Category Archives: eDiscovery

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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Filed under Authentication, Best Practices, ECA, eDiscovery, ESI, Preservation & Collection

Moving Beyond Litigation Support

By Sonam Sharma, Senior Manager, X1
(Originally published on ILTAnet.org, February 19, 2021)

The age-old adage of change being the only constant has never been truer than in today’s times. With pandemic induced disruptions fast-tracking an already burgeoning impact of technology in day-to-day proceedings of your business and having a likewise impact in the lives of our clients, the ability to manage and react to this change must make all the difference between the longevity of your business and ensuring that you stay ahead of the market.

Over the last decade, a lot of energy has been spent towards understanding the pain points of the lawyers while constantly examining ways to reinvent to stay ahead of the competitors of varying scale, capabilities, and customer base. Change is inevitable but the transformation is a conscious choice. To navigate through a highly fluctuating market, we are witnessing law firms embracing change and revisiting their litigation support services and strategies to develop a unified and client-centric approach for their organizations. A focus on operational efficiency is becoming more about survival and excellence rather than a good-to-have organization priority.

So, what is this change that we are talking about?

The Legal industry is a fast pace world. Clients are rapidly outgrowing conventional models, largely as a result of how they are using technology in their everyday lives. As the expectations of the clients are ever-evolving, legal professionals need to find ways of delivering more seamless and client-centered experiences.

Client-facing services roles such as litigation support, legal assistants, and paralegals are the first points of contact for the commencement of legal work. These professionals play an important role in ensuring case proceedings go as smoothly as possible. However, due to the lack of synergies and functional silos between these groups the operational model can become obsolete/misaligned. “Over time, to maintain the efficiency of teams, it is important to focus on communications and the improvement of processes and procedures,” said Ardian Triantoro, Practice Support Manager, Schulte Roth & Zabel LLP.

To mitigate risks arising from process inefficiencies and to overcome organizational barriers, law firms need to bolster their capabilities by combining teams dealing with legal operations (such as clerks, paralegals, attorneys, and technical support).  and develop communication strategies between them. The goal is to streamline the legal operations workflow to provide a connected experience to the client.

There’s no better time to start the transformation than now!

The more progressive law firms are methodically building and systematically delivering work in-house. Leveraging a base of existing skills, experience, and vendor relationships, organizations have merged their Litigation Technology Support and operational support teams into the Practice Support department to deliver value to customers.

Leading law firms such as Kirkland & Ellis, Latham & Watkins, Baker & McKenzie, Schulte Roth & Zabel, LLP have implemented new ways to approach critical back-office operational functions. “For the law firms, it is not just about implementing the technology but to shift the focus from commoditized services to high-value expertise to recalibrate a more predictable pricing model that generates a cost-effective outcome of the case,” said Jared Michael Coseglia, Founder & CEO of award-winning legal staffing firm TRU Staffing, Inc.

So where can you start?

To prepare for the future, you should begin with a focus on the following areas:

  • Process: Strategize the ebbs and flows! Develop a communication map to help attorneys and staff members better understand the firm’s operating functions and how it fits together. Design effective processes that drive transparency and have a clear description of tasks and outcomes.
  • People: A starting point for assessing the firm’s capabilities is to determine skills, competencies, the talent available and create a capability map. Align skills with the evolving business needs and identify partnership opportunities with a focus on enabling attorneys to focus on long-term strategic decision-making; and
  • Technology: Understand the business needs and align the technology with the law firm organizational framework so that it is supporting the firm’s overall business objectives. It is about using technology to improve the old ways of working.

The more things change, law firms will see increased benefits from…

  • Seamless Client Service: Today, clients expect effortless experience from start to finish. It is critical to serving as a team member to the clients. By streamlining the processes internally, the practice support department acts as an all-in-one suite that law firms can leverage to build a repeatable and defensible process for optimal service delivery.
  • Efficiency Across Legal Ecosystem: Litigation professionals are masters in their field and have worked with a multitude of attorneys on countless cases over time. By utilizing in-house expertise, law firms can establish robust business practices to allow for quick and effective decision-making.
  • Reduced Costs: Staying on top of technology and constantly building expertise enables law firms to design custom-tailored solutions designed for cost efficiency and operational excellence.

Key Takeaway:  The problem is that this is easier said than done, but the actual mantra is not perfection; it is an iterative progression!

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Filed under Best Practices, eDiscovery, Information Management, law firm, Uncategorized