Category Archives: Case Law

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.

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

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June 28, 2022 · 1:39 PM

Relativity and X1 Publish Updated Joint Legal Whitepaper on ESI Collection Best Practices

By John Patzakis

Relativity and X1 have published an updated joint legal whitepaper addressing full-disk imaging as a disfavored collection practice in civil litigation, with Relativity eDiscovery attorney David Horrigan as the lead author. This paper is a substantive update from the original published a year ago, adding discussion of important and relevant new case law published in the past 12 months. The paper notes that “if the preliminary data from the first five months of 2022 are any indication, we may be seeing that the law of proportionality is becoming more settled — and that courts continue to disfavor full-disk imaging.”

The paper delves into all the legal reasons, including detailed analysis of case law, the Federal Rules of Civil Procedure, and the Sedona Principles establishing why forensic collection is not required in civil litigation. The paper primarily focuses on the principles of proportionality in its legal analysis as well as case law issued prior to the 2015 amendment to the Federal Rules of Civil Procedure, which gave greater prominence and clarification of the proportionality rules.

One of the recent updated cases included is Besman v. Stafford, where the appellate court reversed and remanded a trial court’s order of a forensic examination of a law firm computer, holding the trial court erred in failing to take precautions to protect the privileged and confidential information on the device. “Generally, courts are reluctant to compel forensic imaging, largely due to the risk that imaging will improperly expose privileged and confidential material contained on the hard drive,” Judge Anita Laster Mays wrote for the appellate court.

This is an important topic as a key problem in eDiscovery that drives inefficiencies and higher costs is that default collection methods often involve full-disk imaging—a forensic examination of an entire computer—when searching for responsive data. As the whitepaper notes, “it turns out full-disk imaging is not required for most eDiscovery collections. In fact, courts often disfavor the practice.”

A copy of the whitepaper can be found here.

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Filed under Best Practices, Case Law, collection, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, proportionality, Relativity

June 15, 2022 · 12:33 PM

Industry Experts: Proportionality Principles Apply to ESI Preservation and Collection

By John Patzakis

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 overbroad eDiscovery production. In a recent webinar, eDiscovery attorney Martin Tully of Redgrave LLP, addressed how to use processes and best practices to operationally attain this goal, particularly in the context of preservation and collection. In addition to being a partner at the Redgrave firm, Tully is currently the chair of the Steering Committee of the Sedona Conference Working Group on Electronic Document Retention and Production (WG1), providing additional import to his comments on the subject.

During the webinar, Tully noted that the “duty to preserve is directly aligned with what is within the scope of discovery….so if something is not within the scope of discovery – that is its either not relevant or its not proportional to the needs of the case — then there should not be an obligation to preserve it in the first place.” Tully discussed at length the recent case of Raine Grp. v. Reign Capital, (S.D.N.Y. Feb. 22, 2022), which holds that under FRC 26(a), parties “have an affirmative obligation to search for documents which they may use to support their claims or defenses.” In meeting these obligations, the court provided that a producing party may utilize search methodologies, specifically mentioning search terms. Tully explained that the court—in addressing the concept of reasonable, proportional discovery under the Rules – provides that producing parties are obligated to search custodians and locations it identifies on its own as sources for relevant information as part of its obligations under Rule 26, but that such identification and collection efforts should be proportional.

Further to these points, Tully weighed in on overbroad practice of full-disk imaging, noting that it should not be the default practice for eDiscovery collection: “Too often there is a knee jerk approach of ‘let’s just take a forensic image of everything – just because.’” According to Tully, alternative and more targeted search and collection methods were more appropriate for eDiscovery and can better effectuate proportional efforts: “Indexing in-place is key because it doesn’t just preserve in-place and reduce costs, but it can give you insight (into the data) to further justify your decision not to collect it in the first place, or if you need to, you are in much better shape to go back and collect the data in a tailored and focused way.”

Co-presenter Mandi Ross, CEO of Insight Optix also provided keen insight, outlining her typical workflow applying the aforementioned proportionality concepts through custodian and data source ranking and keyword searching performed in an iterative manner to identify key custodians, data sources, and the potentially relevant data itself. To effectuate this, Mandi noted that the enterprise eDiscovery collection and early data assessment process should enable a targeted, remote, and automated search capability, with immediate pre-collection visibility into custodial data.

In fact, both Tully and Ross emphasized in their comments that none of the cost-saving, targeted collection efforts permitted under the Federal Rules can be realized without an operational capability to effectuate them. Ideally, the producing party can employ a defensible, targeted, and iterative search and collection process in-place, prior to collection to effectuate the proportional discovery process approved by the court in this decision. However, without such a capability, the alternative is an expensive, over-collection effort, where the data is searched post collection. Enabling the search iteration and targeted collection upstream brings dramatic cost savings, risk reduction, and other process efficiencies.

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

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Filed under Best Practices, Case Law, Case Study, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, Information Management, Preservation & Collection, proportionality

April 13, 2022 · 11:32 AM

Case Law Update: Federal Court Endorses Targeted Search Term Based ESI Collection

By John Patzakis

A recent decision from the Southern District of New York provides that the parties’ have obligations to conduct reasonable searches during discovery, but such searches may be targeted. The court invoked the proportionality concepts within the Federal Rules of Civil Procedure, which govern the production of Electronically Stored Information (“ESI”). In Raine Grp. v. Reign Capital, (S.D.N.Y. Feb. 22, 2022), the plaintiff, “a merchant bank with over 100 employees,” sued defendant “Reign Capital LLC, a two-person real estate development and management firm, for trademark infringement and unfair competition based on Defendant’s” name. After unsuccessful meet and confer efforts to negotiate an ESI protocol, the Court ruled on two key issues in dispute—the scope of the plaintiff’s search and collection obligations and the formulation of certain search terms.

The court, in its written decision, first articulated a party’s general obligations under the Federal Rules of Civil Procedure, noting that Federal Rules of Civil Procedure 26 and 34 “require parties to conduct a reasonable search for documents that are relevant to the claims and defenses.” The court further noted that under Rule 26(a), “Parties have an affirmative obligation to search for documents which they may use to support their claims or defenses.” In meeting these obligations, the court provided that a producing party may utilize search methodologies, specifically mentioning search terms. The court observed that, “in this instance, the producing party must include and utilize search terms it believes are needed to fulfill its obligations under Rule 26 in addition to considering additional search terms requested by the requesting party.” The court—in addressing the concept of reasonable, proportional discovery under the Rules—continued: “In other words, the producing party must search custodians and locations it identifies on its own as sources for relevant information as part of its obligations under Rules 26 and 34.” Importantly, the court noted that “an ESI protocol and search terms work in tandem with the parties’ obligations under the Federal Rules…”

Additionally, the court advised the plaintiff to search not only the relevant custodians’ direct data sources, but also “other sources of data such as shared drives that are not particular to a specific custodian that should be searched as part of Plaintiffs’ obligations under Rule 26. Plaintiff is expected to conduct a reasonable search of such non-custodian sources likely to have relevant information.” The court here is making an important point about shared network drives, and that the parties have a duty to search them for relevant information. We have previously blogged about the importance of network file shares and how to effectively conduct eDiscovery on those critical data sources.

In regard to the formation of search terms, the court, explained that “[s]earch terms, while helpful, must be carefully crafted. Poorly crafted terms may return thousands of irrelevant documents and increase, rather than minimize the burden of locating relevant and responsive ESI. They also can miss documents containing a word that has the same meaning or that is misspelled.” The court further correctly advised that overly broad search terms “are typically not sufficiently targeted to find relevant documents. Modifiers are often needed to hone in on truly relevant documents.” This decision is very important as the court endorses the concept of utilizing highly targeted search terms and other parameters to defensibly collect and preserve potentially relevant ESI.

Additionally, this decision illustrates the necessity of an iterative, in-place search and collection process. None of the cost-saving, targeted collection efforts outlined by the court can be realized without an operational capability to effectuate them. Ideally, the producing party can employ a defensible, targeted, and iterative search and collection process in place, prior to collection to effectuate the proportional discovery process approved by the court in this decision. However, without such a capability, the alternative is an expensive, over-collection effort, where the data is searched post collection. Enabling the search iteration and targeted collection upstream brings dramatic cost savings, risk reduction, and other process efficiencies.

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February 15, 2022 · 11:13 AM

How X1 Social Discovery Uniquely Meets the Challenge of Social Media Evidence Collection

By John Patzakis

Social media and other web-based data is relevant to nearly every legal case and investigation. 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 last year for all of 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 to this major technical disruption, all other social media evidence collection tools either exited the market, changed their model to services, or provided flat file screen shots as their output…except for X1 Social Discovery.

X1 put in the work and R&D investment, so that its users would have 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.

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 for evidentiary authentication. All this enables a very fluid and scalable workflow that dramatically reduces downstream processing and review platform upload costs.

The importance of this distinction was clearly underscored by the court’s decision in 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 plaintiffs’ had sought to offer screenshots as evidence of the Facebook communications instead of the deleted native files. 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.” In a key passage the court states:

Here, the screenshots will not suffice as an “original” because the screenshots are not an “output” that “accurately” reflect the information. Only native files can ensure authenticity. Additionally, although the Best Evidence Rule allows for an original “photograph” to prove the contents of the photograph, this does not mean that the screenshot here can be used to prove that Harper sent the Facebook Messages contained in the screenshots.

Edwards demonstrates that the collection and preservation of full native social media posts is vital to both that evidence’s authentication and obtaining the full context and substance of the posts under the Best Evidence Rule. The court found that screenshots, which truncate social media posts and omit key metadata, do not suffice. As a result, attorneys should be aware that courts are unlikely to find that screenshots alone are sufficient to authenticate a social media post and will likely insist on the native files.

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.

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