Orange Legal Technologies recently posted their “Pricing Estimation Tool” on their Website which is an excellent tool that provides at least a framework for estimating the costs in e-discovery projects today. As far as I know, this is the only e-discovery vendor to offer any kind of tool like this, and I applaud Orange for doing so.

One of the most common complaints I hear from attorneys and litigation support professionals is that it’s so incredibly hard to get an accurate cost esitmate from vendors because everyone prices on different terms and models. Orange’s Pricing Estimation Tool may not be perfect (and perhaps a little biased towards their own services), but at least it’s  start.

The Webinar features my good friend Tom O’Connor who will most certainly provide a balanced and experienced voice on the topic.

Register for the Webinar at http://orangelt.us/2008/10/05/comparing-apples-and-oranges/.

I’m obviously capitalizing on a popular upcoming Fall holiday, but I detail the important differences between a forensically-sound “image” of a hard drive and a “Ghost” copy.

Link to article.

In reading the piece, Carolyn Elefant on the Legal Blog Watch was reminded of John Henry, the steel-drivin’ man who beat a steam-powered machine in hammering railroad spikes, but died in the process.

Ron Friedmann believes that the article “oversimplifies the issue” of “lawyers trying to protect their billable hours, … but does alert corporate managers (think CFOs and CEOs) … to more cost-effective ways to approach litigation.” Like Ron, I’m just glad to see coverage of the topic in the WSJ.

The WSJ piece reports on how HP, Xerox, EMC, and IBM have jumped into the market of providing automated solutions for collecting, preserving and producing electronically stored information. The fact that these companies have taken a bite of the e-discovery industry tells you that they see something important and profitable.

Here’s a great example from the story:

“One company saving some cash is Comcast Corp. When outside lawyers working for the cable company recently requested thousands of archived documents for a court case, Genny Garrett, who is in charge of managing Comcast’s records, found them by doing a search from her desktop computer. The lawyers ‘were surprised,’ she says, that ‘they didn’t have to wander around a warehouse’ looking for records, a task that once generated big legal fees.

Comcast uses software from Tower Software, which was recently acquired by HP. Comcast is obviously very happy with their purchase:

“[The software] archives and classifies employee e-mails and other documents as they are created. The system also creates inventories of paper records, Ms. Garrett says, so she can locate and retrieve documents by using computer searches. She says the software has saved thousands of attorney hours over the past few years because Comcast gets about 400 legal-search requests annually, many related to claims that arise when technicians visit customers’ homes.”

I do take issue with a comment in the piece from Michael Lynch, chief executive of British software company Autonomy Corp., which last year acquired e-discovery company Zantaz for $375 million:

“Lawsuits increasingly rely on electronic documents being produced early on, feeding demand for tools that help archive and retrieve those records, a process known as e-discovery work. Much of that work requires little brainpower or legal training, says Michael Lynch.”

Perhaps Mr. Lynch is simply referring to the “hit this button” simplicity that some of these systems theoretically provide once they are properly set up and completely integrated into the enterprise-wide information systems of a company. Pressing a button does not require a lot of “brainpower or legal training.”

But implementing systems like what Zantaz offers requires an incredible level of sophistication and experience. Otherwise, the project will fail at worst, or at best bleed a lot of money. I would guess that Mr. Lynch would agree and offer the experience of the professionals at Autonomy/Zantaz to ensure a smooth rollout.

Otherwise, you might have this scenario:

Robert Brownstone, [a partner with Fenwick & West], tells of one client who declined to have attorneys oversee an email archives search, thinking internal IT staff could do a cheaper automated search. The IT workers disposed of files that, legally, had to be retained, he says. They were recovered, but only after the company paid Fenwick lawyers extra to fix the problem

I have seen this first hand – a law firm will offer to assist their big corporate clients in identifying and collecting relevant ESI for a litigation matter, only to have the client decline the help. In-house counsel are easily persuaded by internal IT resources that believe they can accomplish the job and save immensely on the associated costs.

No one can blame in-house lawyers for wanting to save on external legal expenses. And I believe that’s why we are seeing so many more corporations like Comcast taking a bigger role in managing their internal data with an eye towards being better prepared for inevitable litigation matters.

So to be fair to both sides, automation in discovery is coming and coming strong – there is no denying that. But it is immeasurably important to have the crucial legal analysis involved as well. True a machine may be able to drive railroad spikes quicker, easier, and more efficient than a man with a hammer, but someone still has to flip on the switch at the right place and at the right time.

Link to WSJ story.

UPDATE Monday, Aug. 25, 2008: Michael Lynch’s comment (“[e-discovery] is work that requires little brainpower or legal training”) got under Ralph Losey’s collar too:

“This comment demonstrates a real antipathy between Law and IT. It also illustrates a lack of understanding or appreciation as to what each side [law and IT] really does. … For most of my career, the IT guy (and yes, it always used to be a guy) received about as much respect in a typical law firm as the copy machine repair man – not very much. Even when they were later hired as full time law firm employees, techs were (and in some firms still are) considered rather dimmed witted necessary evils, with lower status than secretaries, and nowhere near the status of a paralegal.

…This antipathy leads to widespread misunderstandings and miscommunications between lawyers and computer technicians. This is just mildly annoying for most lawyers and techs, but for specialists in e-discovery it is a disaster. That is because e-discovery is a blend of the two professions. It can only work properly when lawyers and techs work together and cooperate.”

Ralph then provides an outstanding example of the communication breakdown that regularly happens between law and IT by eloquently analyzing Kevin Keithley v. The Home Store 2008 U.S. District LEXIS 61741 (August 12, 2008) (.doc format, graciously hosted on Ralph’s blog).

A few more choice quotes from Ralph (the whole entry is lengthy, but WELL worth a read-thru):

“…the practice of law is an art, not a science, and the human element can never be replaced by technology.

Information Technology and the Law are both honorable occupations. We must learn to work together to meet the challenges of e-discovery. This is a plea for mutual respect and cooperation.”

Link to Ralph’s post entitled Tech v. Law – a Plea for Mutual Respect.

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."

“When it comes to e-discovery, the proactive approach will always trump the reactive.”

Companies and corporations are starting to realize the incredible benefits and cost-savings of taking a proactive approach to electronic discovery.

Keith continues on to explain the practice of “data mapping” – a necessary exercise for any company that foresees turning over electronic data as part of a civil litigation matter.

The Advisory Committe Note to amended FRCP 26(f) states that when the parties are discussing the issues that they must address in the Rule 26(f) conference, “it may be important for the parties to discuss [their information] systems, and accordingly for counsel to become familiar with those systems before the conference.” (See p. 21 of this PDF)

So what is the best way for counsel to ”become familiar” with their clients’ information systems? They don’t teach System Administration 101 in law school (and by the way happy belated SysAdminDay to all you fine folks out there).

As the Identification node of the EDRM project states, a “network diagram” is a good place to start, but that alone is not going to be the most useful for pinpointing where relevant data is hiding. Every IT system administrator is going to have a map of the network and systems that they are responsible for (if even just in their head), but those diagrams will certainly strike fear in the hearts of any lawyer trying to make sense out of them.

While most network diagrams simply show how computers and systems are linked together, Keith states that data maps can only be useful to the legal world if they actually “capture what type of data lives where.”

“For example, the map should show which repositories contain customer information, financial information and information regarding IP. This way in-house counsel can pinpoint data for a case and act fast to institute a legal hold.”

Ralph Losey has a great page on data maps on his e-Discovery Team blog (complete with fear-inducing network diagram examples). He mentions that for a data/computer map to be useful in a legal context:

“… it should include detailed indexes and explanations that provide a complete inventory of an organization’s ESI [electronically stored information]. The map will not only show locations, but provide information as to the types, amounts, and accessibility of ESI, the metadata associations, and the frequency, difficulties and costs associated with restoration of inaccessible ESI such as backup tapes, and the recycling schedules for these tapes.”

Ralph’s suggestions are more easily said than done. It would be great to have all this information handy for the next time you have to respond to a production request. But Keith reports the reality:

“People put off [data mapping] because they have bigger fires nipping at their heels, but it is something you need to do,” says Brad Harris, director at Fios Inc., an e-discovery consultancy. “It is costly and very risky if you don’t. However, it is fairly onerous to take on.”

A workable, effective, and accurate data map for e-discovery purposes takes time to create, and the project must be spearheaded by someone who understands both the technical terms and the legal obligations.

Creating a data map is a team effort, with participants from the legal and IT departments, as well as records management. The RM folks will have a whole other layer of policies and procedures that will play into the accessibilty of a corporation’s electronic data.

Link to “Cartographical Challenges” by Keith Ecker.
Link to “Maps” by Ralph Losey.

In contrast to the majority of surveys on e-discovery preparedness (such as this recent one from Xerox Litigation Services), this story reports that many of their respondents are actually "confident about their current abilities to respond to a litigation event" because a lot more attention is being paid to records management, archiving and information retention policies.

However, the data from the survey highlights an urgent need for organizations to adopt standardized policies and IT practices for activities related to the identification, preservation and collection of potentially responsive data.

The story states that nearly 79% of the IT executives surveyed rated their ability to respond to a litigation event from "above average" to "very well prepared."

Other choice sentences from the story:

IDC’s research concludes that corporations are enforcing the legal hold on an application and content-store basis.

While 86 percent of survey respondents claim to have formalized litigation communications policies in place, adoption of standardized processes and the ability to automate and document communications across records management, legal and compliance departments is lacking.

Approximately 55 percent of the companies surveyed are still in the early stages of automating the litigation communication process, 29 percent are using voice communications and in-person notices and 13 percent are still using paper-based surveys.

I have my usual spate of questions here: What defines an IT executive in this survey? Is it a CIO? An administrator? And are these IT executives at law firms or corporations?

Fortunately, my questions should be answered in the FTI/IDC Webcast on June 19 that will present the full findings from the study.

Link to story.

Here are 5 of my favorite from the list:

1. Since we are not presently involved in a lawsuit, there is no need to concern ourselves with these new rules. The reality is that there need not be an active lawsuit or court order in place for there to be an obligation on a business to preserve ESI.
2. If we were required to save data every time a lawsuit is threatened, our company would be crippled and we’d lose our business. The reality is that the new rules recognize this problem and provide that a party need only preserve relevant ESI.
3. Even if we were to lose relevant ESI evidence, the loss was accidental and not intended to destroy harmful information; surely a court would understand. The reality is that even accidental or innocent loss of relevant ESI is sanctionable when it could have reasonably been prevented.
4. Many of our employees work from home and use their own personal computers; therefore, we don’t have to worry about those computers. The reality is that the new rules widen the scope of ESI to include personal home computers, cell phones, copy machines, fax machines, voice-mail, instant messaging, PDAs, websites, flash drives, etc. As long as your employees are working for you, it does not matter where they are located or what device they are using to generate electronic information related to your business.
5. We’re too small of a business to have to worry about these changes. The reality is that if you are a business with a computer or any other device that generates electronic data, you are within reach of the new rules.

Link to story.

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 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.

"For the past several years, in-house litigators have been bombarded by swarms of consultants, vendors, and outside counsel reciting the potentially catastrophic effects of the 2006 amendments to the Federal Rules of Civil Procedure (FRCP)."

Mr. Perkowski accurately characterizes the FUD that has surrounded the e-discovery industry for several years now and likens it to the apocalyptical panic of Y2K.  There’s a reason that 2006 commercial EDD revenues were $2 billion, up 51% from 2005, and expected to be around $4 billion by 2009. Yes those numbers mean that there is a true need for e-discovery, but as Mr. Perkwoski states, "e-discovery is not too different from any other form of discovery," so there has to be a better explanation for the millions of dollars burned on e-discovery services every year – perhaps there’s a little FUD infecting the industry if we were honest about it. Fear is an effective and motivating marketing tool.

Mr. Perkowski’s pivotal point in his column is that you should involve and educate your IT group, which is a most noble suggestion.

"…engage the IT department. Make it your best friend … they have a much better chance than you of knowing where the employees store data."

Interacting with your IT department is absolutely imperative in my opinion. But I would guess the reality is that most in-house attorneys couldn’t even tell you where their company’s IT department is located, much less be able to tell you the full name of a help desk grunt, or a network administrator. Attorneys and techies have historically abided as oil and water; and in my experience, that’s a big hurdle to overcome.

I appreciate how Mr. Perkowski states, "once you have found your IT department, … charge them with locating electronically stored information (ESI)" (emphasis mine). Simply finding the IT department is a good first step for many in-house counsel.

Towards the end of his column, Mr. Perkowski offers some beneficial nuggets of advice for dealing with outside counsel on your e-discovery projects:

"To keep a lid on the scope, you need to keep a keen eye on outside counsel. All too often, outside counsel collaborate with opposing counsel and agree to overly broad word searches. Sometimes that’s due to an abundance of caution. But it’s also because law firms assign e-discovery responsibilities to relatively inexperienced lawyers. Tell them you don’t think much of that staffing practice."

I’m sure Mr. Perkowski speaks from experience when he laments that many "law firms assign e-discovery responsibilities to relatively inexperienced lawyers," but why is this true? I offer two reasons:

1. the "e-discovery responsibilities" are not considered as important as other tasks on a litigation matter at a law firm, and
2. most of the experienced partners at a law firm are utterly confused and probably terrified about e-discovery concepts so they delegate to "inexperienced" associates who will NOT say no.

I was thrilled to see Mr. Perkowski’s column provide some insight on the tough issues of e-discovery from an in-house perspective, and I would be grateful to see more attorneys in his position share their thoughts.

Link to column.

P.S. Readers might also be interested in my recent article for Inside Counsel magazine’s InsideTech section entitled “E-mail Emergencies” where I discuss some simple steps for managing the risk found in employee e-mail.