e-Discovery Roadmap Given to New York Lawyers

While the U.S. Federal Rules of Procedure (amended in 2006) provide meaningful guidance to parties and their counsel in federal court, e-discovery rules at the state level, described as “underdeveloped and uneven” have left lawyers “lost” in the area of e-discovery.

The New York State Bar Association has come to the rescue with comprehensive, practical e-discovery guidelines. These 14 guidelines, among the first of their kind at the state level, were designed to assist counsel in navigating the complex world of electronically stored information, and to prevent inadvertent spoliation.

The guidelines place considerable emphasis on preservation and legal holds. Given the number of spoliation cases in the state, perhaps this focus is understandable. Other aspects covered include the reduction of e-discovery costs through appropriate retention and collection strategies, and the importance of counsel understanding their client’s technology. Notably, there is a significant focus throughout the guidelines on the use of electronic tools, and counsel’s responsibility to understand and utilize technology.

While these guidelines do not deviate from known best practices for discovery, they are written in plain English and are very practical. Notwithstanding different rules of procedure in Canada, they have utility for Canadian lawyers as well. We will watch with interest as decisions emerge under these new guidelines.

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.

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.

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.

Translation Required: E-Talk

New e-discovery products are coming to market on almost a weekly basis. They serve different functions and fit into different parts of the EDRM model (notionally being: preservation, identification, collection, processing/culling, review, and production). In researching these options, we are learning that the terminology used by forensic companies is often as diverse as the products they are selling. 

In particular, the term “review” is causing some confusion. In the legal context, “review” means the fifth stage in the EDRM model referencing the “lawyer review”. This is the phase after collection and processing/culling when lawyers review and code the records for relevance, privilege and to issues codes. At the review phase, we look for a robust review platform that allows customized coding fields and the integration of near de-duplication and/or concept clustering software. These features save our clients significant time and money as they avoid a linear review. 

However, in the forensic context, “review” often means the ability to view records (images or in native format) during the early case assessment or processing/culling phases. 

Does this potential conflict in e-terminology matter? Yes.  Suddenly, a solution billed as “end to end” is actually an early case assessment or processing tool – one which will require an export of data to an appropriate (but different) review platform down the road. This can mean an increase in time and cost for the litigant company – the one that believed it had purchased a single “end to end” e-discovery solution.

The lesson learned is this – ask lots of questions and clarify the terminology at every stage. Alternatively, call Wortzman Nickle and we’ll help you with the e-translation.

Wortzman on early case assessment..

I have just finished a cross-country conference tour.  I started on September 16^th at the Sedona Conference, Getting Ahead of the e-Discovery Curve: Strategies to Reduce Costs & Meet Judicial Expectations in Vancouver.  Moving east, I then participated in the Canadian Institute: Class Actions Litigation conference on September 23^rd in Toronto discussing e-discovery issues.  The last part of my travels took me yet further east to Halifax on September 30^th to an Insight conference, E-Discovery and E-Documents.  I can now safely say that I have heard from external counsel, in-house counsel, vendors, records management and IT participants on their latest issues and concerns surrounding e-discovery in Canada. 

The buzz at all three conferences seems to be “early case assessment”.  While the never ending issues of preservation and proportionality were discussed, there was a tremendous focus now on costs and how to reduce the costs of e-discovery.  Peg Duncan and I prepared a paper for the Sedona Conference called e-Discovery: Bringing Down the Costs which garnered much interest at the conference.  I have since had several calls and questions from lawyers and in-house counsel wanting to discuss early case assessment tools.

In practice, I have recently been involved with two cases where we have very successfully used early case assessment tools to quickly identify key electronic records in massive collections of data.  Although this is not the end of the e-discovery review, it has allowed counsel to inexpensively and very efficiently identify key documents for their cases.  It is the inexpensive part that our clients are most interested in achieving.

Wortzman and Nickle continue to look at early case assessment tools to provide our clients with advice on the best way to assess and analyze their electronic records and their case, early in the lifespan of a matter.