Category Archives: law firm

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

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

Meeting Modern Discovery Demands with RelativityOne Collect and X1

By John Patzakis

As we’ve all heard time and again, 2020 was a transformative year—and in our space, it has had a huge impact and really changed the way people work.

With widespread teams, evolving data types, growing data volumes, and deadlines getting shorter—well, the entire e-discovery process has the potential to spiral out of control.

But not for those who are well prepared to meet these modern challenges.

Here at X1, we’ve been working hard on giving modern organizations the technology they need to get data identified, collected, and ingested with maximum effectiveness for years. Now, with X1 integrated into RelativityOne via RelativityOne Collect, users of the industry-leading SaaS e-discovery platform can accomplish this in more targeted and faster ways than ever before.

Let’s take a look at what this integration means, and why it offers non-negotiable capabilities to today’s legal teams.

A Remote Workforce

Work from home has rapidly accelerated and will likely not dramatically reverse in the foreseeable future. Many of us will continue to work remotely for months to come—or perhaps permanently.

These trends were already ramping up, but 2020 hammered the accelerator on telecommuting and remote working. According to Global Workplace Analytics, before the COVID-19 pandemic, just 3.6 percent of US workers worked from home multiple days a week. That number is now estimated at 25-30 percent.

This may be a boon for work-life balance, but it poses big complications for data collection in response to litigation and investigations. Historically, this process has required disk imaging or other methods that often prompted collections to be performed in person. In a shared office, that might be easy to accomplish (in fact, it might be too easy, resulting in vast over-collections of data in many cases). But with everyone working from home and confronted by concerns about social distancing, travel restrictions, and possible quarantines, it quickly became untenable last year.

Thanks to those circumstances and the increased use of the cloud for data storage, demand for web-enabled collections is up—by a lot.

RelativityOne Collect gives legal teams the ability to index and search on data in place, analyze the contents of a data source, and categorize data quickly to identify what warrants collection and what can be eliminated—all before it’s pulled from the source and brought into a workspace, and from anywhere. Previously, RelativityOne Collect was able to directly connect with Office 365 and Slack sources to perform these remote collections; with the integration of X1’s innovative endpoint technology, Collect can now gather data from additional sources like email and files on laptops, servers, or network locations.

Then, the targeted data is seamlessly imported into Relativity—no extra processing, downloads, uploads, or risky data hand-offs required.

This means a streamlined process that can be performed from anywhere, on multiple custodians at a time, and across many of the most common data sources. Forward-thinking teams are saying goodbye to cumbersome and expensive ESI collection and processing tools in favor of this bright new world.

Proportional Data Decisions

Another trend that began to take hold over the last decade is the move toward targeted collections. Gone are the days when full disk imaging was standard practice. Today’s sources are far too densely packed with data to assume everything needs to be captured for every matter. Over-collecting means not just increased costs for data storage on your matters, but huge amounts of time wasted on reviewing unnecessary documents—and all of this adds up to proportionality violations.

The courts agree: Complete disk imaging is by and large unwarranted in civil litigation. (In particular, see Diepenhorst v. City of Battle Creek.)

Instead, what is needed is a middle ground approach in the form of a targeted, automated, and remote collection that provides documentation for defensibility and an emphasis on speed to review.

With traditional processes, there is an inability to quickly and remotely search across and access distributed unstructured data in-place. e-Discovery teams may end up spending weeks or more collecting data, with traditional workflows taking as long as 30 days to complete before data is available for review.

In addition to putting deadlines and case strategy efforts in jeopardy, these delays can increase the risk of errors and security vulnerabilities as data is moved between systems and team members rush to get things done. With X1 endpoint collections integrated into Collect, data can be accessed, searched upon, culled, and ingested directly into your review workspace with no go-betweens required—so your targeted data sets are defensible and in good hands from start to finish. Oh, and that 30 days is cut down to mere hours.

This enables much needed efficiencies in the e-discovery process in the face of growing data volumes, widespread teams and data sources, and diversified data types, because you can target which data you bring into your workspace before it’s published (and have detailed reports on those decisions to back up your final collection). You’ll see benefits not just in greater speed to review, but also greater speed in review, because you’ve eliminated a lot of inefficiencies from the get-go. Plus, you’re protecting potentially privileged or secret information that doesn’t need to be pulled into a project in the first place.

Process Democratization

Finally, there’s a third evolving trend in the collection space. For a long time, there has been a perception that doing collections is difficult, and requires a lot of specialized training or certifications. With the proliferation of the cloud and new data sources, however, this has started to shift. Most e-discovery cases do not require collection by a certified forensics examiner, especially since not every drive needs to be imaged. Instead, as the industry has moved more toward targeted collections, the accessibility of the process has greatly improved.

Additionally, today’s legal teams are under great pressure to do more with less—less money, less time, and less help. As a result, they need to be empowered to perform some collections themselves even if they don’t have that highest degree of training and expertise. Fortunately, cases using targeted e-discovery collections and collections from cloud sources don’t generally require such extensive training.

When organizations are given the tools to do some of this work internally, they can save forensic resources for when they’re truly needed (on really hairy or dicey matters).

RelativityOne Collect’s easy-to-use interface lets any individual perform those type of targeted e-discovery and cloud collections with minimal training. And as a growing number of organizations are experiencing a greater need to remotely collect from computer endpoints as well, Relativity and X1 have partnered to build an integration to help in-house teams do that, too. 

So, while numerous courts have held that custodian self-collection is simply not defensible, capable and well-equipped legal teams can and do collect data from custodians in a defensible and secure manner. Then, those same team members can take what they’ve learned from this at-a-glance view of the origins of their data sets, and bring that knowledge to the rest of the e-discovery or investigation project.

The result is streamlined, end-to-end e-discovery in a single, secure, and easy-to-use platform.

And we will be demonstrating this integration live on our February 24 joint webinar with Relativity: “RelativityOne Collect and X1: Streamlining the Global Collection Process.” Please join us by registering here.

This blog post is also prominently featured on the Relativity blog site here.

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Filed under eDiscovery & Compliance, Enterprise eDiscovery, Information Management, law firm, Preservation & Collection

New York Appellate Court Allows “Data Mining” of Social Media accounts for Relevant Information

By John Patzakis

The New York Appellate Division allowed discovery into the non-public information of the social media accounts of a former professional basketball player relevant to his personal injury claims arising out of an automobile accident. In Vasquez-Santos v. Mathew 2019 NY Slip Op 00541 (January 24, 2019), the court held that the defendant may utilize the services of a “data mining” company for a widespread search of the plaintiff’s devices, email accounts, and social media.social-media-cases3

Vasquez-Santos is an extension of a large body of court decisions that allow discovery of a user’s “private” social media messages, posts and photos where that information is reasonably calculated to contain evidence material and necessary to the litigation. Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” according the Vasquez-Santos Court.

The Court found that the defendant “is entitled to discovery to….defend against plaintiff’s claims of injury,” and noted that the requested access to plaintiff’s accounts and devices “was appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities.”

Also noteworthy was the Court’s finding that while plaintiff did not take the pictures himself, that was of no import to the decision. He was “tagged,” thus allowing him access to the pictures, and thus populated his social media account.

This decision is consistent with the general rule that while social media is clearly discoverable, there must be a requisite showing of relevance before the court moves to compel full production of a litigant’s “private” social media.

This case illustrates that any solution purporting to support eDiscovery for social media must have robust public search and collection capabilities. This means more than merely one-off screen scrapes but instead an ability to search, identify and capture up to thousands of social media posts on an automated and scalable basis.

X1 Social Discovery has the ability to find an individual’s publicly available content and to collect it in an automated fashion in native format with all available metadata intact to enable systematic and scalable search, review, tagging and analysis. We heard from one major law firm that screen captures of a single public Facebook account took several hours, with the resulting images not searchable or organized into a case-centric workflow. Now with X1 Social Discovery, they are able to accomplish this full capture in seconds. This is critically important to conduct proper due diligence on a case and to better assist legal and investigative professionals to make the requisite showings for the full discovery of social media evidence in civil discovery, as in Vasquez-Santos.

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Filed under Best Practices, Case Law, Case Study, eDiscovery, law firm, Social Media Investigations