by
Babs Deacon on December 30th, 2009 at 2:07 pm :
Comments 001
We already know just how important meet and confer is for electronic discovery. But, do you also know who should be at the meet and confer?
Here’s a pop quiz:
What makes a good meet and confer team?
(a) Crack team of e-discovery professionals
(b) Lone-wolf litigator
(c) Group of attorneys with varying levels of ESI acumen
Choice (a) would seem like a great answer, but unfortunately this answer is rarely the “final answer”.
I recently conducted an informal survey of ten high-profile, experienced e-discovery/litigation support professionals and found that four had never been to a Federal Rules of Civil Procedure (FRCP) 26(f) “Meet and Confer” meeting. The six who had done so averaged 3.8 meet and confers per person since the amended rules took effect in December 2006, over the last three years.
All ten e-discovery professionals believe their firms are missing out on an opportunity to tap their skills and experience. Of course, many practicing attorneys have become proficient in matters involving electronically stored information (ESI) or are themselves e-discovery professionals. However, most litigators can benefit from specialists who spend their days ‘living and breathing’ e-discovery.
A practicing attorney may be a brilliant strategist, possess a photographic memory of case law, and have superlative negotiation skills, but may not know the nuts and bolts of ESI management. Many e-discovery failures are the result of seemingly small details or technological nuances. It is for these details and nuances that the litigation support professional serves as an invaluable member of the case team.
The FRCP implicitly supports the idea that e-discovery professionals should be part of the team. For example, Rule 26(a)2(B) sets standards for data accessibility (“not reasonably accessible because of undue burden or cost”). The e-discovery professional is well placed to help assess the practical factors that govern application of this standard. This person is familiar with not only with various IT infrastructure scenarios but typically has a wealth of experience organizing collections and even personally collecting data from multiple systems. More importantly, the e-discovery professional is usually the person at the firm who is most familiar with budgeting for discovery projects and so understands the associated costs of access.
Beyond the question of accessibility, litigation support and e-discovery professionals can also help lawyers negotiate appropriate search terms. This idea is supported in the FRCP comments, which state:
“The volume of – and the ability to search – much electronically stored information means that in many cases the responding party will be able to produce information from reasonably accessible sources that will fully satisfy the parties’ discovery needs. In many circumstances the requesting party should obtain and evaluate the information from such sources before insisting that the responding party search and produce information contained on sources that are not reasonably accessible…”
Defensible search and care in specifying search terms and strategy have received much press of late. I believe the message is that e-discovery data analytics and sophisticated search are professional disciplines. Certainly Magistrate Judge Facciola has made this point strongly in U.S. v. Michael John O’Keefe, 2008 WL 449729 (D.D.C.) where he noted that establishing the appropriate search terms:
“is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics, and linguistics… Given this complexity, … [t]his 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 Evidence.”
I believe that by “layman,” Judge Facciola meant an IT professional or attorney who is not familiar with the complexity of searching ESI. The layman won’t be conversant with sophisticated Boolean, proximity and meta data search syntax, let alone the pitfalls inherent in different email platforms, file types, storage architecture and data bases.
Magistrate Judge S. Allan Alexander, Northern District of Mississippi, recently “imposed” an electronic discovery expert on defendants in, In Maggette, et. al. v. BL Development Corp., et. al., 2009 U.S. Dist. Lexis 116789 (N.D. Miss. Nov. 24, 2009). Not only making the case for appropriate preparation but participation by someone with the appropriate skills.
Why not have the e-discovery professional attend the 26(f) conference in order to prevent the parties from agreeing to a flawed search method or even a list of overly-broad search terms? The FRCP committee commented:
“Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case. It is often useful for the parties to discuss this issue early in discovery.”
“In appropriate cases identification of, and early discovery from, individuals with special knowledge of a party’s computer systems may be helpful.”
These statements from the FRCP clearly make the case for early participation by an
e-discovery professional. A 26(f) team without an ESI resource may lack key skills, including:
- An understanding of forms of production including paper, TIFF and various native and metadata formats
- Familiarity with document retention policies and litigation hold compliance, methods and applications
- A technical understanding of collection issues including when and how to perform forensic work
- Custodian interview management skills
- Early Case Assessment acumen
- Ability to draft data maps
- Search, data analytics and ESI culling methods
- A focused understanding of IT infrastructure from the production perspective
- Personal knowledge of reliable ESI vendors/service providers
- Project management and deadline management experience
- Budget, budget, budget
If a litigator doesn’t feel comfortable bringing his firm’s e-discovery support expert to the meet and confer, certainly preparation for the 26(f) should be enhanced with the e-discovery professional’s participation. The unfortunate experience of many e-discovery professionals is that the litigator calls up saying, “We’re having the meet and confer tomorrow…”, effectively short circuiting any contribution the e-discovery professional could make.
I feel certain that although not specifically mentioned, the Sedona Conference Cooperation Proclamation encourages attorneys to cooperate within the case team consisting of both inside and outside counsel, paralegals, IT and e-discovery professionals.
The proclamation mentions, in passing, the participation by non-attorneys, in discovery techniques. (“Part III: Tools - Developing and distributing practical ‘toolkits’ to train and support lawyers, judges, other professionals, and students in techniques of discovery cooperation, collaboration, and transparency.”)
In answer to the pop quiz for which this blog post is titled, ‘no’ – you cannot have an effective meet and confer without the benefit of the presence, or at least input, of an e-discovery specialist.
Many industry experts also believe that legal budgets in 2010 are likely to stay flat or continue to shrink. Therefore, in-house counsel remain under tremendous cost-control pressure. A good way to minimize the risk of going over budget is to plan carefully and gain control over the data and search strategy as early as possible. The best way to do that is by bringing in the appropriate experts to the all-critical meet and confer sessions.
[For a lighter look at the future of EDD, see my guest blog post, Delatio Electrics (by Babs Deacon), at the EDD Update blog.]
Filed under E-Discovery (EDD)
by
Babs Deacon on October 30th, 2009 at 12:14 pm :
Comments 000
  The Electronic Discovery Reference Model (EDRM) project, founded by George Socha and Tom Gelbmann, last week held its mid-year meeting in St. Paul, Minnesota. Autumn was clearly evident all around, which I thought an interesting contrast with the EDRM’s “evergreen” approach to ensuring that the Electronic Discovery Reference Model is always current, practical and relevant. The organization brings together a wide range of industry professionals in a non-profit group with the goal of developing (and continually refreshing) “guidelines and standards for e-discovery consumers and providers”. As co-chair on the EDRM’s Evergreen committee, here are my thoughts and observations from our mid-year meeting. |
Everyone was pleased that EDRM has now debuted a new, much easier-on-the-eyes, www.EDRM.net. All EDRM working groups use this site to highlight completed content. The site also consolidates a lot of past research and standards materials. In addition, the EDRM launched a new Twitter feed via @EDRM to facilitate broader awareness about the organization’s on-going activities and accomplishments. (Speaking of Twitter, follow Integreon via @IntegreonEDD and me, personally, via @Babfab.)
The main action during the mid-year meeting took place in the working group discussions. Here are some highlights:
An updated sample e-discovery data set
The Data Set Working Group reported on extensive collaboration with the National Institute of Standards and Technology (NIST), a US-government agency that sets many technical standards, including for the SHA-1 algorithm used in data (file) de-duplication. (And yes, the MD-5 hash is still commonly used as well).
NIST also maintains a database of known operating system files, program files and other non-user file types. Vendors and legal organizations that process data use the “NIST list” to help “separate the wheat from the chaff”. That is, a simple step to reduce data volume requiring review is to eliminate from data sets all of the program and other files that do not contain user data. This process does not rely on file names or extensions, but rather on digital signatures.
Because of collaborating with the NIST, the Data Set group has gained a much better understanding of NIST objectives and processes for determining which file types get added to their list, the methods for updating such lists, and even some considerations for maintaining chain of custody. Understanding why many file types don’t make it onto the NIST’s list has helped the Data Set group develop a strategy for targeting additional file types that should be included in the EDRM’s e-discovery test data set. The term “de-Nist” was used extensively by the working group team leaders in reference to the process for removing non-user files from data sets. Interestingly, the NIST itself had never actually heard this term before, but NIST participants were pleasantly surprised to learn of its existence, as well as its importance as an e-discovery term of art.
Standardized metrics for e-discovery
The Metrics Working Group completed a Quick Start Guide and a number of tool templates, including ones for ROI tools, ECA cost estimation, collection and review tracking, and data mapping. The group helped build some new American Bar Association (ABA) tools, and helped in jumpstarting the Legal Electronic Data Exchange Standard (LEDES) Oversight Committee’s e-discovery code set. LEDES is a data standard that law firms and client law departments use to exchange billing information (“e-billing”); with the growing cost of EDD, the goal is to extend LEDES to include more EDD detail.
Searching
Participation in the Search Working Group has mushroomed, going from twenty-eight to eight-six members since earlier this year. The group’s Search guide has been one of the EDRM website’s most popular downloads. Additional resources are planned in the next six months, including XML formatted Search Specifications and a guide to Search Metrics. This group’s goal is to provide a framework for defining and managing various aspects of search – for example, features used in culling and review – to enable more predictable and complete results.
Introducing the Information Management Reference Model (IMRM) Project
The six month old Information Management Working Group has embarked on an Information Management Reference Model project, as a corollary to the existing EDRM model. The team was excited to report that twenty percent of the participants on this project are Records Management professionals. The group’s work is intended to provide a common, practical, flexible framework to help organizations develop and implement effective and actionable information management programs.
Code of Conduct
The Model Code of Conduct Working Group has been working hard on many thorny issues surrounding professional conduct and has just released a draft copy of recommended guidelines for software and services providers. If I weren’t working so much in the Evergreen group, I’d love to get more involved in this. The work being done here is driving development of standard ethical practices for e-discovery.
Sprucing things up
The Evergreen Working Group has a lot to show for its hard work too over these last six months. Our goal is to keep all content across working groups as current as possible. Our sub-committees got together and promoted as much content from working groups up to the website as possible. We really wanted to tie up loose ends and fill in all the blanks. This work, which is still in progress, falls under the umbrella of the Evergreen Content subgroup and should be completed by the Spring meeting. John Turner (Anacomp) was sorely missed at the mid-year meeting, due to a scheduling conflict, but his work on the Review and Analysis stages was warmly appreciated.
The Evergreen Standardize subgroup got off to a roaring start. This group aims to redesign EDRM.net for easier access to content and also to help EDRM participants stay up-to-date with what’s going on in their respective projects.
And now for the Gossip
- The walleye-cake appetizers were surprisingly good.
- George Socha is building a cinder-block bread oven in his backyard.
- We lost some EDRM participants because of the sagging job market. In light of economic stress, EDRM now waives membership fees for individuals who do lose their job, so hopefully this will help. For more information on EDRM memberships, click here.
- There was some prognosticating about future judicial participation in defining
e-discovery best practices. When it does or doesn’t happen, I’ll hand out the
ESI-Psychic Award.
Filed under E-Discovery (EDD)
by
Babs Deacon on May 26th, 2009 at 3:28 pm :
Comments 000
EDRM, the e-discovery industry’s “think tank”, started its 2009-2010 working year in St. Paul, Minn. with a much anticipated kick-off meeting held May 13-14th. Participants reconvened from the 2008-2009 season to report their progress and to plan the direction for the next twelve months. EDRM organizes its work into distinct project groups and the attendees spend most of the two days meeting with their project teams, organizing and drafting content. Before reporting on my own involvement in the Evergreen project, a few observations from the meeting overall…
EDRM added two new projects this year, Information Management and Jobs. Information Management as its own project was an obvious evolution. It had been part of the Evergreen group but the topic has grown enough to warrant its own focus. The Jobs project is a timely response to the current economic situation plus the addition of recruiters to the attendee mix certainly made for a more entertaining conference. I’m not saying that e-discovery “geeks” don’t like to party, but if I’m going to be in a bar in the Midwest, it’s more fun if Michael Potters and David Cowen are there. Michael for example is a real people magnet and I think he managed to get jobs for some folks staying at the St. Paul Hotel who weren’t even in e-discovery.
Eric Mandel, Director of E-Discovery and Litigation Support with Zelle, Hofmann, Voelbel & Mason LLP and the Chairman of the Model Code of Conduct Project, is back on the law firm side having completed a long stint in vendor-land. The MCOC project is immensely stimulating, having many “nooks and crannies”. The one-year-old group is finishing up their first round of content and has made a plea for comments and suggestions from the rest of EDRM and from the general public. The group’s goal is to develop aspirational voluntary ethical guidelines for electronic discovery providers and consumers that will be similar to those under which attorneys, court personnel and others in the legal space operate.
Eric offered this interesting take on being back on the procurement side, “No matter how much vendors may think they understand their law firm clients, there is no way they can fully empathize with the cost pressures law firms are facing now from their clients. I used to think when I was on the vendor side that if I could sell value, then I could get the law firm to leave price as an afterthought.”
Courtney Gray, VP/Technology/Partner with Nextpoint, “spent a fair amount of ‘cocktail party’ time with the Data Group at ERDM’s semi-annual conference, learning more about their unique challenges. I gained a much clearer understanding regarding securing a pristine data set — one which has not been processed, deduped and culled to the point of uselessness in testing.”
My role in the EDRM is co-Chair on The Evergreen Project, one of the longest standing projects, which has now refocused its efforts on making the current EDRM content more useable. Evergreen is primarily concerned with ensuring that the Electronic Discovery Reference Model remains current, practical and relevant; enhancing the content at each node of the Model; and educating about how to make effective use of the Model. Our efforts may include guides on how to apply the model in practice such as with examples of usage scenarios.
There will be a flurry of activity this spring to make sure all content makes its way to www.edrm.net. This will be followed by an all out assault on the “use-ability” of the site. The EDRM membership as a whole has acknowledged that it is very hard to find information on the website in its current incarnation and so the Evergreen project has taken on the job of redesigning, auditing, linking, standardizing, and testing each component from the non-EDRM member point of view. I’m sure our group is up to the challenge. Quoting Evergreen member Josh Byrne, “I have been impressed with the level of passion for the topic, and the number of members who participate from one year to the next.”
One of the highest notes during the conference was the acknowledgement of Jason Velasco’s continuing service to EDRM and particularly for his three years as the Chair of the Evergreen Project. Florinda Baldridge, Project Management leader, outdid herself by creating a mock Law Technology News Cover to honor Jason. It was presented during the Wednesday night dinner and everyone enjoyed it. Thank you again, Jason!
Babs Deacon is the Director of Consulting and Data Analytics with Integreon and a co-Chair of The EDRM Evergreen Project.
Filed under E-Discovery (EDD)