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Electronic Discovery

Pop Quiz: Is it Possible for a File to be Modified Before it is Created? – eDiscovery Best Practices

Sounds like a trick question, doesn’t it?  The answer is yes.  And, collecting files in a forensically unsound manner can be a drag…and drop.

You know those TV shows where they say “Don’t try this at home?”  Here is an exercise you can try at home.  Follow these steps:

Open Windows Explorer and go to one of your commonly used folders – for example, your Documents folder.  Select one of the documents by clicking on it.  Then, hold down the Ctrl key on your keyboard and drag that file to another folder (preferably another of your commonly used folders).  You’ve just created a copy of that file.  BTW, be sure you hold down the Ctrl key when dragging; otherwise, you will move the file to the new folder instead of copying it.

Go to the folder containing the new copy of the file in Windows Explorer and right-click on the file, then select Properties from the pop-up menu.  You will then see a Properties window similar to the one in the graphic at the top of this blog post.  In my example, I used a blog post that I wrote about a month ago in a Word document for the post Five Common Myths About Predictive Coding.

Notice anything unusual?  The Created date and the Accessed date reflect the date and time that you performed a “drag and drop” of the file to create a copy of it in a new location.  The Modified date still reflects the date the original file was last modified – in my example above, the modified date is the date and time when I last edited that document in Word.  The file appears to have been modified one month before it was created.*

If this were an eDiscovery collection scenario and you used “drag and drop” to collect a file like this, then…congratulations! – you’ve just spoliated metadata during the collection process.  This is one reason why “drag and drop” is not a recommended approach for collecting data for eDiscovery purposes.

There are better, more forensically sound, free methods for collecting data, even if your goal is simply to perform a targeted collection of active files from within a folder.  If you wish to also collect deleted files and data from drive “slack space”, there are free methods for performing that collection as well.  Next week, we will begin discussing some of those methods.

So, what do you think?  Have you used “drag and drop” as a mechanism for eDiscovery collection?  Please share any comments you might have or if you’d like to know more about a particular topic.

* – Microsoft Office files do keep their own internal metadata date fields, so the date created would still be preserved within that field.  Other file types do not, so the “drag and drop” method would eliminate the date created completely for the new copies of those files.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Yet Another Request for Facebook Data Denied – eDiscovery Case Law

We’ve seen several cases where social media data was requested – with some requests granted (including this one, this one, this one and this one) and other requests denied (including this one, this one, this one and this one).  Here is a recent case where the request was denied.

In Potts v. Dollar Tree Stores, Inc., No. 3:11-cv-01180, (D. MD Tenn. Mar. 20, 2013), Tennessee District Judge William Haynes ruled that the defendant “lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence” and, therefore, denied the defendant’s motion to compel regarding same.

In this harassment and discrimination case, the defendant, after serving requests for production on the plaintiff in April 2012, deposed the plaintiff on February 7 of this year, where she testified that she and her counsel possessed several other documents that they did not produce for the defendant.  The defendant filed a motion to compel several types of data including “Facebook and/or other social media data”.  Since the motion to compel, the plaintiff produced the following items:

  • Plaintiff’s day planner;
  • 8-10 pages of documentation concerning “write-ups” and “store visits” from Plaintiff’s employment at the Dollar Tree Store;
  • All saved or exchanged emails between Plaintiff, Trowery and/or any other representatives of Dollar Tree, or involving anything relevant to Plaintiff’s claim in Plaintiff’s possession, including the email containing a draft of Plaintiff’s statement to the EEOC in support of Trowery.

With regard to the request for Facebook data, the plaintiff objected, citing “other court’s holdings that the discovery of Facebook is allowed only where “the defendant makes a threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.”

Judge Haynes noted that while the Sixth Circuit has not yet ruled on the scope of discovery of private Facebook pages, other courts hold that:

“[M]aterial posted on a `private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.”

In this case, Judge Haynes ruled that “The Defendant lacks any evidentiary showing that Plaintiff’s public Facebook profile contains information that will reasonably lead to the discovery of admissible evidence…Thus, the Court concludes that Defendant has not made the requisite showing for full access to Plaintiff’s private Facebook or other social media pages.”

The defendant also requested reasonable attorneys’ fees incurred in preparing the motion to compel, but Judge Haynes ruled “Given that Plaintiff had justifiable reasons for her discovery objections, the Court concludes that Defendant is not entitled to attorneys’ fees for its motion to compel.”

So, what do you think?  Was the judge correct to deny the Facebook request?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Hammer Comes Down on Losing Plaintiff for Spoliation of Data – eDiscovery Case Law

Apparently, having your case dismissed isn’t the worst that can happen to you for egregious spoliation of data.  You can also be ordered to pay the winning party over $200,000 in fees and costs for the case.

In Taylor v. Mitre Corp., No. 1:11-cv-1247, 2013 (E.D. Va. Feb. 13, 2013), Virginia District Judge Liam O’Grady partially granted the prevailing defendant’s motion for fees and costs after the court dismissed the case due to the plaintiff’s spoliation of evidence. The court refused to grant the costs of image processing because the defendant did not adequately explain the services involved; it granted the costs of forensic analysis of the plaintiff’s laptop and made a partial award of attorneys’ fees given the difficulty in litigating this issue.

In November 2012 (as discussed on this blog here), Judge O’Grady dismissed the plaintiff’s employment-related claims against his former employer, Mitre. Taylor had used a sledgehammer to destroy a computer and data wiping programs to eliminate data from his laptop, prompting case-ending spoliation remedies. When the court ruled in favor of Mitre, it also ruled that Taylor should pay for Mitre’s fees and costs associated with its motion for sanctions.

Mitre claimed fees in the amount of $378,480 and costs in the amount of $49,245. The fees included the costs of forensic analysis of Taylor’s computer and image processing. Noting the “scant case law on the issue of image processing,” Judge O’Grady declined to award costs for this service and also referenced Mitre’s failure to explain “what these image processing services entailed (for example, what does it mean to ‘blow back TIFF images,’ why does it cost $686.00, and why did it need to be performed twice?), but Mitre [made] no claim that the resulting images were ever admitted into evidence.” Although rejecting more than $5,000 of Mitre’s claim, the court permitted Mitre to submit an additional motion to explain these fees.

Mitre also claimed costs of more than $32,000 to analyze Taylor’s laptop. Finding that “Taylor’s intentional destruction of evidence no doubt made forensic analysis of his computer more time consuming and expensive,” Judge O’Grady awarded the fee. However, he partially rejected the request for costs because “the Taxation Guidelines do not entitle Mitre to expert witness fees beyond the $40 per day, plus travel and incidentals, afforded to lay witnesses.” Accordingly the court awarded Mitre the costs of the forensic analysis, minus the costs of $3,200 charged for “‘testimony preparation’ and ‘expert testimony.’”

In addition, Mitre’s attorneys sought compensation for the work they did “as a result of Mr. Taylor’s spoliation. The bill is for 649.2 hours of attorney time and 245.4 hours of paralegal time, for a grand total of $378,480.00 in fees.” The court reduced the hours of the attorneys to 487 hours, finding that some of the time would have been spent regardless of the spoliation, with the rest acceptable because the “spoliation issue was, however, contentious and much ink was spilled.” The court rejected the request for paralegal time, finding the tasks they performed either administrative or attorney work. Ultimately, the court awarded fees of $163,882.18.  Including the awarded costs, the total came to $202,399.66 in fees and costs awarded – a hefty price for using a sledgehammer and data wiping software on two discoverable computers.

So, what do you think?  Were the awarded costs appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Is it Time to Ditch the Per Hour Model for Document Review? – eDiscovery Trends

Some of the recent stories involving alleged overbilling by law firms for legal work – much of it for document review – begs the question whether it’s time to ditch the per hour model for document review in place of a per document rate for review?

As discussed by D. Casey Flaherty in Law Technology News (DLA Piper Is Not Alone: Why Law Firms Overbill), DLA Piper has been sued by its client – to the tune of over $22 million – for overbilling.  When DLA Piper produced some 250,000 documents in response to its client’s eDiscovery requests, some embarrassing internal emails were included in that production.  For example:

  • “I hear we are already 200K over our estimate – that’s Team DLA Piper!”
  • “DLA seems to love to low ball the bills and with the number of bodies being thrown at this thing, it’s going to stay stupidly high and with the absurd litigation POA has been in for years, it does have lots of wrinkles.”
  •  “It’s a Thomson project, he goes full time on whatever debtor case he has running. Full time, 2 days a week.”
  • “[N]ow Vince has random people working full time on random research projects in standard ‘churn that bill, baby!’ mode. That bill shall show no limits.”
  • “Didn’t you use three associates to prepare for a first day hearing where you filed three documents?”

In his article, Flaherty provides two other examples of (at least) perceived overbilling:

  • In the Madoff case, the government “used 6,000 hours of attorney time to procure a $140 million settlement offer (more than $23,000 delivered per hour spent)”.  Your federal tax dollars hard at work!  However, the plaintiffs’ law firms “expended 118,000 additional attorney hours on the same matter to deliver the final version of that settlement at $219 million” and seek $40 million for delivering $39 million in incremental value (once you subtract their proposed $40 million in fees).  “It appears that most of the 110 lawyers are contract attorneys performing basic document review; the plaintiffs firms are just marking them up at many, many multiples of their actual cost.”
  • In the Citigroup derivatives class action settlement, plaintiffs firms “reached a $590 million settlement from which they now seek almost $100 million in fees for 87,000 hours of billable time (average, $1,150 per hour). The bulk of the hours were spent on low-level document review work” where contract attorneys were paid $40 to $60 per hour and “the plaintiffs firms are seeking $550 to $1,000 plus per hour for those services”.

While the DLA Piper example isn’t specifically about document review overbilling, it does reflect how cavalier some firms (or at least some attorneys at those firms) can be about the subject of overbilling.  For the other two examples above, document review overbilling appears to be at the core of those disputes.  There are admittedly different levels of document review, depending on whether the attorneys are performing a straightforward responsiveness review, a privilege review, or a more detailed subject matter/issue coding review.  Nonetheless, the number of documents in the collection is finite and the cost for review should be somewhat predictable, regardless of the level of review being conducted.

Why don’t more firms offer a per document rate for document review?  Or, perhaps a better question would be why don’t more organizations insist on a per document rate?  That seems like a better way to make document review costs more predictable and more consistent.  I’m not sure why, other than “that’s the way we’ve always done it”, that it hasn’t become more predominant.  Knowing the per document rate and the number of documents to be reviewed up front would seem to eliminate overbilling disputes for document review, at least.

So, what do you think?  Is it time to ditch the per hour model for document review?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Says Scanning Documents to TIFF and Loading into Database is Taxable – eDiscovery Case Law

Awarding reimbursement of eDiscovery costs continues to be a mixed bag.  Sometimes, reimbursement of costs is awarded, such as in this case and this case.  Other times, those requests have been denied (or reversed) by the courts, including this case, this case and this case.  This time, reimbursement of eDiscovery costs was approved.

In Amana Society, Inc. v. Excel Engineering, Inc., No. 10-CV-168-LRR, (N.D. Iowa Feb. 4, 2013), Iowa District Judge Linda R. Reade found that “scanning [to TIFF format] for Summation purposes qualifies as ‘making copies of materials’ and that these costs are recoverable”.

With regard to the plaintiff’s claims of negligent misrepresentation and professional negligence, the defendant obtained partial summary judgment from the court on one claim and prevailed at trial on the other claim. The defendant subsequently filed a bill of costs asking the court to tax $51,233.51 in fees against the plaintiff, including “fees and disbursements for printing.” Last October, the plaintiff filed an objection to the bill of costs; in its response, the defendant withdrew its requests for certain costs and reduced the total amount requested to $50,050.61.

The requested costs included $6,000 in copying costs, including almost $5,000 in costs for uploading documents to Summation, the popular litigation support software application. The plaintiff claimed the costs were not taxable because “(1) the costs were incurred for the convenience of counsel; and (2) the costs were discovery related and were not necessary for use at trial.” On the other hand, the defendant asserted “‘[t]he electronic scanning of documents is the modern-day equivalent of exemplification and copies of paper and therefore can be taxed pursuant to§ 1920(4).’”  Taxable costs under 28 U.S.C. § 1920, includes “[f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case.”

Judge Reade cited Race Tires America, Inc. v. Hoosier Racing Tire Corp. (where the winning defendants were originally awarded $367,000 as reimbursement for eDiscovery costs, but that amount was reduced to $30,370 on appeal), and found “the conversion of native files to TIFF . . . and the scanning of documents to create digital duplicates are generally recognized as the taxable ‘making copies of material.’”  Approving reimbursement for these expenses “in light of the facts and document-intensive nature of this case”, the judge rejected the plaintiff’s claim that $2,435.68 of the Summation costs awarded should be disallowed because “they were incurred for discovery purposes”, noting that “[t]here is no absolute bar to recovering costs for discovery-related copying and scanning.”

Judge Reade refused to reimburse some other document related costs, noting that “Bates match, OCR and document utilization are used to organize documents and make them searchable, activities that would traditionally be done by attorneys or support staff, and therefore, are not taxable.”

So, what do you think?  Should the costs have been awarded?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

I Tell Ya, Information Governance Gets No Respect – eDiscovery Trends

If Rodney Dangerfield were a records manager, he probably would say something like this: “I tell ya, my CEO is so dumb, I taught him how to defensibly delete – he forgot how to preserve!”  Ba-dum-bum!

As reported by Sean Doherty in Law Technology News (New Research Reveals Information Governance Gets No Respect), a new report from 451 Research has indicated that “although lawyers are bullish about the prospects of information governance to reduce litigation risks, executives, and staff of small and midsize businesses, are bearish and ‘may not be placing a high priority’ on the legal and regulatory needs for litigation or government investigation.”

In its March report, E-Discovery and E-Disclosure 2013: The Ongoing Journey to Proactive Information Governance, 451 Research conducted a survey of small, midsize, and large companies late last year regarding the handling of corporate data, with a specific focus on “enterprise IT and included relational and non-relational databases, data warehousing, text analytics, and business intelligence.”

Most notable in the survey, as reported by Doherty, “Of the 2,320 respondents, less than one-half believed that an information governance program was important to their organization” and “only 32 percent of senior management believed information governance important.”  Apparently, “more than one-half of the information technology staff who responded thought it important”.  According to the article, “larger organizations viewed information governance more importantly.”

Doherty also notes that “The 451 Research report covers a lot of ground in approximately 50 pages, the importance of IG by enterprise size, industry, job function, and jurisdiction; legal technology trends including the impact of social media and bring-your-own-device programs on e-discovery; a breakdown of e-discovery costs; and U.S. and state case law as well as a survey of legal and regulatory developments in the EU.”

For more information about the report, including other report findings and comments from David Horrigan (eDiscovery and information governance analyst and author of the report), click on the article link above.

Want specific survey results?  To purchase a copy of the report (for $3,750), click here.

In our recent thought leader interview series, several of our thought leaders mentioned information governance as a leading emerging trend within the industry.  This report appears to suggest that we still have a long way to go in educating organizations on the importance of a sound information governance program.

So, what do you think?  Do those survey numbers surprise you?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendants Sanctioned, Sort Of, for Failure to Preserve Text Messages – eDiscovery Case Law

In Christou v. Beatport, LLC, Civil Action No. 10-cv-02912-RBJ-KMT, (D. Colo. Jan. 23, 2013), Colorado District Judge R. Brooke Jackson ruled that the plaintiffs could introduce evidence at trial to show the defendants failure to preserve text messages after the key defendant’s iPhone was lost.  However, the judge also ruled that the defendants could present “evidence in explanation…and argue that no adverse inference should be drawn”.

The defendant had worked for the plaintiff in his Denver nightclubs booking disc jockeys and received both financial and promotional support from the plaintiff in launching an online marketplace (Beatport) for promoting and selling Electronic Dance Music.  Beatport became enormously successful and grew to become the largest online site that caters essentially exclusively to producers and consumers of Electronic Dance Music.  When the plaintiff left the defendant’s employment, he went on to found his own competing nightclub in Denver and the plaintiff claimed that the defendant has been threatening A-List DJ’s that their tracks will not be promoted on Beatport if they perform in the plaintiff’s clubs.

When the case was filed, plaintiffs served a litigation hold letter on the defendants, directing them to preserve several categories of documents, including text messages. However, defendants took no steps to preserve the text messages on the plaintiff’s iPhone, but did not produce any text messages in response to plaintiffs’ first discovery requests served in May 2011. The defendant indicated that he lost his iPhone in August 2011, and with it any text messages saved on it. Plaintiffs contended that this “spoliation” of evidence should be sanctioned by an adverse jury instruction.  The defendants noted that Roulier testified that he did not use text messages to book DJ’s and argued that “it is sheer speculation” that his text messages contained relevant evidence, also noting that they responded fully to the May 2011 discovery, indicating that there was nothing responsive in the text messages.

Noting that the defendant’s testimony that he did not use text messages to book DJ’s was “hardly proof that his text messages did not contain relevant evidence”, Judge Jackson also noted that “although defendants state that defendants ‘found no responsive text messages,’ they do not indicate that defense counsel reviewed Mr. Roulier’s text messages”.

Noting that “Spoliation sanctions are proper when ‘(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.’”, Judge Jackson stated that “Defendants had a duty to preserve Mr. Roulier’s text messages as potential evidence, but they did not do it. Those text messages, few as they might have been, should have been preserved and either provided to the plaintiffs or potentially made the subject of further proceedings before the Court.”

Nonetheless, Judge Jackson found “no basis to assume that the loss of the phone was other than accidental, or that the failure to preserve the text messages was other than negligent” – therefore, the judge found an adverse jury instruction to be “too harsh”.  Instead, Judge Jackson ordered that “plaintiffs will be permitted to introduce evidence at trial…of the litigation hold letter” and defendant’s “failure to preserve Mr. Roulier’s text messages”. The defendants were allowed to “present evidence in explanation, assuming of course that the evidence is otherwise admissible, and argue that no adverse inference should be drawn.”

So, what do you think?  Should the sanction have been harsher?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Four More Tips to Quash the Cost of eDiscovery – eDiscovery Best Practices

Thursday, we covered the first four tips from Craig Ball’s informative post on his blog (Ball in your Court) entitled Eight Tips to Quash the Cost of E-Discovery with tips on saving eDiscovery costs.  Today, we’ll discuss the last four tips.

5. Test your Methods and Know your ESI: Craig says that “Staggering sums are spent in e-discovery to collect and review data that would never have been collected if only someone had run a small scale test before deploying an enterprise search”.  Knowing your ESI will, as Craig notes, “narrow the scope of collection and review with consequent cost savings”.  In one of the posts on our very first day of the blog, I relayed an actual example from a client regarding a search that included a wildcard of “min*” to retrieve variations like “mine”, “mines” and “mining”.  Because there are 269 words in the English language that begin with “min”, that overly broad search retrieved over 300,000 files with hits in an enterprise-wide search.  Unfortunately, the client had already agreed to the search term before finding that out, which resulted in considerable negotiation (and embarrassment) to get the other side to agree to modify the term.  That’s why it’s always a good idea to test your searches before the meet and confer.  The better you know your ESI, the more you save.

6. Use Good Tools: Craig provides another great analogy in observing that “If you needed to dig a big hole, you wouldn’t use a teaspoon, nor would you hire a hundred people with teaspoons.  You’d use the right power tool and a skilled operator.”  Collection and review tools must fit your requirements and workflow, so, guess what?  You need to understand those requirements and your workflow to pick the right tool.  If you’re putting together a wooden table, you don’t have to learn how to operate a blowtorch if all you need is a hammer and some nails, or a screwdriver and some screws for the job.  The better that the tools fit your workflow, the more you save.

7. Communicate and Cooperate: Craig says that “Much of the waste in e-discovery grows out of apprehension and uncertainty.  Litigants often over-collect and over-review, preferring to spend more than necessary instead of giving the transparency needed to secure a crucial concession on scope or methodology”.  A big part of communication and cooperation, at least in Federal cases, is the Rule 26(f) conference (which is also known as the “meet and confer”, here are two posts on the subject).  The more straightforward you make discovery through communication and cooperation, the more you save.

8. Price is What the Seller Accepts: Craig notes that there is much “pliant pricing” for eDiscovery tools and services and relayed an example where a vendor initially quoted $43.5 million to complete a large expedited project, only to drop that quote all the way down to $3.5 million after some haggling.  Yes, it’s important to shop around.  It’s also important to be able to know the costs going in, through predictable pricing.  If you have 10 gigabytes or 1 terabyte of data, providers should be able to tell you exactly what it will cost to collect, process, load and host that data.  And, it’s always good if the provider will let you try their tools for free, on your actual data, so you know whether those tools are worth the price.  The more predictable price and value of the tools and services are, the more you save.

So, what do you think?  What are you doing to keep eDiscovery costs down?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Eight Tips to Quash the Cost of eDiscovery – eDiscovery Best Practices

By now, Craig Ball needs no introduction our readers as he has been a thought leader interview participant for the past three years.  Two years ago, we published his interview in a single post, his interview last year was split into a two part series and this year’s interview was split into a three part series.  Perhaps next year, I will be lucky enough to interview him for an hour and we can simply have a five-part “Ball Week” (like the Discovery Channel has “Shark Week”).  Hmmm…

Regardless, I’m a regular reader of his blog, Ball in your Court, as well, and, last week, he published a very informative post entitled Eight Tips to Quash the Cost of E-Discovery with tips on saving eDiscovery costs.  I thought we would cover those tips here, with some commentary:

  1. Eliminate Waste: Craig notes that “irrational fears [that] flow from lack of familiarity with systems, tools and techniques that achieve better outcomes at lower cost” results in waste.  Over-preservation and over-collection of ESI, conversion of ESI, failing to deduplicate and reviewing unnecessary files all drive the cost up.  Last September, we ran a post regarding quality control and making sure the numbers add up when you subtract filtered, NIST/system, exception, duplicate and culled (during searching) files from the collected total.  In that somewhat hypothetical example based on Enron data sets, after removing those files, only 17% of the collected files were actually reviewed (which, in many cases, would still be too high a percentage).  The less number of files that require attorney “eyes on”, the more you save.
  2. Reduce Redundancy and Fragmentation: While, according to the Compliance, Governance and Oversight Council (CGOC), information volume in most organizations doubles every 18-24 months, Craig points out that “human beings don’t create that much more unique information; they mostly make more copies of the same information and break it into smaller pieces.”  Insanity is doing the same thing over and over and expecting different results and insane review is reviewing the same documents over and over and (potentially) getting different results, which is not only inefficient, but could lead to inconsistencies and even inadvertent disclosures.  Most collections not only contain exact duplicates in the exact format (which can identified through hash-based deduplication), but also “near” duplicates that include the same content in different file formats (and at different sizes) or portions of the content in eMail threads.  The less duplicative content that requires review, the more you save.
  3. Don’t Convert ESI: In addition to noting the pitfalls of converting ESI to page-like image formats like TIFF, Craig also wrote a post about it, entitled Are They Trying to Screw Me? (discussed in this blog here).  ‘Nuff said.  The less ESI you convert, the more you save.
  4. Review Rationally: Craig discussed a couple of irrational approaches to review, including reviewing attachments without hits when the eMail has been determined to be non-responsive and the tendency to “treat information in any form from any source as requiring privilege review when even a dollop of thought would make clear that not all forms or sources of ESI are created equal when it comes to their potential to hold privileged content”.  For the latter, he advocates using technology to “isolate privileged content” as well as clawback agreements and Federal Rule of Evidence 502 for protection against inadvertent disclosure.  It’s also important to be able to adjust during the review process if certain groups of documents are identified as needing to be excluded or handled differently, such as the “All Rights Reserved” documents that I previously referenced in the “oil” AND “rights” search example.  The more intelligent the review process, the more you save.

There is too much to say about these eight tips to limit to one blog post, so on Monday (after the Good Friday holiday) we’ll cover tips 5 through 8.  The waiting is the hardest part.

So, what do you think?  What are you doing to keep eDiscovery costs down?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Adam Losey of IT-Lex.org – eDiscovery Trends, Part 2

During our recently concluded thought leader interview series, I had intended to line up at least one more interview – with Adam Losey, president and editor-in-chief of IT-Lex.org, a technology law not-for-profit educational and literary organization and an attorney at Foley & Lardner LLP.  Adam also served as an adjunct professor at Columbia University, where he taught electronic discovery as part of Columbia’s Information and Digital Resource Management Master’s Program.  Under the idea of “better late than never”, I was finally able to speak to Adam and get his thoughts on various eDiscovery topics.  Enjoy!  🙂

Like his dad, Ralph Losey, Adam has a lot to say.  Yesterday was part 1 of the interview.  Here is part 2.

What are you working on that you’d like our readers to know about?

At IT-Lex, we have a cash prize writing competition.  The deadline is May 1.  The winners not only receive $5000, $1000 and $500 cash prizes, but they also will be published in an academic journal that we will begin to publish from the top three articles and other submissions.  The winners also become members of IT-Lex, if they are willing to do the accompanying work.  We have Friends, Partners and Members.  Anybody can be a Friend of IT-Lex for free by registering, which gives you discounts on our conference, on partner products (if they wish to offer them).  You also get the bi-weekly email blast, you can download the journal, and you can watch our videos.  It’s all free.  Our Partners support us financially and they get advertising rights for that.

But, Members are really the core of the organization.  You can’t buy membership, there’s no cost associated with it – you just have to agree to work, have the necessary credentials, and help drive our not-for-profit mission.  There are no honorary memberships.  It includes people like Craig Ball and Jay Grenig at Marquette Law, Maura Grossman, Bill Hamilton, Ron Hedges, Browning Marean, etc.  It’s a bunch of folks that are pretty well established and everybody has agreed to take on a job.  It’s similar to a law review setup – we have managing articles, research and symposium departments.  And, they handle a typical law review process in screening articles that we get for the competition.  But, the big “carrot” that I’m hoping for the winners isn’t the money, it’s receiving an invitation to become a member.  So, they get to join a group of well known, well learned technology lawyers and collaborate academically with them and that should help those winners “kick start” their careers.  You can call us the technology law Kickstarter.  Winners also get to present at our first annual conference, called Innovate, on October 17 and 18 in Orlando.  We’re capping attendance at 200.  There will be quite a group of judges and eDiscovery experts there.  There will be some topics that you don’t typically see at most eDiscovery conferences and the winners of the writing competition will get to present their paper at a panel session.

Thanks, Adam, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.