Category Archives: Best Practices

How to Implement an Effective eDiscovery Search Term Strategy

By Mandi Ross and John Patzakis

A key Federal Rules of Civil Procedure provision that greatly impacts eDiscovery processes is Rule 26(f), which requires the parties’ counsel to “meet and confer” in advance of the pre-trial scheduling conference on key discovery matters, including the preservation, disclosure and exchange of potentially relevant electronically stored information (ESI). With the risks and costs associated with eDiscovery, this early meeting of counsel is a critically important means to manage and control the cost of eDiscovery, and to ensure relevant ESI is preserved.

A very good authority on the Rule 26(f) eDiscovery conference is the “Suggested Protocol for Discovery of Electronically Stored Information,” provided by then Magistrate Judge Paul W. Grimm and his joint bar-court committee. Under Section 8 of the Model Protocol, the topics to be discussed at the Rule 26(f) conference include: “Search methodologies for retrieving or reviewing ESI such as identification of the systems to be searched;” “the use of key word searches, with an agreement on the words or terms to be searched;” “limitations on the time frame of ESI to be searched;” and “limitations on the fields or document types to be searched.”x1-collection-img

Optimizing the process of developing keyword searches, however, is no easy task, especially without the right technology and expertise. The typical approach of brainstorming a list of terms that may be relevant and running the search on a dataset to be reviewed results in a wide range of inefficiencies. Negotiations over proper usage of search terms may become onerous and contentious. Judges are often tasked with making determinations regarding the aptness of the methodology, and many are reluctant to do so. Thus, the use of outside expertise leveraging indexing in place technology is beneficial in building an effective and comprehensive search term strategy.

The courts agree. In Victor Stanley v. Creative Pipe, U.S. District Court Judge Paul Grimm explains, “Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology.”

Building a sound search strategy is akin to constructing a building. First, lay the foundation with a clear understanding of the claims and defenses of the case and the types of documents that will support a legal strategy. Once a solid foundation is built, the structure of language, logical expressions, and metadata are blended as necessary to create the appropriate set of robust Boolean searches. These searches then target the retrieval of responsive documents, and consistently achieve a staggering 80 percent reduction in data volumes to be reviewed.

It’s quite simple. If a document does not contain the defined language, then the document is unlikely to be relevant. The best way to find the language specific to the claims and defenses is to create a linguistic narrative of the case. This not only helps construct a roadmap for a comprehensive strategy designed to reduce the volume of data, it also creates a thorough categorization system for organization and prioritization of review. The approach is straightforward, flexible, and adaptive to client objectives, whether during early case assessment, linear or technology-assisted review, or anything in between.

The narrative search approach includes the following steps:

  1. Issue Analysis: Create an unambiguous definition of each issue that characterizes the claims being made and the defenses being offered.
  2. Logical Expression Definition: Define the specific expressions that encapsulate each issue. There may be multiple expressions required to convey the full meaning of the issue.
  3. Component Identification and Expansion: Distill each logical expression into specific components. These components form the basis for the expansion effort, which is the identification of words that convey the same conceptual meaning (synonyms).
  4. Search Strategies: Determine the appropriate parameters to be used for proximity, as well as developing a strategy for searching non-standard, structured data, such as spreadsheets, non-text, or database files.
  5. Test Precision and Recall: In tandem with the case team, review small sample sets to refine the logical expression statements to improve precision and recall.

The effectuation of this process requires the right technology that enables its application in real time. The ability to index data in place is a game changer, as it provides legal teams early insight into the data and validates search term sampling and testing instantly, without first requiring data collection. This is in contrast to the outdated, costly, and time-consuming process involving manual data collection and subsequent migration into a physical eDiscovery processing platform. The latter process negates counsel’s ability to conduct any meaningful application of search term proportionality, without first incurring significant expense and loss of time.

X1 Distributed Discovery enables enterprises to quickly and easily search across thousands of distributed endpoints from a central location. This allows organizations to easily perform unified complex searches across content, metadata, or both, and obtain full results in minutes, enabling true pre-collection search analytics with live keyword analysis and distributed processing and collection in parallel at the custodian level. This dramatically shortens the identification/collection process by weeks if not months, curtails processing and review costs by not over-collecting data, and provides confidence to the legal team with a highly transparent, consistent and systemized process.

Led by an experienced consulting team that leverages cutting-edge technology, this innovative narrative methodology, created by the experts at Prism Litigation Technology, enriches common search terms by adding layers of linguistic and data science expertise to create a fully defensible, transparent, and cogent approach to eDiscovery. For more on this workflow, please see the white paper: Don’t Stop Believin’: The Staying Power of Search Term Optimization.


Mandi Ross is the CEO of Prism Litigation Technology (www.prismlit.com)

John Patzakis is Chief Legal Officer and Executive Chairman at X1 (www.X1.com)

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True Proportionality for eDiscovery Requires Smart Pre-Collection Analysis

By John Patzakis

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. However attorneys representing enterprises are essentially flying blind on this analysis when it matters most. Prior to the custodian data being actually collected, processed and analyzed, attorneys do not have any real visibility into the potentially relevant ESI across an organization. This is especially true in regard to unstructured, distributed data, which is invariably the majority of ESI that is ultimately collected in a given matter.proportionality

If accurate pre-collection data insight were available to counsel, that game-changing factor would enable counsel to set reasonable discovery limits and ultimately process, host, review and produce much less ESI.  Counsel can further use pre-collection proportionality analysis to gather key information, develop a litigation budget, and better manage litigation deadlines. Such insights can also foster cooperation by informing the parties early in the process about where relevant ESI is located, and what keywords and other search parameters can identify and pinpoint relevant ESI.

The problem is any keyword protocols are mostly guesswork at the early stage of litigation, as, under outdated but still widely used eDiscovery practices, the costly and time consuming steps of actual data collection and processing must occur before meaningful proportionality analysis can take place. When you hear eDiscovery practitioners talk about proportionality, they are invariably speaking of a post-collection, pre-review process. But without requisite pre-collection visibility into distributed ESI, counsel typically resort to directing broad collection efforts, resulting in much greater costs, burden and delays.

X1 recently hosted a webinar featuring prominent industry experts including attorney David Horrigan of Relativity, Mandi Ross of Prism Litigation Technology and Ben Sexton of JND eDiscovery, addressing the issues of remote ESI collection and proportionality. David Horrigan outlined in succinct detail the legal concepts of proportionality under the Federal Rules, the Sedona Principles and as applied in case law. Mandi Ross explained how she applies proportionality when advising lawyers and judges through custodian interviews, coupled with detailed keyword search term analysis based upon the matter’s specific claims and defenses. She noted that technology such as X1 greatly enables the application of her practice in real time: “The ability to index in place is a game changer because we have the ability to gain insight into the data and validate custodian interview data without first requiring that data to be collected.”

The webinar also featured a live exercise performing a pre-collection proportionality analysis on remote employee data with X1 Distributed Discovery. The panelists provided comments and insights contrasting what they saw with the outdated, costly, and time consuming process involving manual data collection and subsequent migration into a hardware processing appliance. The later process negates counsel’s ability to conduct any meaningful application of proportionality, without first incurring significant expense and loss of time. A recording of the webinar can be accessed here.

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Remote Collection: The Apple Pay of eDiscovery in a COVID-19 World

By: Craig Carpenter

I often continue doing things just because that’s the way I’ve always done them.  There is a level of comfort that comes from familiarity, and to be honest as I age I realize I can get more set in my ways (as my children often tell me), eschewing new ways of doing things – even if they are quicker or more efficient.  Sometimes it takes a major disruption to force change, as the eDiscovery market saw with accelerated adoption of Predictive Coding in the wake of the Great Recession.  This is true in many industries, including consumer products: witness the accelerated adoption of “contactless payment” like Apple Pay during the COVID-19 pandemic.  It has been available for years, but adopted mainly by younger generations while us old folks clung to credit cards and, in some cases, cash (gasp!).  But COVID-19 has changed this dynamic for many, myself included, as the prospect of touching a credit card machine is now unacceptable.  Whereas using Apple Pay was a ‘nice-to-have’ before COVID-19, it has become a ‘must-have’ now.  This type of resistance to change is arguably even more commonplace in the legal world, where convention and comfort often reign supreme.  How we have been conducting eDiscovery collection for years is a perfect example of clinging to outdated methods – but with the advent of COVID-19, this too is about to change for good.

Collection of digital evidence in legal proceedings was an implicit requirement under the Federal Rules of Civil Procedure (FRCP) long before it was codified explicitly in the 2006 amendments with the addition of Electronically Stored Information (ESI) under amended Rule 34(a)) as a “new” category.  I distinctly remember conducting discovery in 1998 and 1999 as a 3rd year law student and then 1st year associate for a Bay Area law firm: it was the proverbial “banker box” process, with all discovery in paper form.  In those days, even email messages and Word Perfect documents were simply printed out to be Bates stamped and reviewed in hard copy by hand.  Document review has always been tedious, but at least back then the volumes were significantly lower than they are these days.

During this timeframe, however, email and the dissemination of ever-greater volumes of electronic information it facilitated was exploding.  This, of course, meant that evidence (in the forensic context) and relevant information for eDiscovery was increasingly digital in nature.  So when discovery practitioners went looking for tools to help them preserve and collect digital information, where did they turn?  To the forensic world, of course, as the more stringent requirements and processes of criminal proceedings and evidence necessitated the development of such tools earlier than had been needed in civil discovery.  And if a tool was good enough for criminal proceedings, it should be plenty good enough for those in the civil world.  Thus, forensic tools like Guidance’s Encase® and AccessData’s FTK® which were built for law enforcement crossed over into the civil world.

However, the needs of the data collection process for civil discovery were and remain quite different from those of the criminal world:

  • On average civil discovery involves far more “custodians” (owners or stewards of information) than criminal proceedings, e.g. 5-15 custodians in civil matters vs. 1, maybe 2, in criminal
  • Whereas a typical criminal proceeding focuses on the communication media of one or occasionally a few alleged perpetrators (i.e. their cell phone, laptop, social media), civil discovery is typically significantly broader given the greater number of corporation applications and data repositories, including corporate email, file shares, ‘loose files’ (e.g. Word or Excel documents only stored locally), cloud storage repositories like Dropbox or Google Vault
  • Due to the larger number of custodians and typically broader data types to be searched, the volume of information in civil discovery is usually significantly greater than in a criminal proceeding
  • In handling criminal evidence there is a presumption that the alleged perpetrator may have tried to hide, alter or destroy evidence; absent very unusual circumstances, no such presumption exists in civil discovery
  • While confiscation of devices (laptops, desktops, cell phones, records) is the standard in criminal proceedings, the opposite is true in civil discovery. Custodians need their devices so they can do their jobs
  • Collection of evidence in criminal proceedings is handled by law enforcement (e.g. upon arrest or as part of a ‘dawn raid’ type of event), while the parties themselves conduct civil discovery (as a business process typically handled by legal or outsourced to service providers)

These differences were insignificant when data volumes were small and the data was relatively easy to get to, as was the case for many years.  And as the first technology on the market, forensic tools and vendors did a great job of building and defending their incumbency, through certifications, “court-cited workflows” and knowledge bases widely advertising their deep expertise in forensic collection as practiced by a cadre of forensic examiners leveraging their technical abilities into lucrative careers – thereby creating a significant barrier to entry for non-forensic eDiscovery collection tools and practitioners.

In spite of this strong incumbency, almost all corporate legal departments have long wanted a better approach to collection than forensic tools offered; many of their outside counsel have felt similarly.  They have long felt collection using forensic tools and workflows were and remain deeply flawed for eDiscovery in a number of ways:

  • Chronic overcollection: as forensic tools were built to capture all information, including things like slack space which can be important in criminal proceedings but are almost never even in scope in civil matters, the volume of data collected is far greater than needed. While service providers charging hourly professional services time and monthly per-GB hosting fees may not mind, for clients paying to collect/filter/host/review/produce knowingly unnecessary data this makes no sense and adds significant cost to the entire process, each and every time
  • Weeks or months-long process: because forensic tools must process data on a server before searching or culling it, they require physical access to a device (e.g. via a USB port). There is an option to copy entire drives with GBs of data through a VPN connection, but this approach has never worked well, if at all.  Given the coordination needed to gain physical access to devices which may be located in myriad different cities or countries, as well as the need to complete collection before paring down or even searching of data can begin, what should take hours or days instead takes weeks if not months
  • Highly disruptive: as each forensic image is being taken of each laptop or desktop, the user of each such machine must stop whatever they are doing and surrender their machine to the forensic staff for a day or more. Even if there is a spare laptop available, it will often have none of their ‘stuff’ on it.  Needless to say, this highly intrusive process makes each such worker far less productive and is very disruptive
  • “Recreating the wheel” every time: when the next matter arrives, can forensic examiners simply use the data from the last collection? Unfortunately, no, as each custodian has presumably created and received new data, necessitating the whole process from before be repeated.  Forensic collection quite literally recreates the wheel with every collection

By contrast, remote collection is designed specifically for civil eDiscovery.  It is built for a distributed workforce and requires no physical access to any devices.  A small software agent is installed on each device which creates its own local index; legal staff can then simply search this index for whatever ESI they want to find.  This distributed architecture facilitates ‘Pre-Case Assessment’, where search terms are sampled on data in-place, before any ESI is collected.  This turns the forensic collection workflow on its head, as analysis can be done from the very beginning of the preservation/collection process, allowing lawyers to gain insight far earlier in any proceeding and supporting a surgical collection process, leading to far lower data volumes (and therefore much lower eDiscovery costs).  And because remote collection can be an entirely cloud-based process, no hardware or specialized staff is required – in fact, collections can be done without IT ever being involved.

Why hasn’t the industry adopted remote collection before now?  Because everyone involved in the process except the client was benefited from it: forensic experts, service providers and forensic technology providers.  They had a strong incentive to keep things as they had always been, to the client’s detriment.  In a COVID-19 world, however, even these groups must change their workflows as physical access to devices has not only fallen out of favor – it is now impossible and perhaps even dangerous.  What remote employee would want a stranger to come to their home and take their laptop for hours?  That scenario is simply no longer an option.  Similarly to how touching a point-of-sale machine went from a minor inconvenience to a wildly irresponsible and even dangerous activity when Apple Pay is a far better approach, forensic collection in eDiscovery is in the process of giving way to remote collection.  Clients will be much better off for it.

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How the Remote Workforce Impacts GDPR and CCPA Compliance

By John Patzakis

While our personal and business lives will hopefully return to normal soon, COVID-19 is only accelerating the trend of an increasingly remote and distributed workforce. This “new normal” will necessitate relying on the latest technology and updated workflows to comply with legal, privacy, and information governance requirements, including the GDPR and similar US-based laws.

A core requirement of both the GDPR and the similar California Consumer Privacy Act is the ability to demonstrate and prove that personal data is being protected, thus requiring information governance capabilities that allow companies to efficiently identify and remediate personal data of EU and California residents. For instance, the UK Information Commissioners Office (ICO) provides that “The GDPR places a high expectation on you to provide information in response to a SAR (Subject Access Request). Whilst it may be challenging, you should make extensive efforts to find and retrieve the requested information.”[1]CCPA Image

Under the GDPR, there is no distinction between structured versus unstructured electronic data in terms of the regulation’s scope. The key consideration is whether a data controller or processor has control over personal data, regardless of where it is located in the organization.

The UK ICO, a key government regulator that interprets and enforces the GDPR, recently issued important draft guidance on the scope of GDPR data subject access rights, including as it relates to unstructured electronic information. Notably, the ICO notes that “emails stored on your computer are a form of electronic record to which the general principles (under the GDPR) apply.” In fact, the ICO notes that home computers and personal email accounts of employees are subject to GDPR if they contain personal data originating from the employers networks or processing activities.[2]

CCPA          

The California Attorney General released second and presumably final round draft regulations under the California Consumer Privacy Act (CCPA) that reflect how unstructured electronic data will be treated under the Act.[3] The proposed rules outline how the California AG is interpreting and will be enforcing the CCPA. Under § 999.313(d)(2) data from archived or backup systems are —unlike the GDPR— exempt from the CCPA’s scope, unless those archives are restored and become active: “A business shall comply with a consumer’s request to delete their personal information by: a. Permanently and completely erasing the personal information on its existing systems with the exception of archived or back-up systems.”

What is very notable is that the only technical exception to the CCPA is unrestored archived and back-up data. Like the GDPR, there is no distinction between unstructured and structured electronic data. The CCPA guidance broadly provides that companies must permanently delete personal information from their “existing systems.” In the first round of public comments, an insurance industry lobbying group argued that unstructured data be exempted from the CCPA. As reflected by revised guidance, that suggestion was rejected by the California Attorney General.

Further to this point, AMLaw 100 firm Davis Wright Tremaine provides public guidance on the CCPA as follows: “Access requests may be easier for companies that maintain databases, but most companies also collect unstructured data (such as emails, images, files, etc.) related to consumers. Given that ‘personal information’ includes any information capable of being associated with a consumer or a household, requests will encompass a wide range of data that a business possesses.”[4]

So to achieve GDPR and CCPA compliance, organizations must ensure not only that explicit policies and procedures are in place for handling personal information, but also the ability to prove that those policies and procedures are being followed and operationally enforced. The new normal of remote workforces is a critical challenge that must be addressed.

What has always been needed is gaining immediate visibility into unstructured distributed data across the enterprise, including on laptops and other unstructured data maintained by remote workforces, through the ability to search and report across several thousand endpoints and other unstructured data sources, and return results within minutes instead of days or weeks. The need for such an operational capability provided by best practices technology is further heightened by the urgency of CCPA and GDPR compliance.

Solving this collection challenge is X1 Distributed Discovery, which is specially designed to address the challenges presented by remote and distributed workforces.  X1 Distributed Discovery (X1DD) enables enterprises to quickly and easily search across up to thousands of distributed endpoints and data servers from a central location.  Legal and compliance teams can easily perform unified complex searches across both unstructured content and metadata, obtaining statistical insight into the data in minutes, and full results with completed collection in hours, instead of days or weeks.

To learn more about this capability purpose-built for remote eDiscovery collection and data audits, please contact us.

NOTES:

[1] https://ico.org.uk/media/about-the-ico/consultations/2616442/right-of-access-draft-consultation-20191204.pdf

[2] Id.

[3] https://oag.ca.gov/sites/all/files/agweb/pdfs/privacy/ccpa-text-of-second-set-clean-031120.pdf?

[4] https://www.dwt.com/blogs/privacy–security-law-blog/2019/07/consumer-rights-under-to-ccpa-part-1-what-are-they

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Remote ESI Collection and Data Audits in the Time of Social Distancing

By John Patzakis

The vital global effort to contain the COVID-19 pandemic will likely disrupt our lives and workflows for some time. While our personal and business lives will hopefully return to normal soon, the trend of an increasingly remote and distributed workforce is here to stay. This “new normal” will necessitate relying on the latest technology and updated workflows to comply with legal, privacy, and information governance requirements.

From an eDiscovery perspective, the legacy manual collection workflow involving travel, physical access and one-time mass collection of custodian laptops, file servers and email accounts is a non-starter under current travel ban and social distancing policies, and does not scale for the new era of remote and distributed workforces going forward. In addition to the public health constraints, manual collection efforts are expensive, disruptive and time-consuming as many times an “overkill” method of forensic image collection process is employed, thus substantially driving up eDiscovery costs.

When it comes to technical approaches, endpoint forensic crawling methods are now a non-starter. Network bandwidth constraints coupled with the requirement to migrate all endpoint data back to the forensic crawling tool renders the approach ineffective, especially with remote workers needing to VPN into a corporate network.  Right now, corporate network bandwidth is at a premium, and the last thing a company needs is their network shut down by inefficient remote forensic tools.

For example, with a forensic crawling tool, to search a custodian’s laptop with 10 gigabytes of email and documents, all 10 gigabytes must be copied and transmitted over the network, where it is then searched, all of which takes at least several hours per computer. So, most organizations choose to force collect all 10 gigabytes. The case of U.S. ex rel. McBride v. Halliburton Co.  272 F.R.D. 235 (2011), Illustrates this specific pain point well. In McBride, Magistrate Judge John Facciola’s instructive opinion outlines Halliburton’s eDiscovery struggles to collect and process data from remote locations:

“Since the defendants employ persons overseas, this data collection may have to be shipped to the United States, or sent by network connections with finite capacity, which may require several days just to copy and transmit the data from a single custodian . . . (Halliburton) estimates that each custodian averages 15–20 gigabytes of data, and collection can take two to ten days per custodian. The data must then be processed to be rendered searchable by the review tool being used, a process that can overwhelm the computer’s capacity and require that the data be processed by batch, as opposed to all at once.”

Halliburton represented to the court that they spent hundreds of thousands of dollars on eDiscovery for only a few dozen remotely located custodians. The need to force-collect the remote custodians’ entire set of data and then sort it out through the expensive eDiscovery processing phase, instead of culling, filtering and searching the data at the point of collection drove up the costs.

Solving this collection challenge is X1 Distributed Discovery, which is specially designed to address the challenges presented by remote and distributed workforces.  X1 Distributed Discovery (X1DD) enables enterprises to quickly and easily search across up to thousands of distributed endpoints and data servers from a central location.  Legal and compliance teams can easily perform unified complex searches across both unstructured content and metadata, obtaining statistical insight into the data in minutes, and full results with completed collection in hours, instead of days or weeks. The key to X1’s scalability is its unique ability to index and search data in place, thereby enabling a highly detailed and iterative search and analysis, and then only collecting data responsive to those steps. blog-relativity-collect-v3

X1DD operates on-demand where your data currently resides — on desktops, laptops, servers, or even the cloud — without disruption to business operations and without requiring extensive or complex hardware configurations. After indexing of systems has completed (typically a few hours to a day depending on data volumes), clients and their outside counsel or service provider may then:

  • Conduct Boolean and keyword searches of relevant custodial data sources for ESI, returning search results within minutes by custodian, file type and location.
  • Preview any document in-place, before collection, including any or all documents with search hits.
  • Remotely collect and export responsive ESI from each system directly into a Relativity® or RelativityOne® workspace for processing, analysis and review or any other processing or review platform via standard load file. Export text and metadata only or full native files.
  • Export responsive ESI directly into other analytics engines, e.g. Brainspace®, H5® or any other platform that accepts a standard load file.
  • Conduct iterative “search/analyze/export-into-Relativity” processes as frequently and as many times as desired.

To learn more about this capability purpose-built for remote eDiscovery collection and data audits, please contact us.

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