E-Discovery Bytes : E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

Two Model Rules from the E-discovery-Kings under the sky:
Five or eight custodians for Tech-Lords in their courts of stone;
The vast production of metadata, perhaps doomed to die;
Five or ten search terms for the Dark Lord's e-mail on his dark throne
In the Land of Litigants where the patent Trolls lie.
But is there One Ring to rule them all? One Ring to find them?
One Ring to search them all and then produce and bind them,
In the Land of Litigants where patent cases lie?

"It's a dangerous business, Frodo, going out of your door . . .You step into the Road, and if you don't keep your feet, there is no knowing where you might be swept off to.”
              -- J.R.R. Tolkien, Lord of the Rings: The Fellowship of the Ring

Somewhere along the road of litigation and technology, e-discovery's All-Seeing Eye grew bigger than its stomach. Overall, only .0074% of documents requested and produced in litigation (less than 1 in 10,000) wind up on trial exhibit lists.  Still less are actually used. For e-mail, hotly demanded due to the hopes of finding a smoking gun in informal and hastily-sent communications, the proportion is even lower. This trend is especially concerning in intellectual property litigation -- patent cases in particular.

To combat this trend, two sets of courts -- let's call them the Fellowship of the E-Discovery Kings -- recently set on journeys to narrow the range of the All-Seeing Eye in patent litigation, issuing similar and helpful Model Orders for e-discovery to curtail mass and unnecessary production.  But whether there is really One Ring to Rule Them All when it comes to search methodologies -- one workable solution -- may not be as clear as the E-Discovery Kings propose.

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Most of you know the story: either the plaintiff wants everything under the sun from the defendant as part of discovery but has no documents of its own to produce, or two big companies hit each other with unreasonable discovery requests to make the other side settle an otherwise meritorious case.

To address both opportunities for abuse, two new cases put out the message, “If you make unreasonable demands, you are going to have to pay for it.”

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There’s good news in the world of electronic discovery. This February in New York, Magistrate Judge Andrew Peck and counsel for the parties in Da Silva Moore v. Publicis Groupe gave us a magnificent e-discovery lesson and pushed open the door for the utilization of advanced search technologies -- namely predictive coding, an increasingly used methodology of computer-assisted review.

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As our economy and companies become more digital and global, digital information outside the U.S becomes increasingly relevant to resolving civil disputes within our nation.

Digital information will be governed by a set of laws and values many U.S. companies and their lawyers are not familiar with, because the U.S. trades more heavily with nations outside the EU. While most industrialized (e.g., Canada, the United Kingdom and Australia) and newly industrializing (e.g., Singapore and South Africa) nations have developed laws compelling the transfer of relevant electronically stored information (ESI) in civil disputes, none have laws as liberal and far reaching as U.S. civil discovery procedures.

Many nations also impose restrictions on when ESI can be gathered, processed, used and transmitted beyond borders. Indeed, "In many non-U.S. jurisdictions, including the European Union member states, some Asian nations and a few Latin American nations, data privacy is viewed as a fundamental right and ‘personal data’ is afforded greater protections than we are accustomed in the U.S." (Gibson Dunn, "E-Discovery Basics: Cross-Border E-Discovery,” Vol. 1, No. 11). In addition, certain countries have privacy laws designed to protect information about their state-run companies (e.g., China) or even the identity of their banking clients (e.g., Switzerland).

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It's every litigator's fear - inadvertent disclosure of privileged documents leading to a court finding of waiver of privilege.  A recent Illinois case shows just how easy it is to waive the privilege if you do not stay on top of the technological aspects of your production, even after conducting a complete review and indentifying privileged documents.

In Thorncreek Apartments III, LLC v. Village of Park Forest, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011), the court was faced with a defense counsel who "thought" that merely marking documents as privileged in an electronic database would keep them safe from production. Unfortunately for counsel, every document that had been identified as privileged was produced to opposing counsel. To make matters worse, defense counsel did not learn of the accidental disclosure for nearly nine months of discovery. He then waited an additional four months to produce a privilege log to opposing counsel. Not surprisingly, the court held that while some of documents were privileged when originally created, defense counsel had waived privilege by his actions, or more precisely his inaction.

Here are some key points from the case all litigators should take to heart when engaging in document production:
 

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"I am the Judge. I speak for the laws!
I speak for the laws, for the laws have no tongues.
And I'm asking you, sir, at the top of my lungs,"
(He was very upset as he shouted and puffed)
"Stop friending me, lawyers!  Enough is enough!" 

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising.  Part Two of this article then discussed misrepresentations made to third parties on social media and violations of one's duty of candor to the court. 

Since all good things come in threes, we now launch into our final Part Three:  corresponding with a judge in a way that gives rise to the appearance of impropriety, and making inflammatory statements about lawyers or judges.

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The cost of e-discovery is forcing good companies to settle bad cases—but not for long. If your litigation budget had ears, “predictive coding” would be music to them.

How it works

Predictive coding is a “technology-assisted classifying process” in which “a human reviewer codes documents the computer identifies (as responsive)—a tiny fraction of the entire collection. Then, using the results of the human review, the computer codes the remaining documents in the collection for responsiveness.” There are four phases to the predictive-coding process:

• Phase 1: A senior lawyer chooses the responsive electronic documents based on his or her review of a sample of the electronic documents

• Phase 2: Phase 1 is repeated with senior lawyers until the computer is sufficiently “trained” to apply their conclusions across a wide set of documents (or the whole document set)

• Phase 3: The predictive coding software is deployed against the entire document set and will distinguish between relevant and non-relevant documents, or prioritize the documents on a scale of one to 100 (depending on the software you select)

• Phase 4: The documents that are machine-coded as responsive are subjected to a final human quality review and produced to the opponent

How it saves your company money

Using predictive coding software replaces the once overcrowded rooms of contract attorneys who pored over millions of records and billed by the hour. Rather than hiring 15 $80-per-hour reviewers working 40 hours per week for three weeks for a total review cost of $144,000, your company could conduct the same review with three senior lawyers at $600 per hour for eight hours at a total labor cost of $9,600, saving $134,400 without the cost of using the software. Furthermore, the empirical data on predictive coding confirms “the levels of performance achieved by ... technology-assisted processes exceed those that would have been achieved by ... the law students and lawyers employed by professional document-review companies — had they conducted a manual review of the entire document collection.”

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Florida is hurdling toward the adoption of new civil procedure rules that address the discovery of electronically stored information (ESI) in the Florida state courts.

The Florida Civil Rules Electronic Discovery Sub-Committee, initially under the leadership of Lawrence Kolin and now Kevin Johnson, recommended rule changes addressing e-discovery after years of study. The full Rules Committee voted at The Bar’s Annual Meeting in June to accept the Sub-Committee's proposed rules with minor editorial changes sent the e-discovery rules to the Supreme Court on an expedited “out-of-cycle” track, which would avoid an additional two-year wait for the 2013 regular cycle rules changes. On July 29, 2011, The Bar’s Board of Governor’s accepted the recommendations, including expedited review and voted to have The Bar’s legal counsel submit the proposed rules to the Supreme Court.  After publication in The Bar News and the opportunity for comment, the Supreme Court will be able to consider the rules as early as this fall.

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There was a time when state court civil disputes did not involve the risk of astronomical e-discovery costs. That time has passed. Just as e-discovery in federal courts reaches some semblance of uniformity, the fifty (very independent) states have begun to realize that discovery in the Digital Age will necessarily involve "staggering" amounts of electronically stored information (ESI).

Since 2003, 30 states have adopted rules or enacted statutes that specifically address ESI management, preservation and production in civil disputes. New York and seven other states have developed their own methods for managing e-discovery, while California (and 21 states like it) generally follows the Federal Rules of Civil Procedure. The remaining 20 states (e.g., Illinois) have yet to adopt any e-discovery rules, but most recognize "the increasing reliance on computer technology," and some explicitly (by judicial interpretation of existing discovery rules) obligate civil litigants to produce ESI as part of their state's existing discovery obligations.

Although all 50 states have somewhat different approaches to managing e-discovery, there are a few trends in how states treat e-discovery that impact costs.

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 Imagine the following eloquent cross-examination:

ATTORNEY SAM: Good morning, Witness. I am Sam. Do you like green eggs and ham?
WITNESS: I do not like them, Sam-I-am.
ATTORNEY SAM: Would you eat them in a house?
WITNESS: I would not eat them in a house.
ATTORNEY SAM: Would you eat them with a mouse?
WITNESS: I would not eat them with a mouse.
ATTORNEY SAM: Would you eat them here or there?
WITNESS: I would not eat them here or there. I would not eat them anywh --

Why the sudden break in testimony? Because last month Attorney Sam managed to get Witness to "friend" him on Facebook, and he is now holding up the fruits of that endeavor as Exhibit A -- a photograph posted on Witness's page in which he is . . . eating green eggs and ham.

Part One of this article discussed how an attorney's use of social media can lead to breaches of confidentiality, conflicts of interest, unintended relationships, and improper advertising. But as comprehensive as this list seems, additional ethical issues can rise out of an attorney's immersion in social media.  These problematic issues include misrepresentations made to third parties on social media and violations of one's duty of candor to the court.  

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Cloud computing platforms (a set of pooled computing resources that are powered by software and delivered over the Web) have been generating quite a bit of press in the last year. Indeed, just recently computing giant Microsoft launched its Microsoft 365 cloud computing platform, designed to rival Google’s "mega-cloud" platform, which launched in May 2010. Since the release of the first commercial cloud computing platform by Amazon in 2006, cost-conscious companies have been racing to evaluate the pros and cons of moving their computing operations to “the cloud.” According to the Booz, Allen, Hamilton technology consulting firm, “Cloud computing may yield:

Life cycle costs that are 65 percent lower than current architectures

• Benefit-cost ratios ranging from 5.7 to nearly 25

• Payback on investments in three to four years."

Notably absent from that cost-benefit analysis, however, is the effect cloud computing may have on the costs and risks associated with conducting electronic discovery. Those engaged in such activities may well ask the question, “Will the savings companies expect from moving their data to the cloud be absorbed by the additional costs/risks created by conducting e-discovery in the cloud?”

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Should lawyers be able to move about as freely within social media as the rest of the population, despite the risk to themselves and their clients? Perhaps Dr. Seuss said it best in Horton Hears a Who, although the full verse ought to have gone something like this:

"A person’s a person, no matter how small."
And your lawyer’s a person as well, after all.
So Twitter and LinkedIn and Facebook's friend wall --
They aren’t just yours, but are his ports of call.

When engaging in social media, the last thing an attorney and his client have in mind is the almighty “E” word: ETHICS. But an attorney’s use of social media poses a multitude of ethical risks that impact that attorney, his law firm, and his client.  Of course, it is hardly feasible (and, the author of this blog humbly adds, hardly fair) to exclude attorneys from what has become the communicative oxygen of the twenty-first century. Nonetheless, attorneys must take more care than most individuals as to what they post online. Otherwise, they risk opening a Pandora’s box of ethical violations that impact themselves, their firms and their clients -- such as breaches of confidentiality, conflicts of interest, the creation of unintended relationships, and improper advertising. And those are only the obvious possibilities.

What are some of the ethical rules under the ABA Model Rule of Professional Conduct ("ABA MPC") that one’s attorney can commit on social media, that endanger a client’s case or information, among other things?

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What makes an e-discovery search legitimate and defensible?

While virtually every case involves a search for relevant electronically stored information ("ESI"), there is no industry-based definition or measure of a “legally defensible” search. Reminiscent of Supreme Court Justice Potter Stewart's famous quip, some think we know a good search “when we see it,” but the simple and embarrassing truth is that we do not have an operative definition of search acceptability. The lack of any such industry standard for searching and finding ESI in a case wreaks havoc in the field and leaves it to courts to determine, on a case by case basis, whether a particular search passes muster. Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.d. 251 (D. Md. 2008).

But while judicial officers are many things, they are not search experts. United States v. O’Keefe, 537 F. Supp. 2d. 14 (D.D.C. 2008); Equity Analytics, LLC v. Lundin, 248 F.R.D. 331(D.D.C. 2008). In fact, many judges were elevated to judgeship years or even decades before ESI became prevalent, and thus lack any practical experience in searching for, processing, or producing ESI. Putting the question to the courts will therefore result (and has resulted) in disparate answers that vary from jurisdiction to jurisdiction depending both on how the search issues are presented, and on the quality and quantity of resources each side brings to the court. Do we want an approach that may lead to different search standards, say, in a federal court in Chicago versus a state court in Los Angeles?

The risk is simply too great and the issues too pressing, to allow a generation or two of common law decisions across multiple jurisdictions to be cobbled together to shape an overarching definition of a "good" search that counsel and clients can rely upon -- one that will stand up to judicial scrutiny.  That's where "ICAIL," the International Conference of Artificial Intelligence and Law, and its Discovery of Electronically Stored Information (DESI) Workshop, comes in.

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As interest in e-Discovery continues to grow, there's no question what's the driving force that grabs the headlines. Sanctions, of course.   It is the water cooler of the ESI world.  Sanctions capture clients' interest, and motivates unwitting attorneys to pay attention to the growing field that is e-discovery. And while it may be known that significant sanctions have recently been imposed for e-discovery violations, what is missing is perspective. How often are sanctions requested? When will they be imposed? How severe will the punishment be? What did the client and/or attorney do wrong?

A recent study by three King & Spalding attorneys that was published in the Duke Law Journal, attempts to provide some of this perspective. A full copy of the article can be found here. They identified 401 e-discovery cases where sanctions were sought dating back to the early 1980's and through January 1, 2010. Of those cases, sanctions were awarded in 230 cases.

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