Category Archives: ECA

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

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.

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

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.

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

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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Filed under Best Practices, Case Law, ECA, eDiscovery, eDiscovery & Compliance, Enterprise eDiscovery, ESI, law firm, Preservation & Collection, proportionality

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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