Category Archives: Best Practices

November 1, 2022 · 11:42 AM

Proportionality in eDiscovery is Ideal, but Difficult to Realize Without an Optimized Process

By John Patzakis

(Originally published October 24, 2022 by JD Supra and EDRM)

Image: Kaylee Walstad, EDRM

Proportionality-based eDiscovery is a goal that all corporate litigants seek 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. Litigants that take full advantage of the proportionality rule can greatly reduce cost, time and risk associated with otherwise inefficient eDiscovery.

While there is a keen awareness of proportionality in the legal community, realizing 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 incurs extensive labor 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.

However, traditional eDiscovery services typically involve manual collection, followed by manual on-premises hardware-based processing, and finally manual upload to review. These inefficiencies extend projects by often weeks while dramatically increasing cost and risk with purposeful data over-collection and numerous manual data handoffs. The good news is that solutions and processes addressing the first half of the EDRM involving collection and processing are now far more automated than they were even a few years ago.

Recently EDRM hosted a webinar addressing these issues – “Operationalizing your eDiscovery Process to Realize Proportionality Benefits” – and more specifically, as the title reflects, explored how to operationalize your eDiscovery process to achieve lower costs, improve early case strategy, realize faster time to review and reduce overall legal risk.

Here are some key takeaways from the webinar:

  • A detailed legal analysis was provided highlighting the case of Raine Group v. Reign Capital, (S.D.N.Y. Feb. 22, 2022), which applied proportionality at the point of identification and collection, not just production. The court endorsed the use of detailed and iterative keyword searches to identify and preserve potentially relevant ESI.
  • A demonstration was shown on how to enable detailed and proportional search criteria, applied in-place, at the point of collection. Such a capability is key to realizing the blueprint for targeted and proportional ESI collection outlined in Raine Group.
  • The speakers also discussed how organizations should move upstream to focus on information governance to reduce the data funnel as soon as possible. The new generation of eDiscovery technology in the areas of collection, identification, analytics, and early data assessment, enables enterprises to operationalize proportionality principles.

The webinar culminated with the notion that an optimized process that applies proportionality upstream at the collection and identification stage reduces the data volume funnel by as much as 98 percent from over-collection models, yet with increased transparency and compliance. A link to the recording from the webinar can also be accessed here.

Leave a comment

Filed under Best Practices, Case Law, Case Study, ECA, eDiscovery, Enterprise eDiscovery, ESI, Preservation & Collection, proportionality

Tagged as , ,

October 4, 2022 · 9:49 AM

Flawed Collection Methods Prevent TAR and Other Applications of Analytics on Social Media Evidence

By John Patzakis

Every litigator and eDiscovery practitioner is aware of the critical importance of analytics as a tool to support their cases. AI-driven analytics supercharges compliance investigations, data security, privacy audits, and Technology Assisted Review (TAR) of documents, emails, social media and other web-based items. AI machine learning employs mathematical models to assess enormous datasets to gain deep insights into key information. This enables the identification of discrete and hidden patterns in thousands of emails, social media posts and other electronic files to categorize and cluster documents by concepts, content, or topic.

However, it is important to understand that such a powerful capability requires the extracted text and metadata of the subject documents, emails and social media posts. So when examiners resort to screenshots, including flat file PDF image captures, this prevents the use of game-changing analytics in your case. Screenshots do not natively preserve the subject text or metadata and are useless if fed into analytics engines. This is a major disconnect with many eDiscovery practitioners who may not fully understand that by utilizing print screen, they are forfeiting their clients’ ability to utilize otherwise game-changing analytics on the social media and other web-based data they are collecting.

Bobby Malhotra, eDiscovery team co-lead at Munger Tolles highlighted this point in a recent webinar addressing the importance of native file collection for social media evidence: “If you are on a matter that is going to be very data intensive in terms of collecting voluminous amounts of data from social media sites, and you are going to need to mine through that data to understand what happened and get the relevant context (with an AI engine) the only way to really do that is to collect the full text and metadata, and so, screenshots will not suffice.” Malhotra emphasized that this is a “really critical point regarding the analytics process as a lot of people don’t think about that.”

In fact, not only will screenshots omit text and metadata, the screenshot will create a false record if introduced into the review and analytics workflow as the metadata of the screenshot itself will be completely different that the metadata of the original native object. For these reasons, it is important under an attorney’s duty of competency related to eDiscovery technology, to understand the implications of not collecting social media and web based evidence in native format, and strongly consider utilizing best practices technology to properly collect and preserve this critical source of evidence.

Leave a comment

Filed under Authentication, Best Practices, Data Audit, eDiscovery & Compliance, ESI, law firm, Preservation & Collection, Social Media Investigations, Social Media Metadata

Tagged as , , , , ,

September 20, 2022 · 10:46 AM

The Traditional Workplace is Not Coming Back, with Major Implications for eDiscovery

By John Patzakis

The world has in many ways returned to life as it was prior to the pandemic. Restaurants and hotels are packed again. Children are all back in their classrooms. Rock bands and philharmonics are playing in front of full audiences. But this is not so for the office.

Only about a third of knowledge workers are back in the office more than once a week, but, according to CNN, only 5 percent of employers are requiring in-office attendance five days a week. And it doesn’t look like these trends are going to change dramatically any time soon. In fact, the trend toward remote work should continue as office leases continue to expire. The vast majority of knowledge workers prefer some form of hybrid or remote work, and executives are increasingly coming to accept that reality. Remote and hybrid work is here to stay. And this has major repercussions for eDiscovery practices.

This is because 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 for the new era of remote and distributed workforces. 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. 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 20 gigabytes of email and documents, all 20 gigabytes must be copied and transmitted over the network, where it is then searched, all of which takes at least a day or so per computer. So, most organizations choose to force collect all 20 gigabytes. But while this was merely inefficient and expensive pre-pandemic, it is now untenable with the global remote workforce.

Solving this collection challenge is X1 Enterprise Collect, which is specially designed to address the challenges presented by remote and distributed workforces. X1 enables enterprises to remotely, quickly and easily search across up to thousands of distributed endpoints and data servers from a central location. Legal and compliance teams can 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.

X1 operates on-demand where your data currently resides — on desktops, laptops, servers, or 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.

Leave a comment

Filed under Best Practices, ECA, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, Preservation & Collection

Tagged as , , , , , , ,

August 30, 2022 · 11:36 AM

5 Reasons Why Native Format Collection is Essential for Social Media Evidence

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 very limited value, as what they generally entail is a screenshot pdf image file without searchable text or metadata, other than what is visible on the image itself. For this reason, X1 put in the historical and ongoing work and R&D investment, so that its users would have native post-level collection and parsing to ensure accuracy, key metadata collection, court authentication, and evidentiary completeness of the collected data. Nothing short of those capabilities are acceptable.

To further explain why screenshot will not suffice, here are 5 reasons why native, post-level collections are essential when preserving and seeking to produce social media evidence for judicial purposes:

  1. Defensibility and Authentication of Evidence:

    Many courts have rendered “smoking gun” and other key web-based evidence worthless because the proponent offered a simple printed copy of a social media webpage, and thus failed to meet evidentiary authentication requirements. (See Moroccanoil vs. Marc Anthony Cosmetics, 57 F.Supp.3d 1203 (2014), (Facebook screenshots inadmissible in a trademark infringement without supporting circumstantial information). Commonwealth v. Mangel 181 A.3d 1154 (2018) (Court disallows Facebook screenshot as evidence due to lack of supporting metadata),

    Another key decision is Edwards v. Junior State of America Foundation, No. 4:19-CV-140-SDJ, (US Dist. CT, E.D. Texas April 23, 2021), which applied the best evidence rule to social media evidence. The court ruled that the metadata and full context of the native files were essential to satisfy the Best Evidence Rule. The court held that screenshots were not an output that accurately reflected the substance and context of the native file, since they could not show that the messages were authentic, nor could they “be used to prove that (the Plaintiff) sent the Facebook Messages contained in the screenshots.” Failure to produce the native files prejudiced the Defendants “of the ability to substantiate or refute the authenticity of the alleged messages.”

    With native post-level collection, all critical metadata is captured and preserved, in full context, and post-level hash values are generated at the point of collection. For these reasons, X1 Social Discovery is the gold standard for evidentiary authentication of social media and web-based evidence.

  2. Text Searchable and Sorting of Posts

    X1 Social Discovery automatically indexes all text and metadata of all collected social media posts, comments, and web pages at the time of collection. This enables text and filtering across up to tens of thousands of social media posts, allowing the examiner to immediately hone in on the relevant evidence. Screenshots must be processed further with Optical Character Recognition (OCR), a process which is unwieldy, expensive and not workable in large volume matters.

  3. Comments Provided in Line and in Context

    Comments to social media posts are often critical evidence. With screenshots, associated comments to a post are not collected, or at best are truncated and not displayed inline. 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 contextual display is preserved throughout the investigation process, including through the generation of robust load files that preserve date stamps, other key metadata, and family post identification with associated comments.

  4. Analytics Support

    Analytics for investigation and eDiscovery purposes, such as link analysis, clustering and technology assisted review (TAR), operate on the text and metadata of the subject documents, emails and social media posts. Resorting to screenshots, including flat file pdf image captures, effectively prevents the use of game-changing analytics in your case. To take full advantage of analytics for social media and web-based evidence, native, post-level collections are essential.

  5. Seamless Upload in Review Platforms (No processing needed).

    Some believe that screenshots of social media and web-based evidence save time and money. Nothing could be further from the truth. Screenshots generate flat images that do not enable effective text extraction, and it is impossible to cull, process, and effectively output to attorney review platforms such as Relativity. Because of these limitations, litigants must incur dramatically increased processing costs and time delays to make the data workable in an investigative or litigation workflow. For instance, the images must be run through OCR, the various requisite metadata fields must be manually entered, and the truncated screen shots reassembled into context so they appear and read as they did in their original state, as well as other painstaking steps. All this will typically cost up to tens of thousands of dollars in additional processing fees.

Employing more automated means, such as X1 Social Discovery, enables the examiner to quickly collect entire web pages and publicly available or otherwise properly accessed social media accounts, which can be hundreds of pages long. This comprehensive and thorough collection allows the examiner to collect far more potential evidence, preserving all relevant metadata, and having that evidence be immediately searchable and reviewable in a highly effective integrated review and analytics platform. All this enables a very fluid and scalable workflow that dramatically reduces downstream processing and review platform upload costs.

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, please contact us for more information.

Leave a comment

Filed under Authentication, Best Practices, Data Audit, eDiscovery, Preservation & Collection, Social Media Investigations, Social Media Metadata

August 23, 2022 · 10:36 AM

Proportionality Focus Presents Challenges and Opportunities for eDiscovery Service Providers

By John Patzakis

Proportionality is now the hottest legal issue involving eDiscovery, with the largest number of eDiscovery-related cases in the past year addressing the subject. Relativity eDiscovery attorney David Horrigan recently led an informative webinar “Data Discovery 2022 Mid-Year Update” (access recording here) reporting that 642 published court decisions tackled legal considerations involving proportionality in discovery in the first half of 2022. As only a very small number of cases involve a published decision that we can access online, it is safe to assume that several thousand more cases litigated the proportionality issue during this time period.

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.

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 Raine Group v. Reign Capital, (S.D.N.Y. Feb. 22, 2022), and collect only the data that is responsive to such specific criterion. Both McMaster and Raine Group decisions apply proportionality at the point of identification and collection, not just production. 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 is targeted, automated and proportional, instead of one that is overbroad and manual.

However, traditional eDiscovery services typically involve manual collection, followed by manual on-premise hardware-based processing, and finally manual upload to review. These inefficiencies extend projects by often weeks while dramatically increasing cost and risk with purposeful data over-collection and many manual data handoffs. However, the first half of the EDRM involving collection and processing are now far more automated than they were even a few years ago. The purchasers of eDiscovery services and software have clearly noticed and are demanding adaptation from vendors, especially service providers. This new normal of proportionality focus presents a very significant challenge to many service providers.

So how can services firms adapt to this new paradigm? Here are few strategies:

First, services firms should move upstream to focus on information governance to reduce the data funnel as soon as possible. The new generation of eDiscovery technology in the areas of collection, identification, analytics and early data assessment, enables enterprises to operationalize proportionality principles. However, this ideally involves high-end strategic consulting to bring these processes together and operationalize them. This also enables services firms to develop direct and ongoing relationships with corporate law departments, IT and other key corporate stakeholders.

Second, service providers should pivot to managed services (like most other IT consultants) instead of a reactive project-based mindset. Fire drill eDiscovery projects by definition lack any process and result in data-overcollection and many other inefficiencies that thwart the realization of proportionality principles. Establishing a managed service relationship “bakes in” the service provider into an established eDiscovery workflow, including information governance, pre-collection analytics, targeted collection and integrated processing and hosting to enable far more proportional eDiscovery efforts, across multiple matters per client.

Third, services firms should find ways to develop or otherwise acquire their own differentiating tech or establish meaningful partnerships with tech platform providers. These partnerships should entail more than merely using the software, but the development of proprietary workflows or even technical integrations that enable unique service offerings that operationalize proportionality.

At the end of the day, eDiscovery is a technical process that is subject to technology disruption just like any other technology-based services industry. eDiscovery services firms that not only adapt to but embrace this change as a strategic opportunity will be the ones who prosper the most.

Leave a comment

Filed under Best Practices, collection, ECA, eDiscovery, Enterprise eDiscovery, Preservation & Collection, proportionality, Relativity

Tagged as