Category: Ethics

I was reading over Cliff Shnier’s June 2008 column on InsideCounsel.com entitled "A time to reap, a time to cull." It is an excellent, concise overview of the workflow required for a successful e-discovery project, sprinkled with several doses of common sense on collecting and processing ESI.

Toward the end, Cliff discusses the perils of too-hastily concocting a list of keywords used for filtering and culling electronic data. He points readers to In Re Seroquel Products Liability Litigation, 244 F.R.D. 650 (D. Fla. 2007) (generously hosted on the Electronic Discovery Blog; good cases summaries located here and here).

I dug a little deeper into the case, and discovered a fascinating litany of delinquent behavior surrounding basic principles of e-discovery. The Court was not happy.

First, the Court lists the shortcomings of defendant’s production:

"… although [Defendant] has a system to deliver voicemail, faxes, and video into Outlook inboxes, none has been produced; there are few emails from some custodians, and email boxes are missing from alternative email boxes. Plaintiffs also contend that many relevant emails and documents were not identified and produced because [Defendant] performed an unreasonable key word search."

And in a footnote, the Court provides some examples of words and phrases that were omitted from the "unreasonable key word search:"

"Seroquel’s generic name [(The case involves a slew of cases over the anti-psychotic drug Seroquel)], acronyms for diabetes, hyperglycaemia spelled the British way; and endocrine. The search method apparently failed to include common misspellings or the singular forms of words and failed to make allowance for spaces or dashes."

The Court doesn’t let the issue rest:

"The key word search was plainly inadequate. … While key word searching is a recognized method to winnow relevant documents from large repositories, use of this technique must be a cooperative and informed process. rather than working with Plaintiffs from the outset to reach agreement on appropriate and comprehensive search terms and methods, [Defendant] undertook the task in secret."

As you can imagine, the Court would have rather the parties agreed on a set of key words together. I especially like how the court ever-so-gingerly emphasized the importance of having technical expertise at these meetings:

"Many of the other technical problems identified by Mr. Martin and Mr. Jaffe [e-discovery specialists for the plaintiff] likely could have been resolved far sooner and less expensively had [Defendant] cooperated by fostering consultation between the technical staffs responsible for production. Instead, [Defendant] shielded its third party technical contractor from all contact with Plaintiffs. This approach is antithetical to the Sedona Principles and is not an indicium of good faith."

After dismissing other arguments from the Defendant, and recognizing that many of the disagreements could have easily been worked out in a more efficient manner, the Court provides a strong conclusion:

"The Court finds that [Defendant] has been ‘purposely sluggish’ in making effective production to Plaintiffs. … It is undisputed that the [completed production] … had load file, metadata, page break and key word search problems, making the 10 million pages of documents unaccessible, unsearchable, and unusable as contemplated under the Rules."

The August 2008 Newsletter from the Association of Litigation Support Professionals (ALSP) discusses several aspects of project management involved in e-discovery projects and litigation support.

Just a few posts back, I linked to a great column on Slaw.ca that emphasized the importance of project management in e-discovery. Perhaps the legal world is finally realizing that it takes a lot of significant resources to plan and manage a successful e-discovery project. Project management isn’t just simply "good planning," it’s a technical discipline that has it’s own certification process.

First up, Caroline Sweeney from Dorsey & Whitney LLP authors "Project Management in Document Review" and lays down some excellent bullet points for better managing document review projects:

The first step in any project is to define the scope and associated timeline. The scope and timeline can always be refined, but starting with a series of assumptions allows for development of a solid project scope definition.

Sweeney also discusses the benefits of a formal training program, daily monitoring exercises, and quality control checks.

Next, Barbara Bennett from Dickinson Wright PLLC writes "Customized Software: A Helpful Tool for Tracking and Managing Litigation Support Projects" to describe how her firm is utilizing Microsoft SharePoint to track the details of their internal e-discovery projects including:

• vendor information
• media tracking
• custodian information
• costs
• data collection forms

Lastly, Michael Potters of the Glenmont Group shares some compelling reasons why project managers are highly sought after for today’s e-discovery endeavors in "Rx for Success: Top Quality Project Managers."

Link to PDF version of newsletter.

A very insightful column on Slaw.ca today by Debbie Westwood of the InTechGration Consulting Firm who declares that the biggest challenge facing lawyers in e-discovery is NOT the volume of data, new technology, or the jargon; but the lack of planning.

“Litigators are not known for being proactive. Reactive litigating is not the way to handle eDiscovery.”

Debbie boldly states that “planning is boring.” That phrase accurately defines the mindset of high-strung and stressed litigators. Nobody has time for contemplating the specifics of “that e-discovery stuff.”

But as Debbie points out, failing to plan and manage all the details of an e-discovery project “will result in significantly and unnecessary higher costs (and much higher risks) for your client.”

I wholeheartedly agree with Debbie’s assertion that e-discovery professionals MUST utilize project management techniques in their work because it may be the only way to apply a formal framework to the craziness that will inevitably ensue.

Managing an e-discovery project is much more than just having a general goal or overall plan. As Debbie points out, the most effective project managers will facilitate communication among the team, nit-pick about all the little details that others try to ignore, and provide an important source for all those “what-if” scenarios that only experience with past projects can teach.

Link to column.

With all the talk about preservation and document retention, many people overlook the equally important issue of “destruction.” It is imperative that you devise a consistent and workable retention policy for e-docs, e-records, and e-info so that you are keeping only what you need to keep. But beyond that, you must also ensure that unnecessary data is absolutely destroyed.

Data destruction sounds like it should be an easy process. After all, you could simply hit the delete button or re-format the hard drive. Of course, it’s not that easy.

One of the best articles to address this issue is a 2003 piece by Simson Garfinkel entitled “Remembrance of Data Passed: A Study of Disk Sanitization Practices.” Simson acquired 158 used hard drives mainly from eBay and analyzed them to see if they had recoverable information. Even though the majority of the drives were “freshly formatted,” the exercise revealed a plethora of coporate, private, and pornographic material.

Simson’s study also looked at the effectiveness of sanitization and erasing programs. Another method of erasing a hard drive is degaussing which uses strong magnetic fields to deconstruct the storage of data on hard drives and other magnetic media.

All of these methods of data destruction have shortcomings as outlined in an article by Dan Bayha, Vice President of Back Thru The Future Computer Recycling, Inc. (otherwise known as “BTTF”).

I was fortunate to meet Melanie Haga, president of BTTF, in August at the ILTA Annual Conference. I was impressed with BTTF’s unique services and especially their commitment to recycling. I picture BTTF as a giant funnel with humongous steel teeth at the bottom. Into the top go old hard drives, backup tapes, USB memory keys, CDs, DVDs, PDAs, and cell phones and out comes itty-bitty bits and pieces at the bottom.

Proper data destruction isn’t just about mangled electronic media. BTTF has partnered with Dunbar armored transport to make sure your condemned media is secure throughout the entire destruction process.

The mangled scraps get reincarnated into a variety of products because BTTF recycles all of the metals and various substances found in the electronics.

I’m not the only one impressed with this company. American Lawyer magazine ran a great story entitled “Appetite for Destruction” and the New Jersey Law Journal ran a piece entitled “Shred It or Dread It.” Sharon Nelson over on her Ride the Lightning blog mentioned them as the place to go when “you really, really, really want to be sure that data is gone.”

I agree with Sharon that BTTF may be one of the best ways to be absolutely sure you’ve destroyed data because otherwise you could be taking a chance that some data will be left behind.