Industry Experts from Relativity and Insight Optix Discuss Operationalizing Proportionality

By John Patzakis

Industry experts including Relativity eDiscovery attorney David Horrigan, Relativity Product Manager Greg Evans and Insight Optix CEO Mandi Ross addressed utilizing cutting-edge ESI collection processes and technologies to effectuate proportionality in a recent webinar. Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. Lawyers that take full advantage of the proportionality rule can greatly reduce cost, time and risk associated with otherwise inefficient eDiscovery. While proportionality is an often-discussed ideal sought by most legal stakeholders, especially corporate counsel, the discussion focused on how to use processes and best practices to operationally attain this goal.

David Horrigan first provided a detailed analysis of Rule 26(b)(1), and some key case law applying the proportionality rule, including McMaster v. Kohl’s Dep’t Stores, Inc., No. 18-13875 (E.D. Mich. July 24, 2020). Horrigan commented that McMaster generally supports the application of a process that effectively applies proportionality on an operational basis through an iterative exercise to identify relevant custodians, their data sources, applicable data ranges, file types and agreed upon keywords. Such a “targeted, automated and proportional” collection process can be applied to collect only the data that is responsive to this specific criteria.

Mandi Ross explained that proportionality is getting a further boost as George Washington University Law School is sponsoring the development of an important proportionality benefit-and-burden model that provides a practical structure for assessing claims of proportionality. The model features a heat map mechanism to identify relevant custodians and data sources to enable a more objective application of proportionality, thereby facilitating negotiations and better informing the bench. Mandi is key leader of a team of industry legal and technology exports drafting the GW Law model.

Mandi then outlined her typical workflow applying the aforementioned proportionality heat map in an iterative manner to identify key custodians, data sources, and the potentially relevant data itself. To effectuate this, Mandi noted that “X1 Distributed Discovery and Relativity Collect gives us the ability to understand the story the data tells, using (X1’s) index in-place and also allows us to optimize and target our collection efforts.”

To illustrate Mandi’s point, the webinar then featured a live demonstration showing X1 quickly collecting data across custodians from their laptops, fileservers or other network sources, and seamlessly importing that data into RelativityOne in minutes. Relativity Product Manager Greg Evans outlined how the Relativity/X1 integration streamlines eDiscovery processes by collapsing the many hand-offs built into current EDRM workflows to provide greater speed and defensibility. Evans also said that new normal of web-enabled collections of remote custodians and data sources was a major driver for the Relativity/X1 alliance, as “remote collections now represent 90 percent of all eDiscovery collections happening right now.”

The live demonstration performed by Greg Evans highlighted in real time how the integration improves the enterprise eDiscovery collection and ECA process by enabling a targeted, automated and proportional search and collection process, with immediate pre-collection visibility into custodial data. X1 Distributed Discovery enhances the eDiscovery workflow with integrated culling and deduplication, thereby eliminating the need for expensive and cumbersome electronically stored information (ESI) processing tools. That way, the ESI can be populated straight into Relativity from an X1 collection.

A recording of the webinar on proportionality can be accessed here.

And a link directly to the demo featuring the X1 and Relativity integration can be accessed here.

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On TAP: Targeted, Automated, and Proportional Collection for Modern e-Discovery

By John Patzakis

Proportionality is now the hottest legal issue in the area of eDiscovery, with the largest number of eDiscovery-related cases in the past year addressing the subject. eDiscovery attorney Kelly Twigger leads a team who produced an excellent analysis of 2020 case law, noting “a big jump to 889 in 2020” of cases addressing proportionality, “which represented nearly a third (31%) of all (eDiscovery) case law decisions last year.” The report notes that “[p]roportionality arguments have become a weapon in arguing scope of discovery and the sharp rise in disputes has illustrated the need for more systematic and standardized approaches to assessing proportionality in cases today.” 

Proportionality-based eDiscovery is a goal that all judges and corporate attorneys want to attain. Under Federal Rule of Civil Procedure 26(b)(1), parties may discover any non-privileged material that is relevant to any party’s claim or defense and proportional to the needs of the case. Lawyers that take full advantage of the proportionality rule can greatly reduce cost, time and risk associated with otherwise inefficient eDiscovery.

Proportionality is getting a further boost as George Washington University Law School is developing an important proportionality benefit-and-burden model that provides a practical structure for assessing claims of proportionality. The model features a heat map mechanism to identify relevant custodians and data sources to enable a more objective application of proportionality, thereby facilitating negotiations and better informing the bench.

The GW Law model is much needed, as while there is keen awareness of proportionality in the legal community, attaining the benefits requires the ability to operationalize workflows as far upstream in the eDiscovery process as possible. For instance, when you’re engaging in data over-collection, which in turn runs up of a lot of human time and processing costs, the ship has largely sailed before you are able to perform early case assessments and data relevancy analysis, as much of the discovery costs have already been incurred at that point. The case law and the Federal Rules provide that the duty to preserve only applies to potentially relevant information, but unless you have the right operational processes in place, you’re losing out on the ability to attain the benefits of proportionality.

An example of a process that effectively applies proportionality on an operational basis would be an iterative exercise to identify relevant custodians, their data sources, applicable data ranges, file types and agreed upon keywords, following the process outlined in  McMaster v. Kohl’s Dep’t Stores, Inc., No. 18-13875 (E.D. Mich. July 24, 2020), and collect only the data that is responsive to this specific criteria. The latest enterprise collection tech from Relativity and X1 enable such detailed and proportional criteria to be applied in-place, at the point of collection. This reduces the data volume funnel by as much as 98 percent from over-collection models, yet with increased transparency and compliance. In other words, a collection process that targeted, automated and proportional, instead of one that is overbroad and manual.

To learn more about these concepts, please tune in on April 13, where attorney David Horrigan of Relativity and Mandi Ross of Prism Litigation Technology will be leading a webinar to discuss the legal and operational considerations and benefits of proportionality. The webinar will also feature a live exercise performing a pre-collection proportionality analysis on remote employee data. You can register here.

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Why Post-Level Parsing is Critical for Effective Social Media Evidence Collection

By John Patzakis

As succinctly noted by The Florida Bar Association in its publication, Florida Law Journal: “Social media is everywhere. Nearly everyone uses it. Litigants who understand social media–and its benefits and limitations–can immeasurably help their clients resolve disputes…it is inevitable that the social media accounts of at least one person involved in a dispute will have potentially relevant and discoverable information.“ “Social Media Evidence: What You Can’t Use Won’t Help You” Florida Law Journal, Volume 88, No. 1.

The high volume of relevant social media evidence means that lawyers are under an ethical duty of competence to address and account for it in their litigation and compliance matters. For this reason, there has been a strong demand for social media evidence collection software and services. However, Facebook, the most widely used social media platform, rolled out a completely new interface and data format in the latter part of 2020 for all their 2.4 billion users. This broke every social media evidence tool on the market, causing a major disruption of eDiscovery and compliance workflows. In response, social media evidence collection tools either exited the market, changed their model to services, or provided flat file screen shots as their output.

Flat file screen shots of social media are of limited value, as what they generally entail is a screenshot image file without metadata, other than what is visible on the image itself. This is problematic as there are many important but hidden metadata fields associated with social media posts that need to be parsed and populated into the appropriate fields associated with the post. Also, flat images do not enable effective text extraction, and it is impossible to cull, process, display, and apply analytics to flat file outputs in attorney review platforms such as Relativity. Associated comments to a post are not collected, or at best are truncated and not displayed in line.

Conversely, post-level native collection of social media is ideal, because it enables the collection of the social media post as a parent item with all associated metadata and comments preserved and displayed inline. This will enable the automated generation of robust load files that include date stamps and other key metadata, extracted text for searching, family post identification and associated comments. Additionally, post-level hash values can be readily generated at the point of collection and verified to establish evidentiary authentication.  All this enables a very fluid and scalable workflow that dramatically reduces downstream processing and review platform upload costs.

With the recent release of version 5.12, X1 Social Discovery is the only eDiscovery solution to provide post-level parsing for Facebook timeline posts in the new Facebook format, as well as for Twitter feeds. To learn more about this important functionality, watch the webinar.

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Full Disk Imaging Not Required for eDiscovery Collections

In Fact, Courts and Legal Commentators Disfavor the Practice

By John Patzakis[1]

The collection and preservation of Electronically Stored Information (ESI) in the enterprise remains a significant and costly pain point for organizations. Leading industry research firm Gartner notes that eDiscovery collection and preservation processes “can be intrusive, time consuming and costly.”[2]  And recent court decisions imposing sanctions on corporate litigants who failed to meet their ESI preservation obligations are symptomatic of these pain points.[3]

A key issue regarding collection is that many in the eDiscovery services community standardized on full disk imaging as their default collection practice.  This is problematic for several reasons. For one, full-disk imaging is burdensome because the process often involves service providers traveling out to the individual custodians, which is very disruptive to employees, not to mention time consuming. Additionally, as eDiscovery processing and hosting fees are usually calculated on a per-gigabyte basis, costs are increased exponentially. In a word, this is overkill, with much more effective and efficient options now available.

Full disk images capture every bit and byte on a hard drive, including system and application files, unallocated space and a host of irrelevant user-created data. While full disk images may be warranted in some limited situations, the expense and burden associated with the practice can be quite extensive, particularly in matters that involve multiple custodians.

It is established law that the duty to preserve evidence, including ESI, extends only to relevant information[4]  The vast majority of ESI on a full disk image will typically constitute irrelevant information. As stated by one court, “imaging a hard drive results in the production of massive amounts of irrelevant, and perhaps privileged, information.”[5] The highly influential Sedona Conference notes: “Civil litigation should not be approached as if information systems were crime scenes that justify forensic investigation at every opportunity to identify and preserve every detail.”

And that: “Forensic data collection requires intrusive access to desktop, server, laptop, or other hard drives or media storage devices.”  While noting the practice is acceptable in some limited circumstances, “making a forensic copy of computers is only the first step of an expensive, complex, and difficult process of data analysis . . . it should not be required unless circumstances specifically warrant the additional cost and burden and there is no less burdensome option available.”[6]

This disfavoring of forensic imaging is also reflected in the increased emphasis of proportionality under recent amendment to Federal Rule of Civil Procedure 26(b)(1). The over-arching theme from case law and the Federal Rules is that ESI preservation efforts should be reasonable, proportionate, and targeted to only relevant information, as opposed to being overly broad and unduly burdensome.

Courts do require that ESI be collected in a forensically sound manner, which does not mean a full forensic disk image is required, but generally does entail that metadata is not altered and a documented chain of custody is maintained. More advanced enterprise class technology can accomplish remote searches across multitudes of custodians that are narrowly tailored to collect only potentially relevant information while preserving metadata at the same time. This process is better, faster and dramatically less expensive than manual disk imaging.

In fact, The Sedona principles do outline such an alternative to forensic disk imaging: “Automated or computer-assisted collection involves using computerized processes to collect ESI meeting certain criteria, such as search terms, file and message dates, or folder locations. Automated collection can be integrated with an overall electronic data archiving or retention system, or it can be implemented using technology specifically designated to retrieve information on a case-by-case basis.”

This language maps directly to the capabilities of X1 Distributed Discovery (X1DD), which enables parties to perform targeted search and collection of the ESI of up to thousands of endpoints over the internal network without disrupting operations. The search results are returned in minutes, not weeks, and thus can be highly granular and iterative, based upon multiple keywords, date ranges, file types, or other parameters. This approach typically reduces the eDiscovery collection and processing costs by at least one order of magnitude (90%). This method is sound from an evidentiary standpoint as the collected data is preserved in its native file format with its metadata intact. X1DD features a solid chain of custody and robust logging, tracking and reporting.

And in line with the concepts outlined in the revised Sedona Commentary, X1DD provides a repeatable, verifiable and documented process for the requisite defensibility. 


NOTES:

[1]John Patzakis is the Chief Legal Officer of X1.

[2] “Market Guide for E-Discovery Solutions” Gartner, June 30, 2016

[3] (Matthew Enter., Inc. v. Chrysler Grp. LLC, 2016 WL 2957133 (N.D. Cal. May 23, 2016). (Imposing severe evidentiary including allowing the defense to use the fact of ESI spoliation to rebut testimony from the plaintiff’s witnesses and payment of attorney’s fees incurred by the defendant) Internmatch v. Nxtbigthing, LLC, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016), a U.S. District Court imposed similar sanctions based upon the corporate defendant’s suspect ESI preservation efforts.

[4] Hynix Semiconductor Inc. v. Rambus Inc., 2006 WL 565893 (N.D.Cal. Jan. 5, 2006) at *27. (“The duty to preserve evidence, once it attaches, does not extend beyond evidence that is relevant and material to the claims at issue in the litigation.”)  As noted by the Zubulake court, “Clearly [there is no duty to] preserve every shred of paper, every e-mail or electronic document, and every backup tape…Such a rule would cripple large corporations.”  Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2004) (“Zubulake IV”).

[5] Deipenhorst v. City of Battle Creek, 2006 WL 1851243 (W.D.Mich. June 30, 2006) at *3.  In noting that the “imaging of computer hard drives is an expensive process, and adds to the burden of litigation for both parties,” the Deipenhorst court declined to require the production of  full disk images absent a strong showing of good cause. See also, Fasteners for Retail, Inc. v. DeJohn et al., No 1000333 (Ct. App.Ohio April 24, 2014).

[6] The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018).

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