the Facts and Issues • Identify the issues to determine relevance • Then focus on how e-discovery facts can achieve information location • Think in terms of technical specifications • Checklist requirements of assessing proportionality and the extent of the search
    55. 55. Remember to educate and listen as counsel and parties are not likely technology or e- discovery gurus. For E-Discovery specialists
    56. 56. • There are ways utilising meet and confer, conferencing, careful case management, scheduling conferences and time tabling • Judicial Activism Try to avoid a disputed E-Discovery Hearing
    57. 57. • New Zealand and England use variants of a checklist or questionnaire. • The checklist provides a very useful roadmap to assist parties to co-operate over how discovery will be conducted. • The checklist establishes a framework to assess a proportionate and reasonable search for documents tailored to suit the requirements of each matter. • All of these discussions must take place prior to the first case management conference. • The Checklist can be used by counsel and the Judge Use a Checklist as a Guide
    58. 58. Working as a team • Meet and Confer is one aspect • Case Management Conference brings in the other players • Judge can assist in the co-operative process
    59. 59. • Use the case management conference actively to superintend the discovery process • Encourage narrow targeting of requests for ESI. • Consider imposing limits on E- Discovery. • Consider sampling to determine relevance, need and cost of more expansive discovery. • Develop procedures for production of information in usable form. • Develop procedures to deal with inadvertent disclosure of privileged material. • Consider cost shifting if the information sought is not reasonably accessible – may require a consideration of document storage and retention policies of the party in question. Using the Case Management Conference
    60. 60. • Always encourage co-operation and continually remind the parties of the necessity for reasonableness and proportionality. • The obligation to co-operate should be an on-going requirement. • Because E-Discovery is process driven, it is important to cooperate over at all stages of the process, especially the with Keyword searching or using Predictive Coding. For Judges - Emphasise Co-Operation
    61. 61. • Is the scope of discovery reasonable in the context of the case • Is the scope of discovery proportional to the matters at issue Use reasonableness and proportionality as a yard stick to measure stances of counsel on E- Discovery issues.
    62. 62. What is Proportionality? • The relationship between cost and value in the proceedings • Is the extent or manner of the discovery sought justified by the amount and matters at issue in the proceeding.
    63. 63. • Focus and reduce the issues to be determined within the framework of the pleadings. • Proper Case Management will distil the main areas of dispute • May only be about a technological method or the scope of discovery of a class of documents Worst Case Scenario – A Disputed Hearing
    64. 64. Looking Ahead • Particular methods of discovery will depend upon the case in hand • Different products may be more relevant to the different parts of the discovery process • Lawyers and Judges are going to have to become intimately aware of the technologies that are available and of the technological processes that can underlay the discovery process if the advantages of cost reduction and proportionality that underlie the rules are to be achieved

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