e-Discovery Technology Enhances the Human Factor, It Doesn’t Replace It

Predictive Coding. Conceptual Clustering. Visual Analysis. Computers that can win on Jeopardy. New technologies related to the review of electronic information are being announced almost daily. It seems from the hype that we will soon have a “press here” button that will give a lawyer all of the relevant documents without any work.

Reality Check: while all of these technologies help to wade through the continually growing volume of electronic information, they are really only options which must be considered by those charged with the management of large volumes of electronic data. Leading edge technology is not for everyone, nor for every case. Even where its application will reduce costs and effort, there must be a balance struck between technology and human resources.

Introducing new technology into any process is fraught with uncertainty. To alleviate some of this uncertainty and ensure that the proper tool is selected for each job, Wortzman Nickle systematically analyses new and existing technological tools that assist in large volume document reviews. We know what technology will provide real benefit in any given situation, and will actually assist, rather than deter, human reviewers to get the job done faster, more accurately, and cost effectively.

Whatever role technology plays in any litigation search, and however sophisticated it becomes, human review will always retain a place alongside the technology as a way of getting quickly and efficiently to the document set that matters. If we leave aside those who sensibly and genuinely see the need to consider all possible ways of handling documents efficiently, there are growing external pressures on the rest to do so; they include increasingly active management by judges, competition with others for client business and,  in some cases, mere survival as a litigation practice.

If you have any questions concerning litigation technology, reach out to Wortzman Nickle for help.

The Perfect e-Discovery Solution?

The process of preserving, collecting, reviewing, and producing records is imperfect. Until all information is solely electronic and is automatically classified when created, it always will be.

Theoretically, considering that upwards of 98% of all information is electronic, it should be possible to find each and every relevant record. However, the ever-increasing volume of digital data continues to outpace our ability to efficiently and accurately deal with this information. The reality of limited time and money demands that parties compromise and accept discovery imperfection.

The problem is well documented: The amount of information subject to discovery in litigation continues to grow at almost unfathomable rates as individuals and corporations generate staggering volumes of information. In 2010, approximately 32 billion non-spam e-mails were sent every day — as compared with the 171 billion pieces of mail delivered by the U.S. Postal Service during all of 2010. In addition, social media posts, status updates, tweets, and blogs, produced from data sources such pads, pods, and clouds, all contribute to this ever increasing mass of information.

The time, burden, and costs associated with identifying and producing relevant records from mountains of information is swamping traditional discovery budgets and holding litigants in an expensive dilemma. Further complicating matters, this problem is expected to be solved in the same amount of time it took to produce documents back in the paper days.

There have been many methods developed over the years to “perfect” the e-Discovery process, such as custodian-directed collection, iterative search terms, early case-assessment, visualization, concept clustering and the newest kid on the block, predictive coding. Each of these methods has its own benefits and risks, but none produce a perfect result.

No matter how reasonable the efforts, how cooperative counsel are, or how advanced the technology is, litigants must understand that some documents will be withheld that are not privileged, some privileged documents may get produced, and some relevant documents may never see the light of day.

This is not a new problem. When paper files ruled the world, the challenge was finding critical documents that existed only within a multitude of storage boxes in some dusty warehouse. Today, the problem is almost the reverse: the chance of any single document getting lost is very small. However, having all that digital information at hand results in documents getting lost in plain sight.

Since we cannot locate, collect, and produce every relevant piece of information, what should we do? Our ethical obligations are no different than they were during the days of paper discovery. Somehow, we need to balance the requirement to produce all relevant information against the practical problems of time and expense.

There are no checklists or guidelines that lead to the perfect solution. The best way to manage these imperfections is to admit they exist, take reasonable steps to reduce them, and protect clients against them by seeking agreements that address the inevitable errors. The more transparent this process is, the more likely the parties and the courts can reach reasonable solutions. Maybe someday computers will be wise enough to save us all from ourselves, but in the mean time, the issues associated with filtering down huge amounts of information to manageable pieces will require technical know-how, foresight, cooperation and patience.

Finding what you Search for

When searching for information, it’s not the “search” that’s important, it’s what you find. According to the analyst firm Gartner, what we once knew as search, is not just search anymore. In fact, it now uses the term “information access” to include a collection of technologies to help you find information, such as:

• content classification, categorization and clustering
• fact and entity extraction
• taxonomy creation and management
• information presentation (for example visualization)

Many of the tools around extraction, classification, and categorization of records remain supplementary to the essential task of organizing information. There are three main ways in which people look for information:

• Pattern Matching – using search criteria with the same physical attributes as the sought after information, such as keyword searching. Pattern matching requires that the found information contains the words or phrases in certain parts (e.g. the title, author, content), and possibly that certain words exists close to each other (e.g. clustering).

• Semantic Web Navigation – an artificial “web” of data that allows machines to understand the semantics, or meaning, of information. Relationships between discrete pieces of information are identified, usually in some sort of visual representation.

• Classified or Categorized, that which is organized by topic browsing. – This is where we use classification taxonomies and related structured organizations of information.

While only the first approach relies exclusively on “search”, the line between search and browse (either by link or by structure) blurs more every day, as clustering and guided navigation enable new ways for lawyers to facilitate useful access to large repositories. At the end of the day, all three approaches rely heavily on metadata. Clearly, to access information properly, first you need to organize it properly.

Wortzman Nickle has spent considerable resources analysing and employing various information access technologies in an effort to maximize data analysis and review efficiencies. For more information, contact us.

e-Discovery Planning

To paraphrase Rudyard Kipling, “If you can keep your head, while all others are losing theirs and blaming it on you – you’ve probably created a good plan”.

In many engagements, Wortzman Nickle is brought into the fray long after work has started. We are asked to take over bits and pieces of what one or more groups of people have been working on. Although we are presented with hard drives, images, backup tapes and paper, very rarely will we be provided with that key ingredient – “The Plan”.

Whether you are in-house counsel, outside counsel or a third party consultant, in many discovery matters, you’ll be brought into a situation and asked to “handle it”. The first daunting challenge that you will face is getting everyone to slow down and reassess.  There’s such a huge desire to keep things moving that no one wants to take the time to sort out exactly what has transpired and try to link that to the eventual desired outcomes.

If you’re put into one of these situations it is important that you’re not pulled in to the overall panic. There are some basic steps to take:

• Take a moment to write down the issues involved and potential outcomes
• Determine how much has been spent already on specific tasks, and whether the results were beneficial to the final goal.
• Set out exactly what human and technical resources are available
• Prepare a written plan of what will be done, when and by whom

To begin, catalogue the issues and resources that are available and to lay out a concise plan for how to track them.

Creating the plan is, however, just the start.  Another important element is in having all the stakeholders sign off on their part of the plan.  Ensure that there is an approval or verification step so that everyone understands their part of the plan.  Insist on getting a response to sending out project files and ensure that there is a single point of contact that will help with tracking all of the affiliated tasks.  A strong project plan needs constant monitoring.

Establish regular updates via email or conference call to ensure that all parties know of project progress. To achieve group collaboration, consider using a shared planning tool. Among other things, this helps cut down the “blame game” emails that tend to work their way around. If you’re sharing project management files, there’s all kinds of great ways using flags and colors (and in some cases even sounds) to alert everyone interested as to who has fallen down on the job, in a timely and constructive manner, so that steps can be taken to bring the project back on track.

Some of these points may seem to be fairly basic or common sense. Nevertheless, as in many areas of life, common sense tends to go out the window when a crisis hits. Taking a moment to assemble a plan, allows you to remain focused on what needs to be done to ensure a successful outcome.

e-Discovery Craftsmanship

e-Discovery software abounds, and more packages are coming on the market weekly. Gartner, an IT research and advisory organization, estimates that the e-Discovery software market in the U.S. will reach $1.5 billion by 2013. With many options to choose from, it seems that the key to running a successful e-Discovery project is to simply select the correct software package. Nothing could be further from the truth.

e-Discovery software is a tool. Like any tool, a skilled craftsman needs to wield it in order to produce a successful result. Given the complex nature and multiple nuances of e-Discovery, the skill level of the project manager is much more important than the software tool or tools selected to accomplish the job.

A case in point – de-NISTing.  NIST stands for the National Institute of Standards and Technologies, a U.S. government agency tasked with settings technological standards. Four times a year, NIST releases a library of software signatures (hash values) for system and other common computer files. This library is routinely incorporated into e-Discovery software tools to automatically filter out files that are not likely to be relevant to a matter, in order to reduce the number of records that need to be reviewed (hence the term de-NISTing). Since review costs make up between 60% and 80% of a typical discovery budget, using automated techniques such as filtering with the NIST library can result in significant cost reductions.

This all sounds great. However, a recent examination of the NIST library revealed that it does not include signatures for Windows 7 system files or Microsoft Office 2010 files. Current estimates indicate that over 350 million computers are running Windows 7, and over 100 million run Office 2010. This means that using the common de-NISTing technique on a Windows 7 or Office 2010 machine may not filter very much, leaving a lot of irrelevant records that need to be dealt with some other way.

If a project manager simply relies on e-Discovery software that incorporates de-NISTing to take care of irrelevant system and program files, without a clear understanding of what needs to be accomplished or any means of reviewing the results produced, the number of records subjected to subsequent review may be significantly higher, resulting in dramatic e-Discovery cost overruns.

For more information on the role e-Discovery software plays in the larger e-Discovery process, contact Wortzman Nickle.

Wortzman Nickle at North America’s Largest e-Discovery Conference!

On Monday, September 19, 2011, Sedona Canada, the Law Society of Upper Canada, the Ontario Bar Association, the Advocates Society and the Ontario e-Discovery Implementation Committee collaborated to present “The Ontario e-Discovery Institute: e-Discovery for All Cases and All Lawyers” in Toronto, Ontario. Reported to be the largest e-discovery conference in North America, over 610 people attended in person or by live webinar. It was a very diverse audience from across the country, illustrating a very real interest in all things e-discovery.

Susan Wortzman and Susan Nickle participated on panels on “e-Discovery Negligence” and “Cost Containment and e-Discovery”, respectively. Other panels featured Canadian and American judges and masters, members of the Bar from across Canada and the United States, vendors and litigation support professionals. This multi-perspective approach led to interesting and spirited discussions about privacy, cost-containment, emerging technologies, and other topical e-discovery issues.

Stay tuned to our blog as we feature some of these issues in upcoming posts!

Effective Records Management – Part 2

Part one of this series considered the current state of affairs that businesses in Canada find themselves with respect to managing records. This part outlines the steps involved in implementing a practical records management program.

The basic steps involved in developing a practical strategy that will be used by an organization’s employees are:

1. Assess the way records are currently managed.

2. Report findings and recommendations.

3. Draft policies and classification/retention plans that suit the organization’s records management culture.

4. Carry out a strategic planning session to determine how to implement the recommendations/create the implementation plan.

5. Implement the plan.

6. Train staff.

7. Audit and evaluate the records management program on a regular basis.

Assess the Way Records are Currently Managed

Every organization is different. Within each organization, business units, groups, and individuals all have their own ways of dealing with the vast amounts of information that pass their desk on a daily basis.

To interest people in managing records differently than they do now, the solution must satisfy the principle of local value. In other words, what they get out of the solution must exceed what they put into it. People have limited time, limited energy and limited enthusiasm. If they have to spend more time managing records, they must stop doing something else. The value it delivers must exceed what people have to put into it. Otherwise they will not bother.

Implementing an enterprise wide records management strategy is a change process. To be successful, we need to change attitudes and workflows and tools. People need to change how they see records from a personal attribute to a collective, from a source of personal power to a source of company power, and from something acquired in the classroom to something acquired every day through work. If people can understand this with their heads and grasp it in their hearts, then the change will be successful.

As this is a very personal equation, it is imperative that a clear understanding of how people are managing records is known. The only way to accomplish this is to speak to the people in the trenches. In our experience, this is most effective when the interviewer is from outside the organization – employees are less inhibited and more candid when there is no perceived threat of being singled out for “not following the rules”.

Part 3 of this series will delve into developing an effective records management strategy.

Effective Records Management – Part 1

Digital information in today’s businesses is threatening to overflow the banks of the information rivers. The 2010 edition of IDC’s Digital Universe report shows that information overload is not some future catastrophe waiting around the corner – it is here now, staring us in the face.

This explosive growth translates not only into higher cost related to storage, and with higher workplace inefficiency when searching for information. To compound the problem, records managers and CIOs must cope with a diverse and decentralized collection of both legacy paper and digital information. For example, a company’s payroll records may exist concurrently as reports in paper form stored at some off site facility, as Excel spreadsheets stored on centralized servers, individual employees’ computers, and as attachments to emails, and within a third-party, cloud based payroll system.

Most organizations are basically treading water right now – while the information tidal wave is upon them, their efforts are focused on plugging holes, not stemming the tide. To move forward in a proactive way, organizations need to develop an enterprise records management program.

Within most organizations, individual groups tend to develop their own way of managing records. In some cases, this is even left to individual employees, usually with difficult consequences when an employee leaves and someone else takes over that position. Although information is information, it is common to see the management of digital records treated differently than paper records. Organizations with long-standing records management strategies are struggling, as they try to force terabytes of digital records to fit within an archaic and usually complicated system original designed to manage a few 100 boxes of paper.

Lack of consistency and simplicity, combined with the abundance and ever growing volume of digital records, makes it difficult for even the most proactive companies to achieve compliance. The answer to this dilemma is simple – organizations must adopt a single set of records management policies coupled to a simple plan that governs all information, regardless of the data format or location. By implementing standard, enterprise-wide practices for classifying, retaining and destroying records, a company lowers its risk of non-compliance and increases its efficiency, reducing costs. These policies form the backbone of any compliant records management program.

In practice, implementing these strategies can be fraught with potholes. In part 2 of this series, we’ll discuss the steps involved in developing a practical ERM program.

Information Overload

Recent studies and articles make the case for better information management:

• Information workers, who comprise about 63% of the U.S. work force, are bombarded each day with 1.6 gigabytes of information through emails, reports, blogs, text messages, calls and more.

• U.S. companies lose an estimated $900 billion a year in lost productivity because of information overload.

• The average knowledge worker — from computer programmers and rocket scientists to administrative assistants and accounting clerks — spends about 25% of the day searching for information, getting back to work after an interruption and dealing with other effects of information overload.

Information overload is escalating. While IT departments look for solutions, relatively few companies have policies and procedures in place deal with the issue or help their employees do so.

Here are some tips:

Take Control

Gaining control over the information can help ease the sense of overload.

Relying on interaction through the inbox takes away an individual’s control of the information that comes to them – they are at the mercy of information that other people deem important.

An alternative way to interact that gives an individual control over information that is most important to them is through the use of internal social-networking tools, such as shared web pages (known as wikis) and collaborative sites, such as those facilitated through SharePoint.

Another way to focus on what’s important is to set up alerts and feeds from disparate sources, based on keywords. Of course, this means more email, so it’s also important to set up rules to direct less important messages into specific folders that can be checked only when needed.

Control can also be achieved by assuming a proactive, rather than reactive, work ethic. Organize the day into blocks of time that are quiet, focused work, where email is not checked, and specific times when you check email. During the quiet times, post a do not disturb message for instant messages.

Prioritize and Organize

Plan how to manage the messages as they arrive. Messages that can be dealt with in less than two minutes should just be taken care of and then deleted immediately. If the message requires more time, delegate it or defer it. If the message is deferred, move it to an action folder or a to-do-list (Microsoft Outlook has the ability to easily flag emails for follow up in the future).

Send Less

It’s a well understood principle – the more email you send, the more you get. Here are some specific ways you can better manage the information flow:

• Reduce word count. Sending concise email messages with clear subject lines.
• Put necessary tasks at the beginning of the message, to avoid the recipient being unsure what to do.
• Don’t hit “reply all” unless absolutely necessary.
• Send “thank you” emails, and never “reply all” for those.
• To decrease interruptions, turn off “new email” alerts and cancel the “new mail” alert on your desktop.
• Sort your inbox by sender, or create a rule to mark messages from key contacts in different colors.

While individuals can take control on their own, organizations that have well written, established and enforced policies and procedures will find that information management has been streamlined. These organizations will be rewarded with increased productivity.

e-Discovery Literacy

“The illiterate of the 21st century will not be those who cannot read and write, but those who cannot learn, unlearn, and relearn.” Alvin Toffler

Rapid changes in technology make this quotation particularly true in the e-discovery realm.  New approaches, different digital sources of information, new and improved technology, and the practical realities of limited resources all challenge litigators to approach each file in new and innovative ways to minimize the costs of discovery. In short, one size does not fit all.

The moral of this story is to stay flexible. Be adaptable. Don’t get tied down to one approach, one tool, or one piece of software. In the words of Toffler, “learn, unlearn and relearn” to ensure that all of the phases of discovery are conducted in the most timely and cost effective manner possible. This is simple but not easy. It requires e-discovery literacy - a commitment to stay current on new and emerging discovery approaches and technologies: early case assessment, processing, predictive coding. Your law firm and your clients will thank you.

If you don’t know what’s out there, ask your IT department, a forensic vendor, or call us. We’re always happy to discuss all things e-discovery.