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

Sass and Microsoft Word.  SaaS, which Word uses, is really a form of cloud computing, or internet-based computing. Applications such as a word processor is accessed via the Internet, and the resulting data created by the user (documents) is stored on servers managed by particular service providers. This form of service delivery has a siginificant advantage over "localized" computing from a cost and management standpoint.  For example:

• By paying a SaaS provider to run applications and store documents, businesses no longer have the need to purchase/upgrade their word processing software.
• It reduces and/or allows the redeployment of hardware (servers) used to store documents.
• Applications can be accessed anywhere, anytime as long as the user has Internet access.
• For remote users, an iPhone, iPad, Blackberry, or other Android-powered phones can be used to access documents, and there is no need to login to an internal network using software such as Citrix or any flavors of VDI.
• SaaS providers typically guarantee 24/7 access due to elaborate network redunduncies.
• Fewer or no technical staff is needed to manage software and handle storage issues.  This frees them up for other tasks.

Google Docs.  Depending on your perspective, Google Docs could be a blessing or a curse. Documents created by Google Docs are devoid of metadata. This means that no document scrubbing (e.g., iScrub) is needed before they're being sent to a recipient. There is no chance of inadvertently disclosing confidential information.  Additionally, numerous people can be in the document at one time, make changes, and monitor the changes others are making.  This can work wonders for collaboration.  Unfortunately, there are some down sides for Google Docs:

• Google Docs tracks all document edits in the form of a "revision history" trail that cannot be eliminated by the user. This same trail could potentially be subpoenaed by the courts for e-discovery purposes.  Google Docs, and Gmail, stores everything. 
• Google Docs exists as an independent product from Document Management Systems (DMS). As a result, it cannot be integrated with an in-house DMS or part of a company's overall enterprise content management (ECM) strategy.  In other words, you can't develop a record retention policy that can be followed with these documents. 
• The document versioning method is quite different. For example, a particular MS Word document in a DMS such as iManage will present itself as "document_number.1" and a new version is saved as "document_number.2". The same document created in Google Docs will present itself as two separate entries in the "revision history". Hence, a Google Docs document would be saved as "document_name" and a new version would be saved as a separate document but renamed as "document_name_revised".  As a result, there is no easy way to move all the separate entries into a DMS as a single document with different versions.

Google Docs may be more appealing to smaller businesses that do not want to worry about internal networks and in-house DMS issues.  But large or small, whether Google Docs is a feasible solution depends on your business infrastructure, records compliance requirements, and the resources available to manage it.  Before taking the plunge, consult with Google, your legal department, and perhaps your existing e-discovery vendor on how Google handles litigation holds and document search and retrieval in e-discovery situations.

Regardless of its short-comings, Google Docs could be a solution for certain businesses that don't require a DMS and the main focus is document collaboration without overburdening the IT staff.

During the open administrative conference that followed upon the public hearing, the Wisconsin Supreme Court quickly and unanimously resolved to adopt a set of noncontroversial amendments in the near future while also regarding these amendments as the beginning of a work in progress. The chief justice said that she hopes to see a revised petition from the Judicial Council in 2-3 months and then to adopt a set of amendments in May.  This timetable may not hold, however, pending input from the Judicial Council.  "They have day jobs," the chief justice observed of the Council's members.   

The court stated that the Judicial Council's new petition must eliminate some non-substantive differences between language in the Council's proposed amendments and language in the Federal Rules of Civil Procedure.  The court also recommended that the Council expand its commentary to the proposed amendments, including by incorporating commentary to the federal rules that serve as a basis for the Council's proposal.  Finally, the court asked the Judicial Council to consider -- although only to consider -- proposing some of the additional provisions recommended by those who spoke in opposition to the Council during the public hearing.

The court seemed to take particular interest in the possibility of adopting a provision requiring parties to confer about e-discovery issues early in the proceeding.  Some of the Council's opponents suggested that the proposed amendments could be improved without going so far as to generally require that parties conduct an e-discovery conference and develop a plan addressing e-discovery issues.  One proposal, for example, would give either side the right to demand an e-discovery conference but would impose no requirement absent such a demand.  The court identified the issue of an e-discovery conference as the point of disagreement that the Council and its opponents are most likely to resolve.    

The court also stated that it is open to receiving a revised petition addressing the other issues that  sparked debate during the public hearing.  It acknowledged, however, that most of these issues are controversial and perhaps are best dealt with down the road.

Above all, the court made clear its commitment to adopting a set of e-discovery rules as soon as practicable.  It seems very likely that the court will grant the Judicial Council's revised petition and will wait to deal with the more contentious e-discovery issues in the years to come.

The Dahl court explained that the goal of discovery is still to uncover admissible evidence, no matter how many new and exciting areas of information may exist for attorneys and their clients to fight over.  Not all metadata leads to admissible evidence, and so sweeping requests for metadata (regardless of its likely utility) are unnecessarily costly and burdensome -- a fact also recognized in the Rule 34 Advisory Committee Notes.  Accordingly, the court ruled that the requesting party should tailor its metadata requests to specific word documents, emails, or sets of email in an effort to reduce the burdens of production, thereby increasing the likelihood of prudent and efficient litigation.

As has been noted on this very same website, about three inches down from this post, attorneys should be aware that a successful discovery process requires knowledge of both the technological peculiarities of ediscovery and the established procedures and limits of discovery.  The Dahl opinion confirms that observation.

Finding an efficient means for culling through those exabytes cannot happen a moment too soon.  Electronic discovery not only increases the costs of litigation, it also diminishes the legal profession. 

According to a 2008 American Judicature Society (AJS) report, discovery abuse in civil cases presents a significant problem.  Indeed, nearly half of survey respondents (45 percent) indicate they believe that discovery is abused in every civil case.  Moreover, 71 percent agree that attorneys use discovery as a tool to force settlement.  An astounding 81 percent of AJS report survey respondents stated that their firms turn away cases when it is not cost effective to handle them, and 83 percent said that litigation costs drive cases to settle that deserve to be tried on the merits. 

The end result is that some deserving cases are not brought, and some meritless cases are settled out of court -- not because of the strength of the parties’ claims, but instead because the cost of pursuing or defending those claims fails a rational cost-benefit analysis.  According to Ralph Losey, e-discovery has become a threat to the U.S. legal system.  And that threat is pernicious and spreading.

In his e-Discovery Team blog, Losey -- himself a trial lawyer -- asserts that trial lawyers wrongly blame runaway e-discovery costs on poor rules, laws, and judges.  According to Losey, the true cause of escalating e-discovery costs is the legal profession's failure to keep pace with the dizzying advances of new technologies.

In my opinion, there's plenty of blame to go around when it comes to e-discovery and the rising cost of litigation.  Among other things, there is lack of knowledge on e-discovery issues and technologies; poor planning, selection and application of appropriate technologies to initiate effective searches; failure to collaborate and communicate effectively among counsel and IT staff; and, in particularly eggregious situations, wholesale adoption of the ostrich head-in-sand approach to e-discovery.

One need not become a techie in order to be an effective 21st Century litigator.  But knowing when and where to seek help with respect to e-discovery issues could save you and your clients a lot of headaches and heartbreaks down the road. 

5 days of searching ESI - $250,000.
4 days of filtering search results - $150,000. 
10 rounds of sparring between parties - $300,000.
Google finding the right information - Priceless.

Purchasing more servers or storage peripherals spells ownership but it also has a hardware depreciation and upgrade element to consider. It also means more upkeep that might even require more staffing to maintain the systems. In cost accounting lingo, it is described as the Total Cost of Ownership (TCO). The goal is to decrease TCO, not increase it.

However, this might be the only viable avenue to store data if your client insists on absolute security and confidentiality, despite the fact this might only provide a perception that the data is more safe and secure than being stored somewhere else. No one wants to admit the fact that neither security nor confidentiality can be guaranteed in today's hacker and virus-proned environments. There's simply no absolutes in the IT world.

On the other hand, renting disk space translates into paying someone to be the custodian of your data. This is an increasingly attractive proposition due to the growing terabytes or even petabytes of electronically stored information (ESI) that can overburden internal IT infrastructures. Data organization and ease of retrieval should be one of the key criteria to consider before engaging a vendor to take on this critical task.

The advantage of using a third-party vendor is that there's minimal costs or overhead associated with hardware, software maintenance or potential staffing issues. Since these vendors specialize in storage, they also tend to be very efficient at it. Regardless, hiring a vendor to handle your data is not as easy as it may sound. Before signing the service agreement on the dotted line, consider the following factors:

• Hardware - Does the vendor's system integrate well with your IT infrastructure? It is critical that the vendor system "talks" to your internal document management system (DMS), your email servers and Intranet portal storage elements such as Microsoft SharePoint. All of which involve SQL databases to a great extent.
• Searching - How receptive is the vendor's system when it comes to "data-on-demand"? Is the storage system fully searchable and in what manner? How fast can data be retrieved and produced? How is the data being indexed, migrated or archived in the vendor's system. All of which affect your company's ability to comply with e-discovery requests pertaining to F.R.C.P. Rule 26(f) and/or court subpoenas.
• Administration - Does the vendor's system impose a shift on how you manage your data internally? If so, how easily can your organization and/or vendor adapt to this new paradigm. Do you need adjustments to your IT framework in order to make full use of the vendor's system? Inadequate planning can easily turn "Plug-and-Play" into "Plug-and-Pray."
• Leverage - Does outsourcing data storage provide a better solution than insourcing? In this down economy, IT budgets are closely scrutinized and a misstep can spell a million dollar disaster (think cost effectiveness and client buy-in). In addition, outsourcing data storage potentially provides a justification in passing some of the costs to clients. At the minimum, your expenditure can show up on the client's invoice as a line item even your company might decide to write it off for the client's benefit-- Seeing is believing.
• Collaboration - How well can the vendor's system work with other multi-platform systems that your e-discovery team potentially encounter. The more compatible the vendor, the higher chance of success. Industry standard is king or queen.
• Continuity - Do you have a plan B (or C) if the vendor goes out of business (especially without notice)? How functional is your business without vendor support? What about your vendor's business partners? Can they provide support when the parent has gone fishing?

All of these are not easy questions to answer. However, with adequate planning, some, if not all, of the risks mentioned above can be minimized. If you abide by productivity expert Denis Waitley's  motto of "Expect the best but plan for the worst," at least you can say you have done your best when things go wrong. And they will.

One thing for sure -- Sharepoint is highly scalable. That means it has the technical ability to handle a large number of documents or concurrent users. The downside is that SharePoint data files are stored in such a way that it is difficult to manage and backup down to the folder / document level)-- until now. In collaboration with Microsoft, Mimosa Systems recently announced that they've created a version of NearPoint (an email and file archiving solution) to work with SharePoint content archiving, data protection and e-discovery support.

The Nearpoint/Sharepoint integration claims to:

• Manage data storage costs with complete capture of all SharePoint content including documents, lists, sites and site collections, site configuration and custom metadata.

• Expedite e-discovery processes with integrated search and in-place legal holds across SharePoint server, email and file system content.

• Improve recovery service levels with comprehensive data protection for SharePoint server to allow easy recovery of individual items or complete sites.

That sounds all well and good but getting it to play well with your company's other network gadgets and appliances could be a daunting task. Regardless, having a data map to catalog your company's records would be a great start.

In addition to data mapping, it is critical to set up proper corporate governance policies that reflect business process changes to take advantage of SharePoint's Content Types (think metadata), Site Columns, Workflow, and Security features. Simply put, the corporate governance policy is a set of roles, responsibilities, processes and rules defined within the enterprise to guide content producers in using the SharePoint Portal and all its functionalities. Without a policy that everyone can follow, SharePoint quickly becomes a hodgepodge of unwieldy data. A lack of consistency will result in poor enterprise search and retrieval for e-discovery purposes. Blessing or curse? It's what you make it.

For more information on data mapping, stay tuned to future free webinars similar to this one we offered.

Quite instructive are Canon's and Keithley's examples
Of "lackadaisical attitude" of defendants. As samples:
Do not find that hard drive behind the client's home door,
When discovery has been ongoing for a year or for more.

Do not stumble on computer reports you said "did not exist"
In an e-folder marked "Reports" that you for some reason missed.
And periodically remind clients and their IT personnel
Of the need to preserve the source code that was written on that Dell.

When you don't produce e-mails, the court said in Peskoff
Explain your search method and why, at production, you scoffed.
But if you contributed to information deletion or loss
And the court orders recovery, you won't get your costs!

Do not say you've e-searched when it's just a tall tale:
This was sanctioned under Rule 26 in R&R Sails.
There were costs sanctions also in Ajaxo, among a larger plethora.
And sanction of termination in Arteria and also Pandora.

In Keithley sanctions were imposed even on a party pro se
And in Schwarzenegger for "foot dragging" and a "litany of delays."
But take heed, warned O'Keefe -- don't request termination on whim.
Do not "strike at a king" unless you're sure you'll "kill him."

O'Keefe (plus Equity, Victor) gave lawyers heart attacks.
For saying that search term effectiveness is for experts to crack;
And that if lawyers pick and evaluate the key words instead
They are moving toward places "where angels fear to tread."

The courts warned that when using a method of searching
Learn first of its weaknesses through prior researching.
This was why D'Onofrio rejected what both experts said
And created a brand new search protocol method instead.

Rule 502 on preventing waiver through "reasonable steps"
Saw decisions pronouncing judgment on various missteps.
Alcon acknowledged that the Rule's very recent debut
Was designed to avoid "expensive, painstaking review."

Despite this pronouncement, some courts have cried "waived"
As to attempts made in hindsight to have privilege saved.
Rhoads found possible waiver for documents mistakenly produced
If they were not in the privilege log – there could be no excuse.

And failure to take measures that could prevent waiver
Like claw-back agreements, or Sedona-type saviors
Led to Victor’s conclusion, which uncommonly held
That the attorney-based privilege at issue was quelled.

Moving on, Mancia addressed the Rule 26 obligation
To meet early on regarding e-preservation,
Proclaiming "adversarial conduct" in e-discovery condemned
As a "burden to the American judicial system."

Some courts dove in early to prevent such discord,
Ordering forensic exams to preserve evidentiary records.
To conserve ephemeral info in Xpel, it was fair;
And when defendants were evading service, it was ordered in Allcare.

Other examples included when a party was unable
or unwilling (in Canon) to preserve/produce on the table.
Just remember: as emphasized in Sterle and Square D
Do not interfere with a court-ordered forensic decree.

Rodman, Reinhard and Younessi addressed nonparty subpoenas
And the protection of confidential, trade secret arenas.
Where nonparties are concerned and offer up much resistance
In-house searches are fine, or neutral expert assistance.

The debates continue on metadata versus non-native tracks
And Aquilar labeled metadata as being "the new black."
That court ordered re-production of non-natives with meta
Though the recipient was required to pay costs, as pro rata.

But not all courts required conversion to a metadata mode.
Extra burden led D'Onofrio to an "only if necessary" ode.
And Autotech said doc requests must actually require "native" --
You can't ask for it in hindsight by getting creative.

Yet if e-documents already exist in original native form
And the requests do not contain any language that informs,
White condemned the conversion to non-native in litigation
Since this is done just to increase the opponent's frustration.

Finally, social networks are making an appearance in law
And becoming a most popular e-discovery draw.
The field is wide open on the extent to which these
Are discoverable and admissible, or cannot be seized.

Flagg required defendants to give ISPs consent
And to produce ISP-retrieved records of texts that it sent.
And in Australia a court made clients even more nervous
By allowing Facebook to be used as a method of service!

We hope you've enjoyed this short "Year in Review"
And that all of this knowledge is useful to you.
We await more developments in two thousand and nine;
And wonder whether and where courts will draw any lines.

**For a complete list of the cases discussed above, please contact the author.
 

European nations, having experienced first-hand the horrors related to invasions of privacy and release of personal information in World War II, are more protective of individual privacy than the United States to begin with. To compound matters, United States discovery obligations are more demanding -- by far -- than those in virtually every other jurisdiction in the world.  In response, foreign nations have scrambled to protect their citizens' privacy by placing stringent legislative restrictions on the transmission of electronic data.  French privacy “blocking statutes" (as observed by numerous courts) were designed solely for "frustrating the jurisdiction of the United States" and "provid[ing foreigners] with tactical weapons and bargaining chips" in U.S. courts.  Other countries have enacted similar legislation. 

The resulting differences between U.S. and non-U.S. discovery limits are considerable. For example, when a domestic corporation is required to submit to discovery obligations within the United States, e-mails sent to and received by that corporation's employees can be fair game. But under the European Union Privacy Directive, the privacy of employees is sacred, and electronic transmission of information across international borders can be prohibited without the express consent of the subject of the communication. Because the subordinate nature of the employer-employee relationship may render any such consent inherently coerced, it can be impossible to obtain the required consent of an E.U. corporation's employees in order to produce company e-mails and documents. While the U.S. enjoys a "safe harbor" of sorts with the E.U., this is not a fail-safe solution. The Directive, which has been adopted by numerous countries, is not the only impediment. Recently, China considered similar legislation. At times, U.S. e-discovery has also been threatened by privacy and secrecy laws in Japan, France, Switzerland, Belgium, Germany and Spain.

Surprisingly, there are few court decisions on overseas e-discovery. As a general rule, courts consider a variety of factors in weighing U.S. discovery requests against the stringent privacy requirements of foreign nations. These include: (1) the importance of the documents to the litigation; (2) the respective interests of the United States and the foreign national where the information is located; (3) the degree of specificity in the request; (4) whether the information originated in the United States; (5) the availability of alternate means to obtain the information; (6) the hardship of the foreign party or witness in complying with the discovery requests; and (7) the good faith of the foreign party or witness resisting discovery.

Going forward, corporations and their attorneys should be aware that even an in-depth knowledge of U.S. e-discovery rules is often not enough when requesting e-documents and information from overseas.  As international e-discovery gains traction, a key issue is when and whether the interest of a United States court or litigant is important enough to override the very real foreign state interest presented by foreign privacy legislation.  Courts will have to continue to be mindful of the tension between broad U.S. discovery rules and the restrictive privacy laws of foreign nations.