Tom O’Connor authors the cover story for the May 2008 issue of Law Technology News entitled “Defining Documents.” Tom makes the excellent case that litigators in the digital age must move away from a page-centric attitude and focus instead on the whole document.

Electronic files do not have pages. Pages only happen when you reduce an electronically stored file to paper. The only reason that Microsoft Word or Adobe Acrobat offers a page view is because they know you’re eventually going to print the document. Web pages, Excel spreadsheets, and e-mail messages don’t have pages when you view them on your computer screen.

Most lawyers, however, cannot conceive of a document without considering the page count. If you insist on knowing the page count of an e-mail message, then the message must be processed to a TIFF image which is the electronic equivalent of printing the file. Not only is this an unnecessary step, but Tom points out that it’s also expensive and time-consuming.

To shed a little more light on the topic, the editor of Law Technology News, Monica Bay, interviewed Tom on her Law Technology Now podcast (playable online here from the Legal Talk Network). Tom explains that attorneys are “very wed” to the traditional Bates numbers that have managed documents for years in the legal world. The equivalent of a Bates number for electronic files is a hash function which is a unique string of numbers that can be applied to each individual, all-inclusive file. For more information on this concept, visit Ralph Losey’s blog post “The Days of the Bates Stamp are Numbered.”

Tom’s article provides a couple of options for getting around our page-centric thinking, but it mainly comes down to finding a comfort level with reviewing documents in their native format. The default should not be to have the documents automatically printed, or scanned, or processed to TIFF. Instead, we must consider keeping the documents in their native format and being open to new methods for referencing each document, moving away from the Bates stamp.

Tom states it well:

Attorneys and clients who focus on a document-based system will save time and money and can conduct native file review. In today’s world of vast quantities of electronic documents, the days of the Bates stamp are numbered.

Link to article.

In a fascinating February 18, 2008 opinion, Magistrate Judge John M. Facciola references the Federal Rules of Civil Procedure regarding electronically stored information (ESI) in a seemingly mundane federal criminal matter.

United States v. O’Keefe Case No. Cr. 06-249 (D.D.C. February 18, 2008) charges the defendant (formerly employed with the U.S. Department of State stationed in Canada) with accepting "gifts and other benefits" from a co-defendant in exchange for expediting visa requests for employees of the co-defendant’s company.

Judge Facciola recognizes:

"In criminal cases, there is unfortunately no rule to which the courts can look for guidance in determining whether the production of documents by the government has been in a form or format that is appropriate. This may be because the ‘big paper’ case is the exception rather than the rule in criminal cases."

and continues:

"It [would be] foolish to disregard [the Federal Rules of Civil Procedure] merely because this is a criminal case, particularly where, as is the case here, it is far better to use these rules than to reinvent the wheel when the production of documents in criminal and civil cases raise the same problems."

This is an intriguing but embraceable statement. Criminal cases can experience the same issues of collection and preservation of ESI that a civil matter would see. And since the issues have been (and continue to be) thoroughly vetted in the civil litigation world, there’s no reason that they can’t be equally applied in a criminal matter.

Judge Facciola details the search activities of the government which are disturbing at some points. I share Ralph Losey’s concerns that there was no mention of an attorney being involved when the Visa Unit Chief of the United States Consulate General in Toronto, Canada (presumably the defendant’s former supervisor) conducted the search for paper records and "responsive emails." Ralph does an excellent job of referring to the duties directed upon legal counsel to communicate with the key players to better understand how potentially relevant information is stored and located.

The more noteworthy issue in the opinion that others have commented upon is in the second to last paragraph where Judge Facciola writes that developing a set of "search terms or ‘keywords’ … is a complicated question involving the interplay … of the sciences of computer technology, statistic and linguistic."

Judge Facciola continues:

"Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This 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."

Mark Foley in his article "Expert Testimony May Be Needed for E-Discovery Keyword Searches" suggests that taking Judge Facciola’s comments literally would mean that any objection to a list of search terms would need to be supported by the testimony of an expert in the field of computer science, statistics, and/or linguistics.

I don’t believe Judge Facciola intends for us to take his comments to that extreme, but it does highlight the absolute necessity to seek agreement on search terms early and quickly. It’s also advisable to employ an expert to review the search terms, or at least earnestly discuss the issue with your e-discovery vendor. Some attorneys who may be more familiar with Westlaw or Lexis or Google type searches insist on developing a lengthy keyword list to circumvent the fear of "missing something." While I understand the concern, a foolhardy and over-broad keyword list will end up costing a party much more time and money in the long run.

My postings have been a little sparse lately due to several speaking engagements I’ve been grateful to have on my calendar.

First, I gave a presentation entitled "SaaS: The Time is Now" at the Litigation Support Leaders SuperConference down in Houston last week (Thursday 3/6). My presentation expanded on the themes I explored in my Law.com column entitled "SaaSsy Litigation Support."

I had been looking forward to this conference for a while (although I was disappointed that I had to leave early for another speaking engagement on Friday, March 7). There have not been many conferences specifically for litigation support professionals and I was thrilled to see that Chere Estrin and her group, Estrin LegalEd, used their conference-planning abilities to bring together the powerhouse of speakers for the event including:

• Tom O’Connor
• George Socha (more info on presentation)
• Michael Arkfeld (more info on presentation)
• Henry Alonso
• Lisa Rosen (more info on presentation)
• Charlotte Riser Harris (more info on presentation)
• "More info" posts courtesy of Monica Bay who was also present at the conference

The only other conference that I am aware of at the moment that is specifically geared towards litigation support professionals is The International Litigation Support Leaders Conference sponsored by the Litigation Support Today magazine. I have not been invited to speak at this conference, but I know the keynote by Browning E. Marean III will be worth the price of admission alone!

I hope that both organizations are realizing the benefits in marketing directly to litigation support professionals rather than the traditional audience of attorneys and/or paralegals. This shows the growing importance of the litigation support role.

Today I’m heading over to Chicago to attend the not-to-be-missed ABA TECHSHOW Thursday (3/13) through Saturday (3/15). There are some fantastic presentations in the E-Discovery Track (sort by "E-Discovery" on this page) and yours truly will be giving a presentation entitled "Small Volume E-Discovery: One Hard Drive Could Make, or Break, Your Case" on Friday along with Todd Flaming of Schopf & Weiss LLP.

Other wonderful highlights of this year’s TECHSHOW include the keynote on privacy and the Internet and the new tracks called "Large Firm/Corporate Counsel" and "Mac Track."

Craig Ball posted his insightful “Crystal Ball” predictions for the future of e-discovery in the January 2008 issue of Law Technology News. That inspired me to compile a list of other e-discovery prognostications from around the Web.

I am thrilled to see Craig Ball highlight virtual machines as an important trend for the collection of electronically stored information (ESI). I don’t hear many e-discovery vendors talking about this trend, but I do see a lot of IT professionals reporting the glories of virtualization. That means if you’re collecting ESI, you will encounter virtual environments so you better be prepared.

Next, Craig declares that “data is the ultimate portable commodity” because personal information today increasingly lives on portable media and the Internet. Who doesn’t have a USB memory stick? I have friends that use “portable apps” to transport their entire digital world (office work, e-mail, etc.) back and forth from the office.

Now we’re hearing more and more about “cloud computing” where applications and data storage are dispensed from server farms rather than local computers. For example, e-mail is handled completely online by Gmail, documents are hosted by Zoho Office, billing/invoicing is done by Freshbooks, projects are managed in Basecamp, and contacts are stored on Salesforce.

This prediction is echoed by Dennis Kennedy, who recognizes “EDD in the Cloud” as one of the three most important e-discovery trends out of his broader list of 26.

Those of us involved in electronic discovery must stay aware of these trends because we cannot afford to fall into the trap of thinking that everyone keeps their documents on their C: drive just because we do. Not everyone will keep their data in the cloud, but you can’t afford to leave that stone unturned.

Similarly, law firms and corporations who are reviewing large collections of documents for litigation are electing to host those files in the cloud rather than taxing their internal resources. This was a trend that Dennis raised in his legal technology trends for 2007. Craig Ball predicts that low-cost desktop review tools will become more popular while declaring that “hosted production” will soon become accepted:

“We bank and do our taxes online. Soon we’ll receive and review ESI the same way.”

The desktop review tool can simply be pointed to wherever the data lives - locally on a LAN, or across the world on a server farm.

Inspired by Craig Ball’s predictions, Tom O’Connor predicted five “general trends” for 2008.

Tom first posits that runaway spending in e-discovery will level off in 2008. I hope he’s right.

Tom also declares that “tension between corporate counsel and outside counsel will increase” as corporations strive to cut costs. Tom is right on the money here because corporate counsel are getting much better at educating themselves on e-discovery rather than blindly relying on their outside counsel.

This view is shared by Neil Squillante over at TechnoLawyer, who put forth some of his own predictions this year. Neil promotes what he calls the “apotheosis of the general counsel”:

“…with the rise of electronic discovery, corporate counsel find themselves in need of technology solutions that didn’t exist five years ago. Chief among these — applications for archiving email and other documents in anticipation of lawsuits, and applications for preserving and culling relevant documents from these archives after being sued but before engaging outside counsel.”

I wholeheartedly agree with Tom O’Connor’s third prediction: “growth in the market will occur at the state and local level.” I’ve written about the states adopting e-discovery rules before, and it is inevitable that lawyers who litigate in the state and local courts will have to deal with ESI, regardless of their penchant for avoiding it.

There will be some interesting action in the e-discovery space this year - some bad and some good. I continue to be amazed at how the inclusion of electronic data transforms the world of litigation. The practice of law is so dependent upon tradition for its survival, which means that change always comes slow. But dealing with e-discovery requires new strategies and new knowledge. There is no doubt that the legal profession will adapt (lawyers are constantly learning), it’s just going to be a bumpy ride.

LegalTech always means a lot of vendor meetings and briefings, but I made a point to attend the “Breakfast Briefing” sponsored by the E-Discovery Institute entitled “Counselor, Why Can’t You Google It? - The End of the Multi-Million Dollar Document Review.”

The E-Discovery Institute is a relatively new, non-profit organization founded by Anne Kershaw (A. Kershaw, P.C.), Patrick Oot (Verizon), and Herb Roitblat (OrcaTec LLC).

The room was completely packed, mainly because of the star power of the panel that included Craig Ball, Esq., Julia Brickell, Esq. (Altria), Laura Kibbe, Esq. (Pfizer, Inc.), Jonathan Nystrom (Cataphora), and the Honorable David Waxse (District of Kansas).

Before we got to hear from the panel, however, Herb Roitblat provided some statistics from the Institute’s inaugural study based on a dataset from MCI-Verizon acquisition. The Institute will be releasing a white paper based on study in a few months. Ron Friedmann (who I finally got to meet in person) does an excellent job of covering the findings of the study on his blog.

Once the panel got going, there were some intriguing quotes flying around the e-discovery atmosphere:

Judge Waxse (District of Kansas):

• There is NO requirement in the legal system for PRECISION. It only requires REASONABLENESS. (Ron Friendman also picked up on this.)
• It is imperative for the legal profession to rely on technology to automate the discovery process since it’s obvious that relying on attorneys to perform large document review is inefficient and expensive.
• Don’t forget proportionality - it’s in the rules but no one seems to focus on this enough. Judge Waxse stated that he would never overspend on a case just for the review portion.
• Judge Waxse likes to see both sides solving the e-discovery issues without spending a lot of money (and without involving him if possible).
• If one side proposes what appears to be a reasonable solution to an e-discovery blockade, and the other side cannot prove that the solution is UNreasonable, then Judge Waxse will probably side with you.

Laura Kibbe (Pfizer, Inc.)

• Contract attorneys are the most unreasonable method of review [(i.e. costs and accuracy across the dataset)], but it’s what we’ve been doing for years and years.
• [Referencing the study’s findings where human reviewers were less accurate than a computer-assisted review process, Ms. Kibbe declared:] the original dataset on the MCI-Verizon matter was wrong, but it was fine [(i.e. it was reasonable referring to Judge Waxse’s comment)]. So in reality, we just need to be ‘as bad as’ the Verizon set and we will be fine.
• Ms. Kibbe forces collaboration on her outside counsel by not providing even one e-mail to review until they sit down with the opposing side to hammer out a plan for the collection and review of ESI. She encourages openness and honesty stating that transparency does NOT mean you are showing all of your cards. (Craig Ball seconded her statement by adding that every step of the process, every algorithm, must be exposed to the other side.)

LegalTech New York has been in full swing this week. As usual, the exhibit floor was frenetic, stuffy, and chock full of suitcase-busting vendor schwag.

The best part of the show is always catching up with good friends (corned beef mountains included).

I attended two of the three keynote addresses and gleaned interesting tidbits from both:

Tom Allman kicked things off on Tuesday (2/5) with “The Evolution of E-Discovery.” (I ended up in the back of the standing-room only ballroom with good friend Tim Opsitnick.) Tom Allman is no stranger to this blawg, as I’ve followed his work in a past post.

After strongly emphasizing early discussion strategies, Tom called the amended FRCP 26(b)(2)(B) a “remarkable sentence”:

“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” (emphasis by Mr. Allman)

Tom pointed out that identifying what you will NOT produce is a new concept in the American legal system. Tom further explained that parties sophisticated in electronic discovery issues will first look at what data is easily accessible before making an ignorant blanket demand for all relevant data. It’s possible that everything they will need already resides in reasonably accessible data sources which means it would be unnecessary to expend resources on burdensome data restoration.

Tom stated that “intrusive discovery must yield benefits that outweigh burdens” and illustrated the point by contrasting two cases from the past year that produced exact opposite decisions:

Best Buy Stores, L.P. v. Developers Diversified Realty Corp. 2007 WL 4230806 (D. Minn. Nov. 29, 2007) - a “downgraded” database did not have to be restored.

In re Veeco Instruments, Inc. Securities Litigation, 2007 WL 983987 (S.D.N.Y. April 2, 2007) - backup tapes were required to be restored.

Next, Tom expressed his favor for the so-called “Safe Harbor” rule (FRCP 37(e)) and commented that most judges dislike the premise of this rule since it restricts their unfettered authority to justly and speedily adjudicate matters.

Lastly, Tom outlined the four main options that the individual States have taken in adopting rules governing the discovery of electronically stored information (see Patchwork E-Discovery in the States for further information):

1. Mirror the Federal Amendments
2. Make selective enhancements (cherry pick)
3. Provide trial courts with guidelines
4. Do Nothing

Thursday’s keynote (2/7) was a panel that included Andrew Drake (Senior Counsel, Discovery Management at Nationwide) and Pallab Chakraborty (Senior Manager, IT Litigation Support at Cisco).

Both of these gentlemen are on the veritable front lines of the corporate e-discovery tide, and had several insightful comments:

Andrew Drake (Nationwide):

• Deals with an average of 2,400 cases at any given time.
• Works hard to reduce the reliance on outside parties without increasing the risk of internal exposure.
• Suggests developing structured methodologies for collecting ESI and publishing the process for appropriate employees.
• Attributes the high volume of e-data to the “Office Depot” effect - the lower the cost of hard drive storage goes, the more data we see stored & archived.
• “If you don’t create a tape, then you don’t have a tape to produce.” (Mr. Drake was not suggesting Nationwide was following this procedure.)

Pallab Chakraborty (Cisco)

• Bringing ESI collection in-house can be efficient because certain custodians appear in almost every case.
• The move away from backup tapes to optical storage means that ESI is not preserved as long as it once was.
• Don’t forget to take into account the size of the index of a litigation document database, which can be 10% of the size of the database (i.e. 10TB database could create a 1TB index).

I hear so many attorneys declare that they don’t have to worry about e-discovery - either because they do not have huge corporate clients or that their clients aren’t “sophisticated” enough to use a computer.

My next question to them is usually “does your client use a cell phone?”

Where there’s a cell phone, there’s probably a text message. Text messaging is a simple, convenient, seemingly innocuous method of trading quick messages when a phone call or e-mail message might not be proper or possible. And because a text message seems like a private, innocent, little digital conversation between two tiny, insignificant mobile phones, inhibitions are routinely left at the keypad. But text messages, just like e-mail and all other electronic files, have a knack for sticking around, even through superficial attempts at deleting them.

The mayor of Detroit, MI found all this out the hard way. Mayor Kwame Kilpatrick and his female Chief of Staff, Christine Beatty, were apparently involved in an extra-marital affair several years ago. When a Detroit policeman on the mayor’s guard duty “blew the whistle” on the couple, he lost and job. He sued the city and when the mayor and Ms. Beatty took the stand, they denied that any relationship ever existed.

Last month, the Detroit Free Press obtained and released excerpts from at least 14,000 text messages sent between Mayor Kilpatrick and Ms. Beatty during 2002 and 2003 and now displays those excerpts for your convenience in both text and photos.

While I realize that many attorneys won’t have the mayor of Detroit as a client, it is important to remember that cell phones from anyone can hold relevant, discoverable information. As stated in a story from Crain’s Detroit Business (via edd blog online):

Kilpatrick and Beatty are public figures with fewer rights of privacy than most citizens. But once even private citizens start using company equipment in their communications — whether it’s e-mail from the office computer or text messages from the company cell phone or BlackBerry — expectations of privacy disappear.

A story from Maryland’s Daily Record entitled "How law firms are coping in the era of e-discovery" elucidates some of the practical aspects of how law firms are dealing with e-discovery projects.

One spotlight in the story shines on Bowie & Jensen LLC litigator Matthew Hjortsberg who is obviously very comfortable using the Internet. He admits to using the SEC’s EDGAR database, a Greek singles Web site, and the Wayback Machine in past matters for reconnaissance on the opposing party. He accurately states:

“Somebody said something someplace that appears in writing … on the Internet”

Next the story actually *gasp* quotes the Director of Litigation Technology at Bowie & Jensen - Tina Gentle. Don’t get me wrong, I have nothing against hearing the recycled warnings and same dry quotes about e-discovery from litigation attorneys, I’m just thrilled to see an actual litigation support professional included in a story about e-discovery.

Yes of course it is the attorney who is ultimately responsible for the success and security of an electronic document database, but it is the litigation support professionals who sweats through the essential tasks of creating and maintaining a workable document database, constantly training attorneys who neglect (and/or refuse) to learn how to adequately use the review application, keeping the document collection accurate when subsequent load sets appear, and interpreting abstract and inconsistent coding practices into conclusive production sets.

Ms. Gentle explains that the firm uses CT Summation iBlaze to host their litigation databases. The firm currently has 5 licenses, but has considered upgrading to the much more expensive CT Summation Enterprise suite to handle their growing needs.

Mr. Hjortsberg compares iBlaze to a Google search specifically for evidentiary documents and provides the golden quote:

"You load your documents into Summation and then you can do ‘bullion‘ [sic] searches."

(Obviously, I don’t hold Mr. Hjortsberg responsible for the loss in translation.)

Another spotlight in the story goes to Abby Rosenbloom, who is the director of business development for the Baltimore office of the attorney-staffing agency Special Counsel Inc.

Special Counsel is one of the many companies that can supply temporary contract attorneys for a large document review project. Ms. Rosenbloom explains that many of her clients now require contact attorneys to be experienced in tools like CT Summation, Concordance, or Ringtail.

Mr. Hjortsberg continues with some insightful comments:

“There’s a huge distinction between the economic haves and the economic have-nots in this e-discovery world. If you listen to people at a large law firm talk about e-discovery, it’s a completely different process than when you’re representing smaller clients. Before I suppose it was the ability to invest a lot of [associates] into a case; now it’s more like I’m investing in the technology tool.”

Maryland’s Chief U.S. Magistrate Judge Paul Grimm offers the fitting conclusion to the story:

“It’s not about the tools, it’s about the end result of the tools.”

Link to story.

CXOtoday.com appears to be an IT e-newspaper out of India and they have a short interview with Anil Chakravarthy who is VP of Symnatec India in "Making data easily accessible is a major need."

It’s a bit of a sales piece for Symantec’s Enterprise Vault which is "a software-based intelligent archiving platform" for e-mail systems and file server environments. This is the same Symantec that produces the Norton line of consumer products, but I keep hearing more and more about their business/enterprise products, and especially Enterprise Vault.

Back to the "interview" - I do like the way Mr. Chakravarthy succinctly describes the benefits of archiving (not just e-mail, but electronic files and databases too):

"Archiving helps in offloading historical data from production resources [and] reduce[s] the time it takes for in-house counsel to retrieve electronic evidence in response to a discovery request."

I also found a good blog post noting the "Difference between Email Archiving and Email Compliance" from Cryoserver (a company I’ll write more about soon).

"Email archiving is the management of your exponentially growing email archives onto a different storage media, this might be a local drive, into a .pst file, printing off the email onto paper and sticking it in the client files, or possibly moving the email onto alternative storage media. … [E]mail compliance … requires the emails to be kept for compliance and legislative purposes in a central repository … [which] should not be able to be tampered with in any form. [A]ny access … to this central repository should form part of a formal procedure with auditing to comply with the privacy legislation."

I think this distinction is too simplified (probably to fit it inside the blog post), but it certainly illuminates the glaring struggles that IT administrators have to grapple with in designing their systems for compliance/e-discovery/risk management purposes, all the while working with attorneys, records managers, etc.

I’m going to think about this some more, but perhaps the best way to conceptualize this is to think of "compliance" as providing the rules and regulations for what to save and when, and "archiving" provides the means/methods/tools for following the compliance rules.

Whatis.com provides a good definition of "e-mail archiving" but I like how PCmag.com concisely states it:

"Retaining e-mail messages for historical purposes or to be in compliance with many industry regulations."

Link to CXOtoday.com story and Cryoserver blog post.

I discovered a new e-discovery blog today that I’ve added to the blogroll - E-Discovery Bytes from the Quarles & Brady LLP law firm.

Their post “The Problem of Reviewing Electronic Data” caught my eye because it pointed to a ComputerWorld story entitled “Security Manager’s Journal: E-Discovery Prompts a Second Look at Data Retention.” I always perk up when I see an e-discovery story from a non-legal-related source.

The ComputerWorld story records the struggle of a IT security manager (who could be from any company) in comprehending how legal rules written by and for lawyers could have such a profound effect on his every day activities. The only way he heard about the rules was because the general counsel at his company attended a dinner sponsored by an e-discovery vendor.

The story reveals the tortuous balancing act that so many IT professionals have to face when deciding how much data to save. On one hand, you have to backup employee e-mail for disaster recovery and business continuity. On the other hand, this requires ever-increasing storage space and heightens the possibility that you’ll have to expend enormous effort and time to produce relevant e-mails when the company is involved in litigation.

For some IT managers (including the author of the ComputerWorld article), dealing with e-discovery might just drive them to “turn back the technological clock:”

“For paper information, it’s simple: Point the lawyers to the file cabinets and tell them to have a good time.”

Link to story.