Managing e-Discovery — Day 2 of the International Litigation Support Leaders Conference (Part 1)

A Review of Day 2 of the ILSLC (Part 1)

As we said in our coverage of Day 1 of the ILSLC (click here) the focus of almost all of the speakers during this conference was:  the fundamental problem facing the legal profession today is the search for truth and justice in a digital world.  A world where the complexity and volume of electronic information is overwhelming.

But the speakers and the seminars did not leave us in the lurch.  The conference presenters provided concrete suggestions, the central theme of each seminar being “We want you to leave with one, two, three or more actionable items you can implement tomorrow to help manage/solve your e-discovery issues and problems”.

And it was a difficult task because the audience was composed of e-discovery professionals from law firms, corporations and e-discovery vendors, each group with different needs.  But the speakers did just that:  provided suggestions/guidelines for managing the litigation/e-discovery process across the enterprise and/or law firm and/or service provider.  

It was made “easy” because all the e-discovery industry “pros” were there (click on a name to learn more about the person):   Craig Ball, the leading expert e-discovery consultant and computer forensic expert;  Albert Buckwalter, editor of Litigation Support Today magazine and organizer of the conference;  Julie Brown, Litigation Technology Manager at Vorys, Sater Seymour and Pease; Brett Burney, Principal of Burney Consultants; Kevin Carr, President of InterLegis;  David Kessler, partner with Drinker Biddle & Reath; Laura Kibbe, Senior Vice President of Epiq Systems; Ralph Losey, partner in Akerman Senterfitt; Mary Mack,  Corporate Technology Counsel for Fios Inc.; Browning Marean, partner in DLA Piper; Bruce Markowitz, Director of Litigation Support at McKenna Long & Aldridge; Mark Mayerson, partner at Spriggs & Hollingsworth; Mary Pat Poteet,  Director of Litigation Support at DLA Piper; George Rudoy, Director, Global Practice Technology & Information at Shearman & Sterling; Alison Silverstein, Managing Director with UHY Advisors FLVS; and George Socha, President of Socha Consulting and developer of the Electronic Discovery Reference Model.

And the event covered all the issues involving foreign language components of e-discovery and European and Asia e-discovery issues with experts like Lillian Clementi, Managing Principal of Lingua Legal; Todd Haley, Vice President of E-Discovery at ePIC; Conrad Jacoby, founder of efficientEDD; Scott Merrick, International Marketing Director of LDM Global; Nigel Murray, Managing Director of Trilantic; and John Tredennick, CEO of Catalyst.

And on the litigation support/e-discovery employment side we had David Cowen of The Cowen Group;  Ari Kaplan of Ari Kaplan Advisors; Patricia Lucas, Records/Litigation Support Manager at Patton Boggs; Shimmy Messing,  partner at Responsive Data; Margaret Morton, Practice Support Coordinator at Morrison & Foerster; Rebecca Prince, Litigation Technology Manager at McDermott Will & Emery; and Josh Sacks, Managing Director of Peak Litigation.

So, those are the introductions.    What did they say?  Well, much was covered, with some seminars overlapping.   We tried to cover as many of the events we could.  Rather than review seminar-by-seminar we’ll summarize what we learned over the two days, the material covered and present a series of bullet points. 

Herein, Part 1 which will cover major points on managing the e-discovery process:

POINTS MADE ON MANAGING E-DISCOVERY

*  Managing electronically stored information (ESI) is an enterprise-wide activity that requires uniform records management policies and the technology infrastructure to automate and enforce them.  It is imperative because the cost and risk of failure to do so is enormous.  The first step in meeting the Federal Rules of Civil Procedure (FRCP) and subsequent Federal Rules of Evidence (FRE) changes is for senior management, including general counsel, to become actively involved in setting ESI management priorities, launching ESI initiatives and funding those initiatives. ESI is spread throughout the enterprise and any of it could be relevant in a legal matter. The starting point for most organizations trying to gain control over e-discovery is existing litigation.  Selecting a system where data aggregation is efficient is important to a successful strategy.  The next step might be to identify those functional areas that are likely to contain the greatest volume of information relevant to certain types of litigation.  Human resources, for example, typically stores a lot of ESI that may be relevant in wrongful termination law suits.  Likewise, product manufacturing documents such as standard operating procedures are of great interest to during product liability litigation. Tape backup and email archives are also rich sources of ESI for litigation. These areas are the  “low hanging fruit” to address when launching an ESI initiative that is driven by e-discovery pressures.

* If you were able to attend and link all the seminars, and read all the handouts, you got a nice review of the FRCP and FRE:

   FRPC Rule 16(b)- scheduling order.  With the new emphasis on ESI, the court moves discussions of e-discovery issues to the forefront. Likely topics would be the breadth of disclosure, time to produce and claims of privilege after production, as noted in Federal Rule of Evidence (FRE) 502.

    FRCP Rule 26(a)- initial disclosure.   The court and the requesting party will want to know the nature of your ESI systems and what procedures you have in place for searching, locating and retrieving documents. For example, the requesting party might ask what your enterprise-wide document retention policies are, so it is best if those retention policies already in place.

     FRCP Rule 26(f)- quick peek risks.   If you cannot demonstrate that your ESI policies will yield satisfactory results during discovery, the court may demand a “quick peek”,  a sample of documents to help resolve initial e-discovery questions. Without a comprehensive ESI strategy in place, the -quick peek‖ raises a variety of issues such as: What are the implications regarding privileged designations? How large is the sample and how is it chosen? What standards are used to evaluate the results of a quick peek? 

    FRCP Rule 26(f) – preservation.   The court will have to strike a reasonable balance between the duty to preserve and the realities of dynamic computer systems – the contents of which change daily – that may contain multiple copies of many documents. 

     FRCP Rule 34(b) – forms of production.  ESI applications often use proprietary data formats, and without the proper software application, the information it contains can be useless.  This raises the question:  in what form should ESI be produced?

      FRCP Rule 26(b)(5) and FRE 502 – clawback.   The Amended Rules and subsequent FRE 502 provide some post-production protection for information erroneously produced though privileged, but there are some requirements to be met.  Failure to meet these may waive the privilege or protection. This puts the burden on corporate counsel to define standard clawback processes, and discuss them early-and to recognize quickly when inadvertently produced privilege material has been produced.

      FRCP Rule 37(f) – safe harbor. The rules allow safe harbor protection against loss of data from computer systems operations operated in good faith. But good faith operation of an information system requires an information management policy that is regularly followed. Without such a plan, the court may require computer systems to be shut down in order to prevent destruction.

*  One point raised time after time was that you must have a centralized, multi-matter review platform.  A centralized review platform enables corporations to apply the principles of process efficiency to every stage of discovery -making e-Discovery a defensible, repeatable business process. A repeatable business process is reasonable and defensible, which is what companies need in order to be compliant with FRCP guidelines.

* Litigation holds.   A “litigation hold” is a suspension of a company’s document retention/destruction policies for those documents that may be relevant to a lawsuit that has been actually filed, or even one that is “reasonably anticipated.”  A “litigation hold” ensures that relevant data is not destroyed and that key employees are notified of document preservation requirements. Even informal procedures for managing print or electronic documents, such as recycling e-mail backup tapes, must change when a company is sued, or even threatened with suit.  When does the duty to preserve arise and what does it cover?   The duty to preserve arises, in general, when a party is alerted that certain information is likely to be sought in discovery. This may occur, for example, upon receipt of a complaint, upon receipt of a demand letter; or upon receipt of a “preservation letter” expressly requesting that certain documents be preserved.   Generally, all information relevant to the claims or defenses of any party in a lawsuit or which is relevant to the subject matter involved is covered, including print or electronic copies of documents, copies in a document storage system, on computer hard drives, or on e-mail backup tapes. It also covers documents in existence at the time the duty to preserve arose, and those created after the duty to preserve arises.

There was much discussion on two recent cases that provided clarity … and also provided “foggity”.  These are the Phillip M. Adams case and the Mancia case.  We can’t summarize all the points made — this is a difficult area — but we learned there are three vendors who provide software to assist in preservation of the litigation hold: Autonomy, Exterro and Atlas Suite from PSS Systems.

And as far as learning/knowing about litigation holds all of the speakers highly recommended The Sedona Conference paper on the subject which is discussed in the DLA Piper White Paper on litigation holds which you can access here.

* Optimizing the document review.   We heard throughout the conference that the actual document review process is 65-70% of the total cost of the ESI collection/processing management function.  We heard about all types of software (we will cover the vendor software demonstrations in Part 3) and heard about the linear review, clustering and visual analytics, as well as a great way to “test” review software:  try to use it without training.  Is it intuitive?  Do you need training?

The document review process was broken down into several steps/functions:

• Data acquisition planning
• Forensics acquisition of the data
• ESI processing
• Document review strategizing
• Matching repository review technology to cases

There was also discussion about the various reporting capabilities/metrix analysis available to track the progress of a review.  It was suggested that such a tool be separate from the actual review software, to be an “objective” analysis outside of the actual review tool.  One of the best on the market is said to be Peak Review Metrics from Peak Discovery.

Coming next:

Part 2:  things to consider in foreign language reviews, and e-discovery across the seas — and jobs

Part 3:  a review of the vendors