Archive for June, 2009|Monthly archive page

Quick Review of Legal Tech West

I always like to wait a few days after a TechShow before I  comment on what I saw in order to better digest the experience so after Legal Tech West and the always delightful experience of traffic in LA, I spent a relaxing weekend in San Diego to unwind.

So what did I see at the show?  Data mapping and collection continue to get attention as Nuix added more horsepower to it’s product, Fusion Genome added an ROI calculator and Orange Legal Technologies promoted it’s “OneO Data Transport Service” which claims to quickly map and transfer data among different e-discovery applications.

Guidance introduced EnCase Portable, which  runs on a USB drive and StoredIQ  was showcasing it’s  Desktop Agent, a tool for collection and filtering of relevant data.

But in retrospect, the biggest trend I saw at the show was the continued push to the left of the EDRM model with more and more emphasis on planning and protocols. In fact, if this keeps up we may need a segment in EDRM called “consulting”.

 The trend to incorporate ED more with document management is pushing further into unstructured data and enterprise Content Management.  Kroll Ontrack added Advanced Search Technology to Ontrack Engenium  in order to add e-mail threading and de-duplication capability. Ikon showcased a new set of  technology and services in support of both litigation needs and document management.  Fios meanwhile tried to divert the attention around it’s management restructuring with an all new “Compliant Disposition Methodology”,  focusing on what they call  “information governance” ,  a broad set of  consulting services focused on crafting retention policies and working with document management in order to reduce the volume of corporate legacy data.

The not really new idea is to assess needs BEFORE litigation and establish a plan to handle ESI requests when they come in.  In the consulting world we call that, well … consulting but having Fios push the concept can’t hurt. A rising tide lifts all ships.

And finally judges continued to push the concept of cooperation with the Hon. Dave Waxse, U.S. Magistrate, District of Kansas and the Hon. Andrew J. Peck, U.S. Magistrate, Southern District of New York anchoring a Wednesday AM keynote.  Judge Peck repeated his recent  “wake up call” from his recent decision in William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co. 07 Civ. 10639 (LAK) (AJP) (March 19, 2009) saying he is tired of attorneys doing “drive by” meet and confers while Judge Waxse focused on attorneys who are less than truthful when reporting on the sate of data collection.

All of which led back to the issue of better education of attorneys and a  report I heard from Chuck Kellner that federal judges in Illinois are putting together a training requirement for attorneys who wish to argue e-discovery matters in front of them. No word yet on the specific requirements but it is clear that Federal judges are going to take the lead in raising the bar for ED education.

What Is the Goal of E-Discovery?

With LT West upon us I thought it would be interesting to see what people are talking about on the web with regards to legal technolgy.  As always, Ron Friedmann had a thought provoking post, which he called E-Discovery Goal: Win or Avoid Disaster?  . In it, he posed the theory that lawyers have forgotten the real goal of e-discovery, which he says is winning the case,  and are more focused on simply avoiding disaster. 

Ron referred back to a post he did in 1997, where he said the goals of discovery are: 
                          A. Achieve the best outcome for the client
                          B. Minimize cost
                         C. Learn the facts of the case
                         D. Prepare offense or defense
                         E. Fulfill obligations to produce documents

and then went on to say “I don’t think that has changed.”

With all due respect to Ron, who I think is one of the brightest people I know, in or out of the legal sector, I disagree. I believe that there are two major additions to the goals of discovery since the amendments to the FRCP and they are both significant new obligations. The first is establishing the preservation of electronic documents at a point before the litigation actually commenced, that is that a proper ESI litigation hold strategy was employed and the second is the duty to cooperate in order to better facilitate FRCP 1.

Although both these concepts (preserving necessary documents and cooperation between parties) were in existence before the rise of ESI, recent court decisions have clearly extended their scope to deal with the enormous amounts of electronic documents we now generate.  I’ll be talking more about this obligation tomorrow on a webinar with Chuck Kellner, the  Vice President of eDiscovery Consulting at Anacomp. You can register for the webinar on the Anacomp web site or come by and see us in the exhbit hall at LegalTech.  We’d love to hear your comments on this ongoing issue

Cooperation: It’s Not Just for Grimm and Facciola

We read quite often about the opionions of the above two jurists but lest we think they are the only ones writing about cooperation, consider Ford Motor Co. v. Edgewood Properties, Inc., 2009 WL 1416223 (D.N.J. May 19, 2009). On it’s face, this a case where the lack of a timely objection to the format of production was found to be  a waiver of later objections. 

The specific facts were a lawsuit arising out of a dispute over removal of possibly contaminated concrete during the demolition of a Ford assembly plant in Edison, New Jersey. Edgewood had contracted with Ford to remove concrete from the site which later was revealed to be contaminated. Ford then filed suit under an indemnification clause in the contract.  During discovery, Edgewood asked Ford to produce documents in their native format with accompanying metadata. Ford objected and proffered TIFF files with searchable text. The parties never agreed on a production format and Edgewood delayed any formal objection for approximately eight months.

U.S. Magistrate Judge Esther Salas held that defendant had waived its right to seek production in native format by it;s delay in objecting to the TIFF format until after plaintiff had commenced a rolling production, specifically citing the process for resolving such disputed under Rule 34.

This case actually holds two admonitions beyond the the obvious lesson that counsel should know the rules of discovery, the first of which is that objections must be made in a timely fashion. Judge Grimm disucssed this in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008) where he held that knowledge of both the purpose and process of the FRCP is not an e-discovery issue but a discovery issue and is relevant regardless of forms of production. As Judge Salas noted in her opinion in Edgewood. , “The advent of E-Discovery does not serve to destroy parties’ discovery obligations that would exist in the ordinary course were other media involved.”

Secondly, Judge Salas then went on to reinforce the proposition of the Sedona Cooperation Proclamation   (SCP) by saying ” Parties would be best to heed the admonition of a recent court that “the best solution in the entire area of electronic discovery is cooperation among counsel.” ” More judges are referring to the SCP as a crucial part of their opinions even when the factual issue is on a specific point of contention.

The full opinion can be found at http://www.ediscoverylaw.com/uploads/file/Westlaw_Document_Ford%20Motor%20Co.doc

Enabling Information Cooperation in eDiscovery

Last fall, reacting to what they termed “an unprecedented crisis” in the litigation arena, the Sedona Conference issued their Cooperation Proclamation (SCP) stating that: “The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (”ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.” 

Paragraph 2 of the SCP states:  “With this Proclamation, The Sedona Conference® launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery.  This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.”  

It seems to me we need more discussion about those “practical tools” which will then push the ability to cooperate.  In our discussions on the docNative Paradigm, there has been a tendency to focus on e-discovery technology more than the actual discovery process. But the process itself is under scrutiny from the judges who must deal with it and they are offering some interesting observations about what they want. 

I’ll be discussing those observations, and more, with Chuck Kellner, the  Vice President of eDiscovery Consulting at Anacomp, in a webinar on June 23, just on the eve of LegalTech West in Los Angeles. You can register for the webinar on the Anacomp web site or come by and see us in the exhibit hall at LegalTech.  We’d love to hear your comments on this ongoing issue.

Keyword Search Debate

We all agree.  Keyword Search technology is ineffective right?  Blair & Maron said it in 1985 and TREC said it again this year   .

Magistrate Judge John Facciola of the D.C. District Court said it twice last year (U.S. v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008) and Equity Analytics v. Lundin, No. 1:2007cv2033 (D.D.C. March 7, 2008)) and Magistrate Judge Paul Grimm repeated it emphatically in Victor Stanley, Inc. v. Creative Pipe, Inc. (Civil Action No. MJG-06-2662 (D. Md. May 29, 2008)).

But know we have word that TREC is going to embark on an additional study of the publically available ENRON documents. (Which raises a red flag in my mind: the ENRON documents I’ve seen were predominately non-email which had been converted from their original format to text and lost all headers and attatchments. Hopefully TREC has access to the original document corpus) and the EDRM group has established an EDRM Search Group with it’s own  EDRM Search Working Content Wiki  .

So why are we spending so much time talking about it still?  Judge Grimm gave us two excellent resources for evaluating any search used in ESI  production: The Sedona Conference’s Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery and the federal government’s Text REtrieval Conference (“TREC”) Legal Track initiative.

 Well the problem is one that lit support people have known for years now and Ron Friedmann  pointed out in a blog post in 2007.  “Many lawyers appears honestly to believe that human review is accurate, the “gold standard” for document review. “Honestly held” and “right” can diverge. I, for one, have never seen data to support the commonly accepted “gold standard.”

Craig Ball pointed out this dillema last year in a blog post.  “Keyword search is deemed “good enough” for identifying responsive electronically stored information; yet when privilege is on the line, lawyers insist on page-by-page review. It’s a tacit recognition that keyword search is a blunt instrument — …”

Yet Judge Grimm allows this “blunt instrument” to be used if both sides agree to do so.  As he said in Victor Stanley, “Use of search and information retrieval methodology, for the purpose of identifying and withholding privileged or work product protected information from production, requires the utmost care in selecting methodology that is appropriate for the task … [and] careful advance planning by persons qualified to design effective search methodology.”

Or as Craig puts it, “Victor Stanley preserves the litigants’ inalienable right to be wrong, so long as everyone agrees that wrong is right. It’s a Faustian bargain, but one permitting cases to move forward by simply ignoring pesky questions concerning the integrity and completeness of electronic discovery.”

So we continue to discuss using agreed upon keyword search technology even when we all know it is inadequate.  Faustian bargain indeed.   Which brings us back once again to education.  Until attorneys learn to use the proper technological tools we will continue to have poor results. Studying keyword search technology further isn’t going to change that result.