Best Practices in Discovery Planning: The Discovery Response Team

Establishing an effective discovery response team (DRT) can help your organization greatly reduce the costs associated with discovery. A DRT can also reduce the impact of litigation on daily business operations by assembling internal expertise and domain knowledge – particularly of key personnel and the IT infrastructure – and driving repeatable processes that will increase the efficiency and quality of discovery responses. This white paper discusses the roles and responsibilities of the DRT and recommends best practices for building the team, including tips to help set the stage for the team’s success.

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Best Practices in Discovery Planning: Establishing Discovery as a Business Process

For organizations in highly regulated or litigious industries, responding to legal and regulatory matters has become a normal course of business. Establishing discovery as a business process, rather than reacting to discovery matters on an ad hoc basis, enables organizations to ensure a complete and defensible process that also controls costs and reduces business disruption. This paper details a best-practices approach for establishing discovery as a business process.

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E-Discovery Roundtable: Buyers’ Perspectives on the Impact of Technology Innovation

Today’s fast evolving technology landscape is challenging the ability of e-discovery professionals to keep up. From cloud computing and social media to technology-assisted review, the impact of technology innovation on the discovery process and how organizations are adapting to the changes were the focus of a recent roundtable discussion hosted by Integreon. Viewpoints and recommendations from the corporate and law firm participants are summarized in this recently published report.

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Document Review Best Practices: 8 Steps to a Defensible and Efficient Review Process

Document review is a critical component of the e-discovery process and a subject that I often speak and write about. Resource-intensive review in particular is an area that gets a lot of attention, especially with many law firms and corporations focusing on cost containment of the discovery process. We’ve worked with many clients to help them balance simple and expedient solutions with effective and defensible processes.

On Tuesday, July 19th, I will be joining with Vince Neicho, Allen & Overy’s litigation support manager, to present a webinar discussion of a best practice framework for review, incorporating real-world, experience-grounded advice for the practitioner and client. We have worked closely with Vince on a number of challenging exercises and so I am honored to share the virtual dais with him.

If you are interested in learning more about document review best practices, I hope you will join us for what is sure to be a lively and informative session. Learn more or register for the webinar here.

Update: A replay of this webinar (recorded on July 19th) is available here.

Integreon Launches “Top 5″ Podcasts, First 3 Cover E‑Discovery Need-to-Know Tips

Integreon has launched a new program to provide informative podcasts covering “Top 5” tips on a range of topics for legal, business, and technology professionals. The first three podcasts feature Integreon’s Jeff Fehrman, VP of consulting and forensics, on the following e-discovery topics:

 

Top Five Things You Need to Know About Social Media and e-Discovery

Complying with current e-discovery rules is challenging enough, but social networking sites are creating new headaches for corporate compliance and legal departments. This podcast offers advice for how to incorporate social media into your e-discovery strategy.

Listen to the podcast

 

Top Five Tips for Reducing the Cost of Discovery

Many organizations still find it difficult to efficiently uncover relevant data for legal cases, resulting in rising costs. This podcast offers tips to help organizations rein in cost by better managing the discovery process.

Listen to the podcast

 

Top Five Things to Consider Before Your Meet-and-Confer

Under the Federal Rules of Civil Procedure, the first 120 days of litigation are the most critical in the lifespan of the case. You have a small window of opportunity to leverage the meet-and-confer requirements to your advantage or lose the opportunity to collect the data required to effectively litigate your case. This podcast offers suggestions to help maximize the effectiveness of meet-and-confer.

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Cloud Computing: Fact versus Fog

Cloud computing has gotten a lot of press in recent years and, as is usually the case with emerging technologies, the media attention has been accompanied by misinformation, conflicting viewpoints, and FUD (fear, uncertainty, and doubt).

It can be challenging to make sense of it all and get the right information needed to make informed decisions. Grail Research, an Integreon company that conducts and delivers high-end custom market research, recently issued a report that helps clear the air by exploring the current state of cloud computing, obstacles to business adoption, and expectations for the future.

The report, “Cloud Computing: Fact versus Fog,” is divided into three sections, each geared toward delivering insights that are critical to helping organizations make good cloud computing choices.

• Foundations of Cloud Computing: Provides the background required for intelligent evaluation of cloud-based systems, including definitions, deployment models, market growth, and service delivery models.
• Obstacles and Considerations: Delivers key insights – including adoption drivers; barriers to major adoption; security, privacy, and other compliance concerns; pros and cons based on company size; economic models and hidden costs; and “green” considerations – to help develop appropriate cloud strategies.
• Future of Cloud: Forecasts evolutionary changes in cloud technologies, consolidation in the ecosystem, initiatives to address security concerns, and changes to business models and offerings.

This report is a “must read” for those concerned about risks of cloud computing and for anyone looking to adapt to and take advantage of Internet-based, on-demand computing.

To download a copy (PDF) of this complimentary report, click here.

Document Review Best Practices – Pushing the Outside of the Envelope

This is a live blog post from Legal Tech NY 2011. Foster Gibbons, Vice President, Legal Solutions (Global Lead / Document Review), Integreon presents on:

“Pushing the outside of the envelope” is an aeronautics expression that implies taking design, implementation and execution to the next level through performance improvements in technology and technique. This concept is mirrored by best practices in the legal realm which imply a repeatable standard that delivers the most efficient, effective result. This session will help legal professionals understand better how to define consistent practices and processes for managing review in the context of legal discovery and in a manner that balances efficiency, effectiveness, and adaptability for leveraging technology.”

Session notes:

Introduction. Lawyers who perform document review apply legal know-how but are not practicing law; they act under the supervision of licensed lawyers to determine if documents are responsive and if they are privileged.  The goal of the review team is to approximate as closely as possible the judgment of the case lawyer who knows the most about the case.

The old practice was to put a room full of junior associates to work reviewing boxes of documents.  They might start with 100s of boxes.  Their goal was to winnow the collection down to a few boxes that more senior lawyers would read in more detail.  The mid-level lawyers would further winnow the collection to a relative handful that the partner would review and use.

The process today is similar except the equivalent is 100-million boxes of paper. There is no way humans can review all. So it’s critical to use technology to winnow the collection. But this has to be done properly.

The three goals of the document review are to

1. maintain quality - correct and consistent results; the selected docs must match with senior counsel’s view of the case.
2. cost containment - use appropriate tools (e.g., workflow), winnow the collection intelligently
3. defensibility - this means minimizing risk of sanctions because of errors in discovery process

Best practices in document review reflect a point in time, the state of the art in the most appropriate use of technology. “If there is a lot riding on the outcome of litigation, there is a lot riding on the manner in which discovery, and by extension, document review, is conducted.”

Document Review Models. There are several models for conducting doc review today. The old model of armies of junior associates is no longer effective; clients are not willing to pay junior associate rates for this task. “Staffing model” and “managed review model” are two common models today. In the former, it is up to the law firm to select and manage reviews, typically hiring staff through an agency. The law firm must design the review process, and develop the appropriate training for the review team. In the latter, a vendor provides a review team, facilities, tech support, and project management. The vendor shares responsibility with counsel for managing the process and defensibility.

Best practices in document review include tailoring the project plan to counsel’s specs, following current industry practices, vetting people appropriately (e.g., reference checks and use of lawyers), maintaining appropriate metrics on performance and quality, and providing the review team comprehensive, substantive and platform training.

Workflow deserves special consideration. The simplest is a “linear” review, where every document is reviewed in the order in which it is ‘found’. This is not a good practice. It is better to prioritize the review by factors such as custodians, date ranges, or document types. It may also be necessary to assign documents by substantive type, for example, scientific docs may need to be reviewed by those with science training, so this requires matching document substance to reviewer qualification.

Quality control means approximating as closely as possible lead counsel’s judgment about documents. It also requires internal (across the review team) consistency, using formal statistics to ensure high quality results, and tracking performance of all reviewers.

Communication should be conducted on a formal schedule. Especially early in the case, the review team should be in regular contact with lead counsel. There will be many questions and sample documents for counsel to review. This helps refine the criteria for reviewing documents (and adjusting the review documentation).

Documenting the review is critical for being able to defend the process. For example, you need to be able to explain / justify custodians chosen and review criteria. These and other decisions must be documented in real time. The documentation binders end up being quite thick. If opposing counsel challenges the production, having thorough documentation is essential to defend the process and outcome.

Judicial Roundtable from Georgetown Law Advanced E-Discovery Institute

Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session Judicial Roundtable.  The panelists are Hon. John M. Facciola, Hon. Francis M. Allegra, Hon. James C. Francis, Hon. Paul W. Grimm, Hon. Elizabeth D. LaPorte, Hon. Nan R. Nolan, Hon. Andrew J. Peck, Hon. James M. Rosenbaum (Ret.), and Hon. Joseph R. Slights, III.

[Note: this session had a wide-ranging discussion covering many issues.  This post reports only a subset of the discussion.]

Q: Has the duty of a lawyer to manage client changed with respect to e-discovery?

The ethical duties have not changed; the rules have not changed.  It’s become harder to comply because of the complexity of e-discovery.

Q: How should a lawyer help a court come up to speed on e-discovery issues?

One judge suggests that courts take into account the resources available to a lawyer and that expectations for lawyers in small firms may be lower than for lawyers in large firms.

Q: Should there be another bar exam or certification to test lawyers’ technical / EDD competence?

One judge argues that there are many certifications for other specialized aspects of law practice.  So it would be reasonable to have certification for technical competence.  Another judge points out that there is no distinction between discovery and e-discovery, so another judge disagrees because that would mean every lawyer would need the certification.  Another judge suggests this should be a function of continuing legal education (CLE).  An audience member remarks that there are organizations offering EDD certification (referring to them as selling snake oil).  Another judge worries that such a big focus on EDD would take away from the real goal of litigation, which is to resolve cases, so why focus on only one element.

Q: What are your views on new technologies, e.g., virtualization or cloud computing,  that corporations are adopting.  With virtualization, the “server” disappears after use.  With cloud computing, hard to know where data is.

Technology will always outstrip ability of the courts to react quickly.  Our judicial system is, by design, meant to move slowly.  One judge suggests that some software is designed not to leave a trail (i.e., intermediate drafts).   This can be benign or ‘nefarious’ – it depends on the context.  Changes in technology do not change the obligation to preserve.   As long as a system has good faith basis for routinely deleting data, it’s likely that will be a safe harbor, unless it can be shown that party was on notice that they should have preserved data.  Can imagine preservation orders as applied to cloud providers will create difficult issues and may, over time, cause changes in data storage practices.

Another judge notes that, in the old days, people threw away paper copies and hand-scribbled notes.  The implication is that there is nothing wrong, generally speaking, with deleting / destroying intermediate work product.

Q: Experience with non-party destroying ESI and what should a party do if it learns of this and can a party be sanctioned for this?

Information was in possession of a non-party.  The non-party asked a party if it was ok to destroy the information, who approved it.  That party was then sanctioned because of true culpability by party.  But absent culpability, not so clear.  This depends on local law.  In some jurisdictions, parties have obligations to try to preserve 3rd-party data.  Some states, only a few, have torts for spoliation – these can create a cause of action against a 3rd party.

Technology Focus – Databases from Georgetown Law Advanced E-Discovery Institute

Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session Technology Focus – Databases.  The presenters are Craig D. Ball and Prof. Ophir Frieder.

Craig Ball Presents

Databases run the world, from the cell phone network, to delivery services, to retailers, to social networks.   With respect to e-discovery (EDD), the state of the art around databases is where it was for e-mail about five years ago.  Today, EDD professionals can have sophisticated discussions about e-mail; we are moving in that direction with databases.

Database factoids:

• Documents don’t exist in databases until we create them.
• 69% of corporate data is structured.
• 80% of the content of structured databases is, in fact, unstructured, meaning character large objects (CLOB) or binary large objects (BLOB).  For example, databases can store video or text documents.
• Edgar “Ted” Codd wrote, in 1970, “A Relational Model of Data for Large Shared Databanks”.  He created a notion that allowed combining previously separate silos of information.  He invented the concept of database relational tables.  Craig Ball mentioned that apparently IBM initially scoffed at the idea.
• The novel notion of databases:  One instance of data populates all references to it.

In e-discovery, it makes not sense to ask for the database – they are generally way too big to get the whole thing.

When seeking discovery of a database, reject these forms of production:   paper print-outs, TIFF or PDF images, table dumps, reports without delimiters, any non-fielded format.  Always ask for the “system catalog.”   The system catalog, data dictionary, and entity relationship diagrams  lays out the structure of the database and other information such as permissions (who can access which information).   What you need to be prepared to discuss about databases at the meet and confer session (negotiating discovery with opposing counsel):

• Names of relevant databases (get full names and acronyms)
• Purpose
• Platform (e.g., Oracle, IBM, or Sybase) and query language
• Data range and size
• User groups
• Available system documentation
• Standard reporting and export capabilities
• Preservation

Lessons Craig Ball has learned form database cases:

• Never assume that your query retrieves all potentially responsive records.  Make sure that whoever conducts the search has appropriate permissions.  Whoever is assigned to run your searches may, in the ordinary course of litigant’s business, not have very broad permissions and access.
• Never assume the DBA (database administrator) knows what he/she is doing.  Many DBAs have limited knowledge of all the features and functionality of their database software.

Ophir Frieder Presents

[Speaker bio from program materials:  Professor and Chair of the Department of Computer Science at Georgetown University.  He frequently consults for industry and government and for key intellectual property litigation; his systems are deployed in commercial and governmental production environments worldwide.]

Lessons learned from case experience:

• Don’t confuse the physical with the logical.
• Be careful what you ask for – you might get it.  Lawyers typically don’t need “all the data”, source code, or a core dump.

Early Evidence Assessment and Strategies for Search, Retrieval and Review from Georgetown Law Advanced E-Discovery Institute

Integreon is a sponsor of the Georgetown Law Advanced E-Discovery Institute, widely recognized as the leading educational conference for electronic data discovery (EDD). This is a live blog post of the session Early Evidence Assessment and Strategies for Search, Retrieval and Review.  The panelists are Laura M. Kibbe, Vincent M. Catanzaro, Sherry B. Harris, Thomas M. Mueller, Steven W. Teppler, with Ms. Kibbe moderating.

This panel will focus on early case assessment (ECA).   ECA is not a fire drill or something you do once.  It’s an ongoing process that must be done by lawyers.  It can happen ‘way in advance’ of a law suit being filed.

So what is ECA?  It’s not something you buy, it’s something you do.  It’s what you do as a lawyer to decide case strategy, to understand the matter, to assess the facts, to determine if the case is strong.   From an in-house perspective, it can be a strategic case assessment because it is not always done just early on.  It’s planning for a case (e.g., determining resources and time lines and budgets).

E-discovery is not necessarily the most important or first thing in ECA.   To begin, you need to look at facts, jurisdiction, business issues.  The first step of ECA is to determine the risk factors – that will drive how much you invest and your approach to discovery.

ECA can start very early in life cycle for businesses.  For example, a pharma company might start ECA as a new drug goes into the first stage of clinical trial, well before it even is on the market.  Another panelist says this can be very dangerous because it may create an obligation to preserve too much data.

Audience member:  shouldn’t ECA be an economic analysis first and foremost; what is the net cost of the case; what is at stake, what will it cost to settle or to pursue.  Audience member says lawyers are not good enough at taking the business perspective.   Panel:  ECA should take into account business factors and risks.  Further, lawyers need to say what the possible legal cost is of not moving forward.  [RF: what sounds like a potential disagreement is really not - everyone seems to be saying figure out the business risk as early as possible.]

What do you do with the data very early in the case?  Clients are typically reluctant to invest much to manage the data early on (except perhaps in serial litigation).   Clients don’t want to do a data analysis until after they have filed a motion to dismiss.  Instead, they involve executives involved in matter and provide their e-mail to outside counsel for analysis.

ECA differs for plaintiffs and defendants.  The former thinks about defendant not preserving data and what their own client does to meet obligations.  Plaintiff wants to assure that the relevant data set will be maintained properly.  Plaintiff has to think about where defendant might store all its data.  This is not necessarily because of any effort to hide data but rather there are so many places data can be stored.  That said, as plaintiff’s lawyer, a big worry is that defendants who have control over data may destroy it.

ECA depends on clients.  Some clients have tools and processes to do a quick and easy ECA.  It also depends on corporate budget.

Is ECA the same for all clients?  Not necessarily.  Under principles of proportionality, obligations may differ.  But smaller businesses still have an obligation to preserve data.   Clients who are sued more regularly tend to be more interested in ECA.

How do you decide how many custodians’ data you should put in the scope of ECA?   You need a particularized analysis.  For example, in an antitrust matter, you might start with every employee who touches pricing.  But you can narrow down the number of custodians based on employee roles and likelihood of being involved in the matter.   The lawyer, to discharge duty of competence, must understand the client’s technology and data infrastructure.

Is there a duty to do something with data you initially include in the scope of ECA?  Panelists disagree with best practice for what to do.  There is some sentiment that you don’t have to do anything; and some that you have to start processing or look at it.  Said another way, is ECA a separate tool and process from “regular discovery”.   Clients can choose to rely on what their employees say early on; they don’t necessarily have to dive into the data.   The question is whether, at an early stage, do you believe interviewees [custodians] or if you have to do spot checks of their data.  That is a case-by-case determination.

Need to distinguish the duty to preserve and ECA.   You can or may need to preserve a lot of data.  As part of ECA, however, you are not necessarily obliged to look at all the data.  This goes to the merits of the claims, potential scope of claims, and believability of the employees.   These two duties can overlap but don’t necessarily, especially in state courts where the duty to preserve may not be triggered by the reasonable anticipation of litigation.  [RF: on preservation and ECA, there seem to be multiple and perhaps hard to reconcile points of view.]