Gone are the days when Information Technology (IT) was the only part of the organization to have and need knowledge about where electronically stored information (ESI) resides. While the updated federal rules don't require that counsel know exactly where their organization's ESI is at all times, the rules make counsel accountable for that data's preservation, review and production.
A good records management program tracks information about ESI like custodian or owner, type, dates and location, as well as policies related to the retention or destruction of the ESI. Techniques such as data-mapping can provide this information in a condensed, easily retrievable format. This information can in turn be used for quick access to ESI for litigation. Knowing the custodian and where their related ESI resides can save time, money and resources when it's time to collect the ESI for search and review.
One must be careful, however, that the records management policies respect the litigation hold process. So another aspect of a good records management program is that it can be flexibile and allow for exceptions.
2. How Do I Balance Defensibility and Cost When Preserving and/or Collecting ESI?
"Dragging and dropping" or simply copying ESI to a hard drive or CD is becoming a less acceptable option for the preservation or collection of ESI. As more attorneys become familiar with metadata, like file creation or modification times, and realize the value of metadata, more will demand that ESI metadata be preserved, and that copies of ESI match the original ESI.
Does that mean you have to hire a forensic technician for all your collections? No. But if you are going to do the preservation and collections in-house, your staff must be trained on the importance of preserving the integrity of the ESI. Several tools are starting to emerge that automate the process so that someone with low technical skills - or even the custodian - be able to defensibly copy ESI. (See RemLox or BlackBox)
Because IT operations are not consistent, and sometimes even contrary to eDiscovery processes, IT must be trained on handling ESI for litigation. One way is to have a consultant help draft procedures that are geared towards your organizations infrastructure. Then, when litigation hits, have the consultant provide guidance during the process, looking over the shoulders of the IT personnel, helping them with the current matter and with refining the procedures for the next matter. After a couple of matters, your procedures will be refined and your IT people will be ready to take on the tasks themselves.
One caveat to this is the danger of having IT too involved in controversial ESI or a highly contentious matter, and providing opinions related to the ESI at issue. This, in my opinion for a variety of reasons, should be handled by a consultant accustomed to testifying in court and explaining technical concepts to attorneys, judges and juries.
Just to drive home the point, in a recent matter (Brown v. FPI Mgmt, No. 4:11-cv-5414 YGR (KAW), 2013 U.S. Dist. LEXIS 1040 (N.D. Cal. Jan. 3, 2013)), the court held that the Defendant did not make a good faith effort to search their documents. This could have been avoided if the Defendant had hired a consultant to find a way to manage the document search, or had at least hired a consultant to support their argument that searching the documents was overly costly and burdensome. It appears that the "our system just isn't meant to be searched" argument will no longer fly.
3. I Keep Hearing About Predictive Coding. Should I Be Using It?
I've not seen anything in eDiscovery like the buzz about predictive coding. While I don't think it's just a buzz, but rather a legitimate new and useful technology, I do think that it's misunderstood. The idea behind predictive coding is to have the computer use an algorithm to do the work of categorizing documents using textual patterns in the documents. An attorney goes through a small portion of representative documents during the "training" process, in which the algorithm "learns" the different categories of documents. Eventually, in theory, the algorithm will then be able to look at a document and categorize it without human help. Some claim that review costs can be reduced by up to 98% using predictive coding.1
While there is some data to support claims of it's effectiveness2, there exist, however, certain problems inherent in the technology. First, representative documents must be properly identified during the training process so the computer can "learn" which documents go in which category. If one category is under-represented, it could throw off how the algorithm assigns future documents. So training is important and must be performed until some type of stability is reach. In other words, training must continue until the algorithm predicts a document's category at an acceptable rate.
Second, predictive coding is not free. Industry standards are somewhere around $0.05 to $0.09 per document. Industry standard for document review is around $1 per document. So two factors come into play here: (1) Are there enough documents so that the training process pays off, and (2) Will you really save any money by using predictive coding rather than traditional technology-assisted-review techniques, such as Boolean or concept searching. You will need to find that break-even point. I've heard the break-even to address the training is at least 50,000 to 100,000 document. Which means that predictive coding shouldn't even be considered for smaller document populations.
Third, not all document productions are conducive to predictive coding because of their nature. For example, if you have a wide variety of document types you are searching, patterns may not exist to allow predictive coding algorithms to be of much help. Predictive coding works best when patterns within documents can be identified. I can see how employment matters would not be good candidates for predictive coding, whereas intellectual property cases, like patent or other disputes where technical terms and concepts are at issue might be good candidates.
Finally, the issue of court acceptance must be considered. While there have only been a handful of cases that I know of in which predictive coding has been addressed, if you are practicing in an area where technology is welcomed by the courts, court acceptance may not be an issue. However, if you practice in an area where courts are still struggling with accepting some technologies - either because of lack of exposure or lack of opposing counsel's knowledge or acceptance - you may have to educate the parties.3
4. My Organization Has Only Been Involved A Few Small eDiscovery Matters. Should We Hire A Consultant To Help If We Get A Big eDiscovery Case?
While handling low-value, repetitive eDiscovery matters in-house can make sense, there will most likely come a time when the complexity or size of an eDiscovery matter requires outside help. This expertise comes at a price, but there are ways to use a consultant intelligently so that their value is optimized. For example, use the consultant wisely for high-level tasks with your team watching and learning. Encourage your team to ask questions to understand why the consultant is doing what they are doing and why they are doing it. Likewise, make sure the consultant understands that part of the purpose of their engagement is to train your team.
A good, battle-scarred consultant possesses valuable lessons learned that were financed by someone else along the way. It's advantageous for you, as general counsel, to leverage this knowledge and put it to use in your organization. A good consultant can help identify pitfalls during the process that can save valuable resources. As your in-house team works with the consultant, they are able to pick up on best pratices so that next time they are more prepared for the response to complex litigation. Over time, the consultant can be used less and less as your team improves their own expertise, thus saving the organization money in the long run.
Finally, a seasoned consultant can help with your offense. Since they have most likely been on the receiving end of several types of attacks, they bring a valuable arsenal for going after the opposing side and their experts. Aiding with legal offense is one of the most effective uses of a consultant.
5. What Other Actions Can I Take That Would Help Me Prepare For Large eDiscovery Matters?
As the Boy Scouts say, "Be Prepared". eDiscovery truly is a "pay me now or pay me more later" proposition. A small investment in readiness can save a lot of time and resources later. Whether, by training your personnel or hiring a consultant to help your team put together a litigation readiness plan, doing some preparation outside of the potentially chaotic environment of discovery for litigation makes a lot of sense. In addition, you might consider:
- Developing templates and plans for litigation holds and preservation letters for the types of litigation your organizations faces, and look into tools that may help smooth the processes around those templates.
- Thinking ahead about checklists for different phases such as meet and confer and discovery so that you have a list of everything to pick from or whittle down instead of making it up as you go.
- Consider having a standard ESI protocol that addresses custodians, data types, data locations and data sources, so that you can be more prepared than opposing counsel to address the relevant ESI.
In summary, general counsel should do their best to apply technologies and other resources like consultants intelligently. One technology or software tool may work for one organization, but not fit with another. Counsel should consider developing a tracking mechanism to identify the most common types of cases for the organization and act appropriately based on those data. After all, every organization is unique and every legal matter is unique.
1. Symantec Website: http://www.symantec.com/predictive-coding
2. Maura R. Grossman & Gordon V. Cormack, "Technology-Assisted Review In E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review", Richmond Journal of Law and Technology, Vol. XVII, Issue 3: http://jolt.richmond.edu/v17i3/article11.pdf
3.Jonathan, Berman. Jones Day Website, "Predictive Coding—A Dispatch From the Front Lines of E-Discovery", http://www.jonesday.com/predictive_coding/