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!

Predictive Coding Demystified

Predictive coding has received a lot of attention lately as the next great magical wand in the e-discovery bag of tricks. However, as with any new technology, there are a number of different implementations and marketing claims that are confusing the whole picture of how this system can help make the e-discovery process more efficient and ultimately reduce costs.

In a nutshell, predictive coding involves the application of sophisticated artificial intelligence to permit the computer to make suggested determinations based on human interaction and the content of documents.

All predictive coding incarnations basically involve the review lawyer coding a subset of the records in the collection. The system examines the decisions made by the reviewer and identifies properties of the documents that it can use to automatically make determinations. As the reviewer continues to code documents, the system predicts what the reviewer will code. When the system’s predictions and the reviewer’s actually coding coincide (within reason), the system has learned enough to make confident predictions on its own.

Predictive coding is being applied at several stages in the e-discovery analysis and review processes:

Culling: In this mode, a lawyer who is an authority on the matter makes relevance decisions on a subset of the records. Once a sufficient number of records have been reviewed (typically a few thousand), the system applies its predictive analysis to the entire set to cull out the records most likely to be relevant. These records can then be subjected to the normal, manual review process.

Subjective Coding: The predictive coding system examines the subjective coding decisions made by lawyers as they manually review records. When a sufficient number of records have been reviewed, the system will start to make coding suggestions for subsequent records to assist the lawyers.

Review Quality Control: Along the same lines as predictive subjective coding, the system uses the subjective coding decisions made by lawyers to predict how documents should be coded. However, instead of suggesting codes for un-reviewed records, the system will apply the predictions to all manually coded records and identify those records where its predictions and the actually coding diverge. This will enable reviewers to zero in on documents that may not be coded correctly.

Prioritization of Records for Review: Predictive coding can also be used to prioritize records in a review. Once a sufficient number of records have been manually reviewed and coded, the system can group un-reviewed documents based on its coding predictions. The review project manager can then group all documents likely to be coded relevant, for instance, and assign these to be reviewed first.

Predictive coding technology is also being considered in several electronic  records management solutions to permit automatic classification of records, removing the burden from individual users.

This technology is being incorporated into more and more e-Discovery software systems, and may soon become a standard way to cull and review electronic data.

For more information on this technology and other cutting-edge e-discovery solutions, contact us.

Solid State Drives – Delete Does Mean Delete

Solid state drives are gaining in popularity in laptop computers and tablets. Compared to their hard disk drive counterparts, solid state drives are more expensive and offer less storage. However, they are much faster and lack the moving parts that can make HDDs prone to failure, particularly in mobile devices that experience a great deal of movement. Solid state drives also consume much less power, allowing portable devices to be used longer between charging.

As with any digital technology, as they move into the mainstream, the price of solid state drives will fall and the storage capacity will increase. It is expected that solid state drives will virtually replace conventional hard drives in portable devices within the next 3 to 5 years.

All of this sounds great, except when it comes to computer forensics. For years, computer forensic professionals have been claiming that “delete does not mean delete”. When you drag a file into the Windows recycle bin, or delete an email in Outlook, a computer forensic technician can usually recover it. This is because, when you “delete” a record on a computer, all that happens is that the record is hidden from view and is suitably marked so that sometime in the future, the computer can replace it with newer data.

Unlike conventional hard drives, solid state drives are little computers unto themselves. They insulate the main device from all the nitty gritty details about storing and retrieving information. Among other things, the solid state drive automatically purges deleted information after 30 to 60 minutes. This is done to reduce power consumption, as the power is directly related to how much data is stored on the drive. Unfortunately (from a computer forensics perspective) this means that when you “delete” a file or email, after an hour, it is permanently erased from the solid state drive.

Although most e-Discovery matters only involve active data, there are situations such as fraud or harassment, where deleted information may be important. The widespread use of solid state drives will make investigations such as these more difficult.

For more information about the computer forensic implications of solid state drives, refer to the Journal of Digital Forensics, Security and Law, Volume 5, Number 3.

Wortzman Nickle’s Training Sessions – Now Accredited by LSUC

Over the past several years, the Susans have worked with a significant number of Canada’s top law firms. Several of these firms have invited us in-house, to speak to groups of litigators and business lawyers about the perils and opportunities inherent in e-discovery, and the benefits of proper records management. Each session is 90 minutes in length. These presentations have evolved over time to keep pace with the changes in technology and approach to discovery.

We are pleased to announce that these Wortzman Nickle education programs have now been accredited by the Law Society of Upper Canada as follows:

• Our e-Discovery program has been accredited for 1 hour toward the New Member Requirement and 0.5 hours toward the Professionalism Requirement for ongoing members.
• Our 90 minute Records Management program has been accredited for 1.5 hours toward the New Member Requirement and 1 hour toward the Professionalism Requirement for ongoing members.

These time-effective and interactive sessions are ideal for a lunch meeting or firm retreat. Call us to discuss bringing these sessions to your team.

Sophisticated software can help lawyers, not replace them

On March 5^th, the New York Times published an article entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software” which discussed the “new e-discovery software that can analyze millions of documents in a fraction of the time, and at a fraction of the cost consumed by human lawyers, even deducing patterns of behaviour”.   It discussed the explosion of electronically stored information, the technology used to analyze that data and how all this has disrupted the legal job market.

The article provided a clear and concise overview of the new systems available to assist legal teams.  However, the conclusion that these technologies will replace “expensive lawyers” misses the mark. All of the technologies mentioned in the article require a combination of machine and human interaction in order to operate. Humans have to “teach” the computer to identify relevant information. As with any educational process, the more highly skilled the teacher, the better the lesson will be. What the technologies will replace are lawyers working at very basic levels without a strong understanding of the case.

Although the new technologies will force lawyers to learn new ways to approach document discovery, the technologies are just one cog in the legal machine. Lawyers still need to understand the content of the documents to build their case. The new systems will help lawyers to zero in on the documents containing the relevant content.

No matter how sophisticated a computer system gets, it can’t make subjective evaluations. The legal process is not black and white – it’s ultimately based on judgement and inference. As a result, it will always require highly skilled talent.

Over a Million Reasons to Stay Out of Prison for Spoliation

Justice Paul Grimm has released his decision in Victor Stanley II, confirming that severe spoliation sanctions are escalating in the United States.

In this unfair competition action, the defendant’s president, Mark Pappas, was accused of destroying (directly and indirectly) thousands of emails relevant to the case and of intentionally deleting relevant electronically stored information from his computer the night prior to its discovery. For good measure, Pappas also ran ‘”defragging” software. He alleged that the emails had been moved to a deleted items folder for “storage purposes”. The court rejected his story, calling Pappas’ conduct “clearly contemptuous”.

The court entered a permanent injunction and default judgment regarding the liability against the defendant with respect to the plaintiff’s copyright claim. However, the balance of the claims were permitted to proceed, as the court held the plaintiff had yet to prove irreparable or substantial prejudice.

The plaintiff was held to be entitled to its legal fees and costs related to the spoliation, violations of court orders relating to discovery, and the plaintiff’s seeking of sanctions. As a result, Pappas was ordered to “be imprisoned for a period not to exceed two years, unless and until he pays to the plaintiff the attorney’s fees and costs that will be awarded.” These costs were substantial at $1,049,850.04.

This must-read case will be to 2011 what the Pension Committee case was to 2010. Of particular interest is the 12 page chart drafted by the court that provides spoliation sanctions by court circuit to assist counsel in avoiding similar results. It’s only the third week of January. Stay tuned.

e-Discovery is a Business Process

In the U.S., many lawyers are calling 2010 “the year of e-discovery sanctions”. There were more sanctions and parties cited for failing to adequately respond to e-discovery requests than in any previous year. The costs associated with e-discovery are also growing at an exponential rate. As a result, corporate counsel are starting to realise that the costs and risks associated with scrambling to locate and organize e-discovery evidence after litigation strikes are just too high.

In Canada, things are not (yet) as daunting as in the U.S.  Canadian courts are opting to be more proactive, changing rules and adopting the Sedona Canada Principles to direct counsel down the right e-discovery path from the outset. However, the courts are making it clear that they will not tolerate parties who fail to properly address e-discovery processes.

So what’s the solution? According to a Forbes report, e-discovery needs to treated as a standard business process, like legal, corporate governance, HR, and IT, and not as a project that is kicked off on an as-needed basis.

As we emerge from the most recent recession with its associated financial restraints, this idea may sound too expensive to deal with at the moment. However, as the Forbes article suggests, companies should see this it as an opportunity to introduce cost savings into the organization, by changing the current corporate culture so that employees understand how their role is governed by and influences e-discovery requirements.

A side effect of this corporate wide ESI management revolution is that IT will end up spending much less time and money managing digital information, and employees will see a dramatic reduction in the time it takes to find the information they need to do their job. The cost savings from this alone will more than offset any expense due to corporate training and auditing.

In 2011, transform your corporation’s e-discovery approach from a tactical search and rescue mission into a strategic business function.

Bells and whistles are for bikes, not e-discovery solutions

All too often, decisions on what e-discovery solution to implement are based on flashy sales presentations and vague explanations of how the systems function. Rarely does the end result surface in the decision making process.  More often than not, the bells and whistles of the product tip the scales.

While a good user interface and flexibility in creating search criteria help to improve the usability of a product, there are other aspects of the product that are equally important, such as:

• The ongoing operating costs – even if the software is purchased outright, that cost needs to be amortized over the life of the product. Many systems have annual maintenance fees that can add up to 25% yearly to the cost of the product. Some products come with a volume fee as well. Since e-discovery vendors are generally much more efficient (due to significantly larger volumes of work) than law firms when it comes to dealing with ESI, many law firms find that they can’t pass the full capital and operating costs of their in-house software onto their clients.
   
• IT support – law firm IT systems are set up to mainly support the storage of documents. This usually involves relatively little ESI storage space, compared with storing a client’s data during a review (which can run into the hundreds of gigabytes or even terabytes). Although adding storage space is not technically taxing, supporting that added space with the existing IT staff can be a challenge.
   
• Collaboration – e-discovery solutions are purchased to handle the review of large numbers of documents. This by its very nature necessitates a team approach to the document review project. While collaboration and project management features of software solutions are important, equally important are the network resources required to ensure that each reviewer has sufficient access to allow them to achieve the desired efficiency. A stellar review platform can be rendered unusable by slow network performance.
   
• e-discovery expertise – an e-discovery solution is just a tool. How that tool is used depends on the capabilities and knowledge of the person wielding it. Craftsmanship and expertise is just as important in e-discovery as it is in furniture building.

It’s all about the end result, not about making the journey in style.  Too often, the ultimate process that needs to be completed is not well defined, leading to decisions that don’t work or are so complicated that the new tool never achieves widespread acceptance in the workplace.

Don’t be drawn in by the rhetoric of gurus. So-called authorities all too often focus on the fluff of theory, paying more attention to the means than to the end. There are people out there who talk about e-discovery but aren’t actually working in e-discovery on a day-to-day basis. They will tell you in theory how to do things, but you’ll spend many moons actually figuring out how to do it yourself.

When you need to get from Point A to Point B, consider whether a Chevrolet can do the job as well as a Porsche.  Wortzman Nickle can show you the way.