How Strong is that (Email) Thread You’re Using?

Email threading, a means of gathering related emails together for easier and more consistent review than doing so piecemeal, is a fairly commonplace feature of many document review platforms. At ALM’s Legaltech NY 2016, I asked a vendor about a concern I have always had about the practice and was pleased/distressed to have him confirm my suspicions. While it is no big deal to collect all of the emails in an actual chain – those responded to with the reply button, or forwarded to others –  there IS a problem in finding related emails that are not part of the chain. Imagine A and B engage in a lengthy exchange about something adverse to their employer’s interest – a defective product, a dangerous condition, a material misrepresentation, etc; many tools will have no trouble gathering those up and putting a bow on them for the reviewer IF, but only if, the reply button was used. If new emails are generated, they might not be picked up by threading tools. If A and B are arguing and their supervisor, C, having been forwarded the chain, writes an entirely new email telling them who he or she agrees with, a threading tool most likely will not pick that up, even though it might be the most relevant email on the topic, because it is not part of the chain. Similarly, if C writes a second email to D summarizing the situation, but without forwarding the chain, that email will also escape detection. Smart bad guys know this.

While it is true that concept clusters might pick up C’s emails, or a timeline generator might reveal them during a key time, those tools must be used in addition to the threader, or your smoking gun/needle in the haystack might not be recognized for what it is.

Artificial intelligence and algorithms are wonderful, but there still is no substitute for the inquisitive human. A shout-out goes to  Cavo eD, makers of an interesting, full-feature eDiscovery product, for their candor here.

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Replacing the “Old Ways” in Document Review

Slashing E-Discovery Costs:

Innovative Approaches and New Alternative Fee Arrangements

NYC; legal tech IMG_1839 slashingPanelists: Anthony Lowe, Christine Hasiotis, Farrah Pepper, Brian Chebli, Greg Witczak

ALM Legaltech NY 2016 – 2/3/16

This panel was made up of in-house eDiscovery experts from several major institutions and they were quite frank about their concern over the costs of eDiscovery (please note, however, that the views expressed were their own, and not of their respective institutions). Some random remarks included:

Controlling the volume of electronically stored information (ESI) a corporation maintains is increasingly important and requires good information governance procedures. The amended FRCP makes this easier because it introduces an “intent to deprive” your opponent of information you have not kept. Defensible deletions will reduce document review costs out the gate simply because you will not have as many documents to review under any scenario. Sixty to 90% of the documents in the review pipeline are only minimally relevant at best.

With as much as 89% of costs attributable to document review, some corporations have begun keeping databases on outside counsel regarding their performance, tracking things such as documents reviewed, speed of review, per-document cost, motions practice charges, etc. While the new requirement of proportionality is not thought to be of that much help to the corporations with respect to the eDiscovery itself, it appears corporations are beginning to use it in the selection of outside counsel.

“Quite frankly, you don’t want your first pass in the hands of outside counsel” – ouch!

Second-level review is seen as a hot button that can be “code” for throwing in some associates who don’t know what they are looking for or how to find it – ouch, again.

Look into creating data sets if your business is involved in repeated litigation so that you don’t have to have the same data reviewed over and over again. These sets can be augmented as needed, but certain data will be involved in many instances.

Alternate fee agreements, based upon total project cost, fixed fees and performance guarantees are replacing “the ‘old way’” (“per-gigabyte pricing, hourly rates, and unrealistic estimates”).

The take-away here was that the major corporations are expecting more of their outside counsel in terms of efficiency and are not afraid to challenge them, or simply hire more responsive firms.

 

 

 

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Proportionality & Spoliation

ALM Legaltech NY 2016 Keynote Panel Discussion:

How Is Technology Being Used in Today’s Court Rooms and Cases?

NYC; legal tech IMG_1813 (1st keynote)2/2/2016; Grand Ballroom West, Hilton Midtown, Manhattan, NY

Scheduled panelists: Hon. James C. Francis (SDNY), Hon. Lorenzo F. Garcia (NM), Hon. Elizabeth LaPorte (ND, CA), Hon. Andrew J. Peck (SDNY), Hon. Pamela Meade Sargent (WD, VA)

ALM’s Legaltech NY 2016 kicked off with a standing-room-only panel discussion by several magistrate judges of the federal District Courts; the ones who are confronted with the issues of legal technology on a daily basis in the real world. One of the interesting terms that surfaced during the discussion was “millennial jurors,” with the panelists observing that while they still do see the occasional lawyer come into court with one copy of a paper exhibit he or she intends to pass around the jury box, this is NOT what today’s jurors are expecting. What they see in the movies and TV guides their expectations of what they will see in court; they often have individual screens in front of them and they want to see something on that screen.

The clear message of the discussion was that a basic understanding of technology was expected of counsel if only because the judges themselves have taken the time and effort to learn it. One pointed out that the typewriter was patented in 1829, but law firms kept using the quill and pen until the 1860s because the innovator has always run the greater risk of failure but that the American Bar Association is suggesting that lawyers actually have an obligation to keep abreast of technology and that in-house counsel is taking the leading role because they are the ones paying the bills. Judge Peck noted quite frankly that the need to have “eyes on” every document these days is “an urban myth” and there was an unspoken acknowledgment from the stage that billing considerations enter into maintaining it because linear review has proven to be lucrative, although the panelists were not unaware of the cost of the new gee-whiz technologies in the exhibit halls just outside the room. Here the advice was to put the traditional boilerplate objections to discovery requests into concrete terms the court can easily visualize – don’t just say “it’s going to cost a lot,” or “I want everything,” and do not be afraid to mention specific dollar amounts.

While the recent amendments to the federal rules do make proportionality a factor in discovery requests because of the high percentage of litigation cost that have been going to review and production, the panelists seemed to think that the spoliation rules would be of greater benefit to corporate entities dealing with the explosion in electronically stored information (ESI) because of they introduce an “intent to deprive” consideration. Legaltech NY 2016 would prove to devote a lot of time to the problem of information governance in the days ahead. The concept is fairly simple; controlling how much information you have controls how much information must be reviewed, which controls the cost of the review.

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LegalTech NY 2016!

image

If you’re not in Manhattan for ALM’s LegalTech NY 2016 now, you should plan to be for January 31 through February 2, 2017, or, sooner, in San Francisco for the West Coast version on June 13 and 14, 2016. The quality of the speakers is excellent, the information provided invaluable, and the exhibits fascinating.

Look here for Notes From the Field on this event.

Disclaimer: ALM provided a pass to me.

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eDiscovery Cost Containment 101

While I am very much looking forward to the talk on cost containment scheduled for the LegalTech Trade Show in Manhattan this coming week (“Controlling the Total Cost of Discovery: Tools, Rules and Accruals,” sponsored by Discover Ready) and expect to learn about some cutting-edge technologies, there is one very simple method of controlling costs that is as simple as it gets: know what you are being billed for.

As a case in point, I will cite my experience last year as a member of “the team” on a document review project that dealt with sensitive information. The first-pass coders were assigned to review documents to look for this type of information and to mark the document for redaction if it was found. But we were not permitted to specifically identify what we considered sensitive, much less copy and paste it into the attorney’s notes section of the review application (Relativity®). This, of course, would have generated a print-out of all information marked for redaction that a more senior attorney could review. Instead, the more senior attorneys had to go through all the documents marked for redaction and find what the first pass team had identified (“it should be obvious to them,” was what I believe was said by way of explanation).

Then, in a change of heart, the first-pass team was told to go ahead and make the redactions after all. So we all dug back into the documents to carry out the redactions we could have made on the first pass, but again without generating any listing for review or a redaction log. I can’t believe the client would have been very happy with this, but, hey – maybe; it kept a fair number of attorneys employed.

Forty attorneys were paid $26.00 per hour for a solid week; or roughly $40,000. Chicken feed in the great scheme of things, but a smaller team of attorneys using targeted search probably could have done it more efficiently, more consistently, and more accurately. I don’t think this was willful double-dipping, but I do believe it was because someone did not know too much about efficiency or the capabilities of the platform.

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Legaltech at NYC 2016

I hope you are able to make it to the massive legal technology show in New York City next week, February 2nd through the 4th; it will have dozens (hundreds?) of vendors and excellent speakers on some very hot topics, including cost-control in ediscovery.

You can still register at: legaltechshow.com

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“… proportional to the needs of the case ….”

Amended to December 1, 2015 – not quite two months ago – the Federal Rules of Civil Procedure now impose a new consideration on discovery requests; that of proportionality. Specifically Rule 26(b)(1) provides in part: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

The subtext of the rule is obviously the massive document review projects that have been spawned due to the proliferation of electronically stored information (ESI). Parties have been crying foul over the cost of having to hire squads of attorneys to review each and every “relevant” document before turning it over to the other side.

So-called predictive coding was supposed to address this problem, with computer algorithms based upon your opponent’s review of a sample doing the heavy lifting, but this is fraught with difficulties covered elsewhere here.

While the rule change is laudable, it is also somewhat unnecessary. ESI makes it comparatively easy to find relevant documents by using key words, and comparatively easy to protect privileged documents, also by using key words. The expense comes from a party’s insistence on reviewing every single page before producing it, on the supposition this was necessary for good representation.

However, strictly speaking, it is not. If I’m suing you on account of your widget and your document mentions the word widget and does not involve a privilege, I’m entitled to it. It’s not my fault your company has generated 100 million pages of ESI mentioning the word widget and I want all of those pages, period, even though a mere fraction of them are likely to end up as courtroom exhibits. I’m not going to look at every single page, because plaintiffs’ attorneys don’t have resources like that, or are not going to spend them on a page-by-page review. That’s what targeted searching is all about; modern platforms allow sophisticated searches through the haystacks to find the needles if proper methods are used.

I can see Acme Corporation coming into court under this rule after being sued by a plaintiff injured by one of its products, complaining that it’s going to take 40 lawyers six weeks to review all of the documents the plaintiff has asked for and that this would not be proportional to a case where $250,000 might be at stake. That would be a false argument; if they mention the product in question and aren’t privileged, Acme has to produce them, regardless of what they say, whether Acme has looked at them or not. Plaintiff is not going to spend a million dollars reviewing each and every one of them and my suggestion is that defense counsel doesn’t have to either, since targeted search will identify smoking guns and defenses at least as well, if not better, than linear review.

 

For questions about targeted search methodologies, please contact:

Richard Neidinger, J.D. | richardneidinger@yahoo.com

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