Category: Litigation Hold

A good article (”Tech Firms Pitch Tools for Sifting Legal Records“) from the Wall Street Journal hammers out some of the tension between automated e-discovery tools and the hesitancy of lawyers and law firms to embrace “the machines.”

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.

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."

I REALLY like how Keith Ecker starts off his story “Cartographical Challenges” on InsideCounsel.com:

“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.

A story on CIO.com entitled "Electronic Discovery: Are You Really Ready?" discusses a survey done by IDC (commissioned by FTI Consulting Inc.) of 118 IT executives on their e-discovery readiness.

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.

My article “The Easy Button” recently posted on InsideCounsel.com where I take a look at four vendors that provide tools for searching and analyzing e-mails. The four vendors mainly sell their products to in-house counsel with the alluring appeal that in-house attorneys can search employee e-mail and discover potential smoking guns before the litigation trigger is pulled.

The four vendors I talked to for the article were AXS-One, InBoxer, Clearwell Systems, and Estorian. Each vendor enjoys a certain sweet spot.

I wanted to talk to AXS-One after I read the great story on ComputerWorld.com about how KeyBank adopted the AXS-One Compliance Platform to help manage the laborious process of collecting and producing e-mails from their 300TB e-mail archive. The story provides a rare insight into how major corporations are dealing with the stress of complying with e-discovery requests.

I am very impressed with InBoxer and have blogged about the company in the past. The big seller to me with InBoxer is that it’s so easy to deploy – you either pop in a rack mounted server or install the software in a virtual appliance and it’s ready to go within an hour, or even a few minutes. In-house counsel search and analyze employee e-mail through an online interface (you can visit www.enronemail.com to test out InBoxer for yourself).

I’ve been following Clearwell for a while now, and I believe they have one of the most intuitive interfaces of the group. They made it very clear to me that they are not an e-mail archiving system, but that they work complementary to systems you may already have set up from Symantec or EMC. A Clearwell system can also get up and running very fast, and provides such a comfortable interface that I can see where some users may not even need training.

And lastly Estorian offers an interesting alternative to the slick-ness of InBoxer and Clearwell. Estorian’s LookingGlass software may not look as pretty, but I found that it provides an extensive array of options for searching, monitoring and saving potentially risky e-mail messages. The company views LookingGlass as more of a compliance tool because users can easily set up searches to automatically and continuously monitor employee e-mail for risky keywords.

I foresee in the near future that every corporation will have some sort of e-mail analysis tool constantly monitoring employee e-mail. And why not? In this country, the company owns the e-mail and has the right to read every message sent by an employee through the company-owned servers. Companies that purchase tools such as the ones mentioned above will enjoy a) the comfort of knowing that something is policing the e-mail servers for naughtiness, and b) the ability to quickly search and secure e-mail messages that are relevant to the latest litigation matter that flys across their desk.

Link to my article.

Rich Wersinger is a Technical Trainer at Fios, Inc. and authors a short article entitled “Hot Tips for Effective e-Discovery Review” (via In Re Discovery).

Rick offers three tips but the first one called “Bulk Categorizing for Smart, Efficient Document Review” is worth the whole article. He describes a scenario where a major custodian in a product liability suit subscribes to a daily business newswire e-mail message. That means his e-mail file will have a ton of messages that will ultimately be irrelevant to the present matter. Note, however, that with a simple keyword search, many of these messages may get returned as relevant.

Rick suggests taking a “proactive approach to identifying patterns of documents that are clearly not relevant to your matter.”

For me, the tip emphasizes the importance of actually interviewing major custodians or “key players.” It’s not enough to simply grab their entire e-mail file, you need to obtain a big picture idea of how they use e-mail and understand some of their e-mail habits.

This requires a more hands-on approach to a collection project. This won’t make the custodians happy because they have to answer more questions, but it is absolutely necessary for reducing costs.

If you can eliminate and filter out huge groups of e-mail messages from a single source like the daily news bulletins, stock quotes, weather updates, or fantasy football scores, then you could drastically cull down the e-mail file before having it processed by your vendor. This will save a lot of money both on the processing side as well as the review time.

Link to “Hot Tips.”