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E-Discovery preparation and permenance

Document review has become a major profit service for law firms. This gives an inlet to new technologies that allow smaller law firms to take clients they would never normally be able to handle. Additionally, E-Discovery takes the responsibility out of the domain of Industry Titans Instead of making them enlist a large pool of high cost attorneys. This has created scalability that is leveling the playing field in litigation services. Litigation services are crucial to consult even before a lawsuit or any type of litigation takes place. Third party E-Discovery support allows small and mid-sized firms to keep rates low and quality high in order to compete with Industry titans. This is largely achieved through pooling associates when needed and providing IT systems to keep up with demand.

For this system to work smoothly for boutique competitors These Services help to implement; Preparation tactics, document reduction policy, Data mapping assistance, internal investigation, and frequency Data management needs. Third parties also help smaller firms by exploiting their ability to use review software and hire review teams as needed, without carrying infrastructure and head count costs year round. Another added benefit of the E-Discovery industry is the displacement of the larger Discovery firms. These firms often work with current small outside counsel and just handle discovery, but end up taking whole case.

Third parties use SAAS or service as a solution for optimal price scaling on the fly so that production of evidence and overall cost control stay within reasonable boundaries. Working with third party litigation services is also important post litigation. Working with your provider you can easily identify pain points in order to avoid similar occurrences in the future. Lastly Document review is done by custodians and forensic analysts. Making sure that your company aligns with the decisions made by these key players ensures a continuous feedback loop and results in better preparation for any type of litigation activity in terms of quality and validity.

All of these factors point to the fact that the E-Discovery isn’t going anywhere, Instead it is rapidly expanding. Data mapping assistance, internal investigation procedures, and technology migration provide robust business development opportunities downstream for legal work. As the usage of electronically stored information (ESI) increases, inevitably so will the mid-sized firms assigned to handle the tasks that are an externality of this data. If A firm adopts a third party litigation service and educates staff on the risks of their electronically stored information they are much less likely to end up spending superfluous amounts on the costs listed above than if the litigation was never outsourced in the first place.

Government Investigations in E-Discovery

One of the biggest fears an organization faces is a government issued subpoena. This is NOT the point at which you should begin data collection as it is both costly and time consuming, because unlike traditional litigation there is no negotiation in the scope of discovery and prevention. At this point you have to consult the counsel, whose role is to advise the client on the collection and production of pertinent data. These types of data include ESI, which is defined as any electronic form that may be subject to production under common E-Discovery rules.

Generally speaking, most subpoenas that lead to requesting production of information is done by one of its cabinet based agencies. These agencies include; the SEC (Securities and Exchange Commission), the DOJ (department of justice) and the private corporation FINRA (Financial Industry Regulatory Authority). These subsectors of the U.S. Government are important to E-discovery and play a pivotal role in the compliance of data delivery. The Counsel relies on third party source providers in this field to respond to these inquires.

These agencies can be intimidating if your business receives a subpoena for investigation. To make sure you stay compliant you should be aware of the following guidelines. In DOJ E-Discovery there has been a new ESI Discovery protocol implemented in February of 2012. The protocol has goals that include promoting uniform best practices for recurring issues and protecting the security of sensitive information produced as discovery.

As a client you want to protect yourself from producing incriminatory evidence unintentionally. This does not mean that you shouldn’t comply with the FCPA program requirements, Instead companies should adhere to the rules as it may result in mitigation credits or escape of prosecution entirely. The key is to disclose all the facts relevant to the wrongdoing to the DOJ, but not more than is required by the FCPA pilot program. This is where E-Discovery providers step in to streamline the collection of relevant data and to discard data that is irrelevant. This in return motivates corporations to have more strict compliance programs in place in order to legally protect themselves by expediting the process of a government investigation and protect themselves from unnecessary prosecution. This can result in a huge difference in penalization when it comes to producing ESI data to a prosecutor.

A Look Back at Native Files in eDiscovery

Legal discovery review has come a long way in the last 15 years to find solutions around the growing volume of email and edocs. While we wait for the next generation of computer assisted review to fully arrive, let’s revisit human review of native files. Reviewing native files is more defensible and efficient during the review process, and reduces production costs as well.

Native files allow reviewers the opportunity to look at docs as they existed to the original custodian, including all the preserved metadata for searching. Batching the file types, such as spreadsheets, by a custodian or keyword will also speed review. Legal teams employing experts to review industry specific docs, think construction defect, can avoid the costs and delays of copying/printing and delivering hard copies by granting access to review databases housing the native files.

There are different types of native files. There are true native files, which are completely original and near native files, which are converted but still have metadata and are searchable. Near paper files are PDF or TIFF files that cannot be searched or indexed, and paper files that are files printed to paper. The best advice about producing files is to follow the “meet and confer” rule and figure out what information will be need to be produced during litigation. Doing this as early as possible makes the process run smother and be less stressful. It is always important to retain metadata and files even if you are unsure if it will be relevant.

Keeping files in their native form makes your case more defensible because they are more transparent and accurate. If a defendant cannot produce native documents, than a strong case is to be made about the superiority of native files. There are tools and resources available to keep native files in order and accurate. The human review of native files is still very prevalent in the eDiscovery industry and staying up to date and organized can save you a lot of hardship should litigation issues arise.

 

Emаіl Arсhіvіng Solutions Enѕurе еDіѕсоvеrу аnd Imрrоvеd Stоrаgе Management

 

Evеrуdау corporations send and receive massive volumes of emails, both internally and externally. Enterprise email archiving systems have been the most recent solution to manage the storage and retrieval issues emails present. The alternate option is to destroy email that is old or migrate it to a new system. Most executives at Fortune 1000 companies will say the natural instinct is to keep all email in one form or another. Here is how both options affect a company when facing litigation.

Email archiving is popular its services move data to an off-site server, so that it is not in the way. Email archiving also makes the the restoration of data process faster when it is necessary. Moreover, email archiving has a high standard of security that is not present in a live inbox account. Producivity can also be enhanced as a result of email archiving because when your live servers are filled with email data they run slower. Lastly, it makes it a lot easier to comply should issues arise where you need to provide prior information from emails.

One argument against email archiving is that some believe that it is not to be trusted. There have been accounts of index corruption and inconsistent search results. Another argument is that even if you can find the data, exporting it is a whole other timely process. An alternative is to use a third part tool to search data, but most eDiscovery tools don’t do this.

The uѕаgе оf еmаіl communication wіll соntіnuе tо rise іn the соmіng уеаrѕ. Aѕ per the “Email Statistics Rероrt, 2012-2016″ conducted bу Thе Radicati Grоuр Inс., “In 2012, the numbеr оf businesses еmаіlѕ ѕеnt and received реr dау tоtаl 89 billion. This fіgurе іѕ еxресtеd tо grow аt аn аvеrаgе аnnuаl rate of 13% оvеr thе nеxt four уеаrѕ, rеасhіng оvеr 143 bіllіоn by уеаr-еnd 2016.”

The Imроrtаnсе of еDіѕсоvеrу Education

Listening to lawyers can be confusing (and expensive) to non lawyers. Trying to make sense of the rapid fire lingo of legalese can feel like you’re auditing a Russian 404 class. The legal industry constantly adapts to new precedents, changes in laws, politics, as well as technology.

Most attorneys did not get in to law school because of their love of IT and they ѕtrugglе the shifting landscape of еDіѕсоvеrу. Sure, there is no shortage of eDiscovery focused CLEs, but most are masked sales pitches, or an hour spent discreetly checking email.

Avoiding the fire and brimstone speeches and examples surrounding eDiscovery incompetance, most attorneys will need some eDiscovery education. There are too many examples of the “head in the sand” approach to eDiscovery to expect much patience from the courts. Let’s take a look at an аllеgаtіоn оf malpractice duе to аn alleged еDіѕсоvеrу misstep in J-M Mаnufасturіng Cоmраnу, Inс. v. McDermott Wіll & Emery (Cаlіfоrnіа Suрrеmе Cоurt, Lоѕ Angеlеѕ Cоuntу — Cеntrаl Dіѕtrісt, Case No.: BC 462832). Thіѕ саѕе has bееn dubbеd “thе fіrѕt еDіѕсоvеrу mаlрrасtісе саѕе.”

Aside from the threat of mаlрrасtісе, look at the ethical еxресtаtіоnѕ of competence whеn hаndlіng eDiscovery. Yоu may rеmеmbеr ABA Model Rule 1.1 оn соmреtеnсе. However, thе ABA аmеndеd the comment tо thіѕ rulе іn 2012 to ѕау:

“Tо maintain thе rеquіѕіtе knоwlеdgе and ѕkіll, a lаwуеr should keep аbrеаѕt оf changes in the lаw аnd іtѕ рrасtісе, including thе bеnеfіtѕ аnd rіѕkѕ аѕѕосіаtеd with relevant tесhnоlоgу, engage іn соntіnuіng ѕtudу аnd education аnd соmрlу wіth all continuing legal education rеԛuіrеmеntѕ tо which thе lаwуеr is ѕubjесt.”

Thіѕ lаnguаgе certainly dоеѕ not mean thаt lawyers must become еxреrtѕ іn tесhnоlоgу. However, thіѕ оvеrt rеfеrеnсе to technology makes it сlеаr that attorneys must accept technology as a central part of modern law practice.

The legal industry changes are not just limited to the topics discussed here, but include changes in legal fees and business development. More and more modern rainmakers are also eDiscovery savvy, and it is not by coincidence. Look for that article to come..

Managing Data Efficiently for eDiscovery Cost Control

Cоmраnіеѕ adopt new tесhnоlоgіеѕ quickly tо keep pace with productivity and evolving trends of their industry. Often the new tech contains еlесtrоnіс dаtа ѕtоrеd оn company hard drives, servers, сlоudѕ, smart рhоnеѕ, іPаdѕ, laptops, and other devices. In short, having too much data can be a liability in the event of litigation. The costs to collect and process data for discovery is typically based on size or number of gigabytes, before even getting to costly attorney review hours. Responsibly designed document retention and deletion protocols can shield a company from these spiraling costs.

For example, thе RAND Inѕtіtutе fоr Civil Juѕtісе, a nоnрrоfіt institution that hеlрѕ improve роlісу and dесіѕіоn making thrоugh rеѕеаrсh аnd аnаlуѕіѕ, issued a report tіtlеd, “Whеrе thе Money Gоеѕ: Undеrѕtаndіng Lіtіgаnt Exреndіturеѕ for Prоduсіng Elесtrоnіс Dіѕсоvеrу.” Thіѕ ѕtudу fоund that оn аvеrаgе, еасh gіgаbуtе оf dаtа represents approximately $18,000 in eDiscovery соѕtѕ. On a реr-gіgаbуtе basis, costs rаngеd from $125 tо $6,700 for the соllесtіоn оf dаtа, frоm $600 tо $6,000 fоr рrосеѕѕіng electronic data, аnd from $1,800 tо $210,000 fоr the legal review.

Until the holy grail of true computerized document review arrives, there will be attorney review costs necessary. The good news is technology is evolving to reduce attorney review hours, which hasn’t changed much over the years. The RAND ѕurvеу fоund thаt “gіvеn thе trаdе-оff between rеаdіng speed аnd comprehension, еѕресіаllу іn light оf thе соmрlеxіtу of documents ѕubjесt to dіѕсоvеrу in lаrgе-ѕсаlе litigation, it іѕ unrеаlіѕtіс tо expect muсh rооm fоr improvement іn the rаtеѕ оf humаn review.” The lesson here is to concentrate company resources on information protocols and in house resources if a serial litigant.

Information governance is a whole other topic, focusing on how long to keep email before archiving and when archive data can be deleted defensibly. Keeping the in-house data lean, is the most effective defense as data continues to grow. This reduces infrastructuire and storage costs as well as limiting legal spend.

Unfortunately, most companies do not think about this until it is too late. Federal and State laws rеԛuіrе соmраnіеѕ to ѕuѕреnd record dеѕtruсtіоn роlісіеѕ іn the еvеnt of lіtіgаtіоn. Fаіlurе tо hоld аnd рrоduсе аll dіѕсоvеrаblе ESI could rеѕult in ѕаnсtіоnѕ rаngіng frоm аttоrnеуѕ’ fees and соѕtѕ to adverse іnfеrеnсе jurу іnѕtruсtіоnѕ, оr еvеn a default judgmеnt.

Remembering the importance of evolving your company’s doc retention plans along with the new tech is crucial in order to avoid potentail downstream expenses

eDiscovery Wounds When Racing The Clock

As the business of litigation becomes more data driven, it exposes even minor mistakes during the “eDiscovery” process. The most common self-inflicted wounds often occur before substantive discovery even starts; the legal hold. A legal hold is the process undertaken to preserve all forms of relevant information for anticipated litigation. Legal holds are not “one size fits all” and depend on the size of the organization enacting the hold, and scope of pending litigation. Legal hold troubles usually begin at the identification stage of the custodians involved and their related data sources.

Law firms and corporations are savvier to the eDiscovery process, but often create issues with timing and/or scope of legal holds. These are results of outdated information governance policies or lack of communication between departments such as IT and legal. For example, legal and IT may not be on the same page as to email archiving schedules, VPN permissions to save data locally on non-company workstations, and server shares.

As eDiscovery continues to grow, courts are raising their expectations for legal hold thresholds. The leash is getting shorter for missing custodians or incomplete data maps of a custodians relevant data. Often times a third party litigation service provider will circulate custodian questionnaires with which to build a data map. These are highly customizable questionnaires and provide documentation of the identification process.

Whether you are a serial litigant, or one time party to litigation, you can save yourself time and resources with a properly designed and executed legal hold.

eDiscovery is Further Challenged by Interconnectivity of the Internet of Things (IoT)

Technology is connecting our lives like never before due to countless Wi-Fi enabled  gadgets and thousands of mobile applications. The Internet of Things (IoT) is the ever increasing network of devices that have their own IP address; think about your phone, smart watch, GPS, tablets, Google Glass etc. Devices that were once standalone such as the thermostat, vehicle sensors, medical implants, alarm systems, and garage doors can now all be networked to the internet.

The IoT is the consumer focused merger of operational technology (OT) and information technology (IT). IoT uses unstructured machine-generated data to be analyzed for product improvement. It is a step towards the futuristic movies life we’ve been promised for years.  Where is my smart house and hover board?  The benefits of this newly connected world provide a customized ecosystem of interconnected sensory devices performing coordinated, pre-programmed tasks without requiring continuous human input. No more fiddling with the thermostat or trying to remember if you closed the garage!

However, this automated data storage process is basically a fingerprint of your daily activity. If you should become party to litigation, this data can potentially end up becoming part of legal discovery. Electronic discovery has already evolved with the inclusion of mobile devices and social media becoming part of litigation. There are unprecedented preservation and archiving issues for litigation support services and professionals that arise as a result of the IoT. This is because they are tasked with defensibly collecting and producing the data in line with more traditional eDiscovery data sources.   In many instances, locating the source data itself is nightmare. Assuming there is a way to extract the data stored only opens the Pandora’s Box of privacy issues. In fact, technology companies have invested billions on information governance to maintain access to the data created from IoT devices, causing discussion as to who actually controls data. Yes that’s right, someone else owns your Fitbit data.

The IoT brings with it a lot of benefits that will continue to automate our lives and make us more comfortable. The question may not be how the eDiscovery industry responds, but to what extent this type of personal data is stored or discoverable.

Machine Learning Algorithms Making the E-Discovery Process Much Less Painful

Machine learning is a type of artificial intelligence which evolved from the study of pattern recognition. Through the construction of algorithms, machines can make predictions on data versus following preprogrammed commands. What’s more, these algorithms can make independent decisions when new data is applied. As computer processing power improves, this technology can be applied to much larger data sets for reliable, repeatable results. This is the technology behind self-driving cars, fraud detection and data mining for online advertising.

The legal field has also found an application for machine learning algorithms to reduce the cost of document review.  Specifically, these algorithms have been applied to doc review solutions such as; Computer Assisted Review, Technology Assisted Review (TAR), and predictive coding. The growth of email and storing of documents electronically, gave rise to the e-discovery industry in the early 2000’s.  The exponential data growth is outpacing the traditional e-discovery methodology of filtering/searching to reduce data sets for review hosting. Pressure to reduce these costs, including pricey attorney review hours, had solution providers looking around for an answer. The potential application of TAR to legal document discovery quickly made it the industry “holy grail”. However, TAR solutions for e-discovery were mostly limited to industry conference circuits and talking heads. By 2012 the technology had matured enough begin to deliver on its promise to revolutionize doc review with a reliable alternative to traditional attorney review.

As technology advances, so does the expectations of courts when handling electronic documents. Judges now have little leniency for incomplete preservation or collection efforts, which has changed since the early 2000’s. Assuming a proper legal hold was in place, attorneys and third party providers are expected to provide all relevant email, user created e-docs, and associated metadata. If not, they face possible sanctions. Similarly, judges are just starting to push firms to use TAR to conserve legal spending resources, versus limiting discovery due to data volume. One example of a court ordered use of automated coding in a federal case occurred very recently. Judge Peck, from the United States Southern District Court of New York, in the case of Da Silva Moore v. Publicic Groupe et al., ordered litigants to use computer assisted review instead of only using keyword searches. He reasoned there was a likelihood of fewer mistakes in the document review process using this new technology since it could quickly recognize relevant information that simple keyword searching would miss. The future of machine learning is not only focused on reducing cost, but it also has the ability to push technology review past the limits of keyword filters.

This technology is not perfect or 100% accurate, but neither is attorney review. The biggest benefit on the horizon for law firms and their clients will be the application of TAR to an initial “first pass” review of docs. This removes the unnecessary hourly rates of young associates or doc review centers, who review data relevant to the case, or privileged communications. Removing this low hanging fruit conserves attorney billable hours for the more complex review issues of e-discovery. The attorneys benefit from avoiding doc intensive cases that take up a lot of their time, leaving bandwidth for other matters.

Discovery Dilemmas of Mobile Device Privacy

The convenience and functionality of mobile phones, tablets, and laptops enable our content hungry lives. Each year, we become more dependent on constant use of mobile devices to keep up with our professional and personal lives.  Mobile technology is so ingrained in our daily life, we use it to shop, email, search the web, navigate, take pictures, engage in social media, and of course call/text our friends and family.  Even with saturation we seldom consider how this information could affect electronic discovery and litigation.

The rush to put the world at our fingertips has ignored potential risks this increased connectivity might cause in the world of litigation discovery. Forensic collection and e-discovery continues to be complicated as a result of personal devices in the workplace. Mobile device technology might be on the cutting edge, but the legal industry is constantly evolving to catch up.

From a security and liability standpoint, mobile devices in the workplace can seem like a no-win scenario. To reduce costs, many companies choose a BYOD (Bring Your Own Device) policy. This route can expose these companies to the security risks of unsecured and unmonitored devices in close proximity to sensitive company data. Using personal devices for, or at work, exposes employees to the risk of their phones’ contents being reviewed during document review. More often than not, the freedom and comfort or your personal device is not offset by this level of privacy intrusion.

Other companies choose the COPE (Company Owned, Personally Enabled) policy option, and provide phones to their employees. The greater control over the devices reduces the security risk, but creates other problems when employees use the devices to post to social media, sync personal email accounts, and engage in offensive communication not in line with company views.


Information governance needs to be a priority when thinking about how to best handle personal devices in the workplace in order to reduce confusion in electronic discovery. Moreover, the concept of BYOD leaves the question of how to know which and how many devices might have accessed the corporate network.  All this to consider and we haven’t even begun to chat about Pokemon Go!